Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CC894355
Premo, J.
I. Introduction
Very early in the morning on January 31, 2008, five men broke into a lawn and garden supply business and helped themselves to the power tools on display in the showroom. They loaded the tools into the back of a white cargo van and left the scene. The van was soon spotted by the police and a 30-minute chase ensued. In the course of the chase the occupants of the van tossed some of the loot--weed whackers, hedge trimmers, chain saws, and a portable power generator--out of the van and into the path of the pursuing police vehicles. The chase ended when the van came to a stop in the front yard of a residence at the end of a dead-end street.
Defendants Johnnie Lilly, Manuel Raymond Tejeda, and Chester Arthur Jeans were three of the five men in the van during the chase. They appeal from judgments entered after a jury found them guilty of burglary and other crimes. They raise issues relating to the sufficiency of the evidence, the adequacy of the jury instructions, the effectiveness of defense counsel, the propriety of multiple punishments, and the application of the recent amendment to Penal Code section 4019. We conclude that in sentencing defendants Lilly and Jeans, the trial court should have stayed the term for possession of burglar tools (§ 466) under section 654. We shall modify the judgment as to them and, as modified, affirm. As to Tejeda, we affirm the judgment.
Hereafter all unspecified statutory references are to the Penal Code.
By way of petitions for writ of habeas corpus, Jeans and Tejeda argue that they were deprived of the right to effective assistance of trial counsel due to their counsels’ failure to obtain certain expert opinion. We have previously ordered the petitions considered together with this appeal and will deny the petitions.
II. Facts
Witness Roy Wayne Patton lived in the City of Campbell, next to Highway 17 and directly across the street from Gardenland, a retail business that sells lawn, gardening, and construction equipment. Around 4:30 in the morning on January 31, 2008, Patton was awakened by the sound of glass breaking. He looked out his door and saw some people and a full-sized white Ford van near the entrance to Gardenland. One person was standing at the passenger’s side of the van looking around and at least two others were toward the rear of the van, going back and forth “carrying stuff” from Gardenland to the van. After an alarm went off, the person standing at the front of the van urged the others to hurry up. One man came from the back of the van and got into the driver’s seat. The man standing near the front got into the front passenger seat. Another man came around from the back and got in the side cargo door. Patton could not see if others got into the van by the rear door. Patton called 911.
Campbell police officers arrived at Gardenland at 4:40 a.m. Officer Steven Norris spotted the van and followed it quietly to the onramp to Highway 17. Officer Graciela Moro pulled in behind Officer Norris and the two officers activated their flashing lights. The van immediately accelerated to about 75 miles per hour, at which point Officer Norris turned on his siren. The van left the freeway at such a speed it nearly fishtailed. Up to the point where the van left the freeway and was traveling on surface streets all of the doors of the van had remained closed.
Officer Norris was following closely, only about 25 feet behind the van. The van was traveling at around 55 miles per hour, slowing to around 25 miles per hour when it turned corners. At some point after the van left the freeway, Officer Norris saw the rear door on the driver’s side open. A hand lifted an item and ejected it out the back of the van into the roadway. The item was a red structure about 18 inches square, which was later identified as a portable power generator. The van’s rear cargo door had opened only about 45 degrees, just enough to get the generator out. The generator landed in front of Officer Norris’s vehicle. He was able, within one second, to swerve and avoid hitting it. He was concerned about hitting the object because he was afraid he might crash and injure the car or himself.
Immediately after the generator came out, a “flurry” of other items flew out of the back and side cargo doors simultaneously. Officer Norris continued to swerve to avoid them. The items coming out of the side door “were not dropping along the ground, they were coming directly from the door straight out to the side with force.” It did not appear to Officer Norris that the items had simply fallen out of the van. During the chase Officer Norris never lost sight of the van.
Officer Moro recalled that about five to 10 minutes into the chase, as the chase was proceeding along Southwest Expressway, a door to the van opened and a generator came out. She saw Officer Norris swerve and she swerved along with him. Immediately thereafter, other items were thrown out of both the rear and side cargo doors at the same time. She observed both rear doors open and close. She continued to take evasive action to avoid hitting the objects and causing an accident and, she said, so “I don’t get hurt.” The items that came out of the van did not look as if they had just fallen out. Officer Moro saw hands but did not see any faces inside the van.
Agent Kelly Ross Bybee joined the chase behind Officer Moro. He noted that at some point, while the van was traveling about 40 miles per hour, the rear doors swung open and a hedge trimmer came out. Over the course of the chase, Agent Bybee saw six or seven items come out of the van, including a large red generator and one or two chainsaws. He reported to the dispatch center that the suspects were “dumping debris.” It seemed to him that the doors would close when the driver of the van hit the brakes and would fly open when the van accelerated. Agent Bybee “was more concerned about someone falling out of the van as a result of those doors opening and closing.” About 75 percent of the time the doors opened nothing came out.
Officer Brian Sessions drove the fourth police vehicle pursuing the van. He picked up the pursuit on Highway 17 and followed it off the freeway onto surface streets at the Hamilton Avenue exit. The van continued through the Willow Glen and Cambrian areas of San Jose for around 30 minutes, exceeding the posted speed limits and running through stop signs and red lights. Officer Sessions recalled that approximately nine items were tossed out of the van during the chase.
Officer Sessions’s car was equipped with a video camera that activated automatically when his forward red lights were activated. His camera recorded the chase to its conclusion. The recording was admitted into evidence and played for the jury. In it one can see a line of three police cars in front of Officer Sessions’s car with lights flashing, speeding along highways and residential streets, swerving at times, and taking turns at a high rate of speed. The van repeatedly turns corners, both left and right. Although the chase took place very early in the morning, there is other traffic on the roads. The narrow streets in the residential areas are lined with parked cars, shade trees, and, in some areas, garbage carts. The van itself is difficult to see in detail.
When the van came to a stop at a residence on a dead-end street, Lilly ran from the driver’s door but was apprehended by Officer Norris in the backyard of the residence. Officer Sessions apprehended the front seat passenger (Stacey Larve Brown), who had also fled to the backyard. Officer Moro found defendants Tejeda and Jeans and a third man, Robert Gonzalez, in the back of the van with their hands up. There were no passenger seats in the back of the van and the unsecured garden tools were thrown around the floor. San Jose Police scoured the path of the chase and recovered two generators, chain saws, a gas powered hedge trimmer, and a weed whacker.
A further search of the van uncovered a pair of bolt cutters in addition to the stolen garden equipment. The van’s ignition was damaged so that the van could not be started with a key. The lock on the rear cargo door was missing. Officer Sessions observed that the driver could not have reached either the rear or side cargo doors from the driver’s seat.
Vincente Quirarte was the van’s owner. The van had been stolen from his property in Fresno on or about January 26, 2008. At the time it was stolen it was full of candy, piggybanks, and piñatas. The last time he saw it the van’s ignition was intact and all the doors worked properly. Mr. Quirarte explained the operation of the van doors. He said that there are latches at the top and bottom of the driver’s side rear cargo door. The passenger side rear cargo door closes over the driver’s side rear door. Thus, in order to open the driver’s side rear cargo door one would have to open the passenger side door and release the latches on the driver’s side door in order to get the driver’s side door open. One would have to operate the doors in this way whether or not there was a working lock.
Gardenland’s owner, Glenn Kurimoto, was alerted to the burglary and discovered that the lock securing the front gate had been broken and the glass door to the building had been shattered. He determined that 26 items, having a total retail value of about $14,700, were missing. The bolt cutters found in the van did not belong to him.
III. Procedural Background
All five occupants of the van were charged with second degree burglary (§§ 459, 460, subd. (b) (count 1)), assault with a deadly weapon on a peace officer (§ 245, subd. (c) (count 3)), throwing substances at a vehicle with intent to cause great bodily injury (Veh. Code, § 23110, subd. (b) (count 4)), and possession of burglar tools (§ 466 (count 6)). Tejeda, Jeans, and Gonzalez (the three men in the back of the van) were charged with vehicle theft. (Veh. Code, § 10851, subd. (a) (count 2).) Lilly and Brown (the driver and front seat passenger) were charged with vehicle theft with a prior conviction of vehicle theft (Veh. Code, § 10851, subd. (a); § 666.5 (counts 8 & 9)) and resisting arrest (§ 148, subd. (a) (count 7)). Lilly was also charged with reckless driving while evading a peace officer. (Veh. Code, § 2800.2, subd. (a) (count 5).) The information contained a number of enhancement allegations, including the allegation that Lilly had suffered four prison priors. (§ 667.5, subd. (b).)
The case against Gonzalez was severed from the case against the other four defendants and the matter went to trial against Lilly, Tejeda, Jeans, and Brown. The jury found Lilly guilty of burglary, vehicle theft with a prior, reckless driving, possessing burglar tools, and resisting arrest. The jury found Lilly not guilty of assault with a deadly weapon on a peace officer and throwing substances at vehicles. The jury also acquitted Brown of the assault and throwing substances counts.
The jury found Tejeda and Jeans guilty of burglary, assault with a deadly weapon on a peace officer, and possession of burglar tools. The jury found them not guilty of vehicle theft and of throwing substances at vehicles with the intent to cause great bodily injury but guilty of the lesser included offense of throwing substances at vehicles.
Tejeda was sentenced to nine years in prison; Jeans was sentenced to 10 years. Tejeda’s term consisted of five years for the assault, three years concurrent for the burglary, and four years for four prison priors. Jeans’s 10 years included five years for the assault, two years concurrent for the burglary, plus a five-year serious felony enhancement under section 667, subdivision (a). Tejeda and Jeans also received six month concurrent jail terms, deemed served, for the throwing-substances and burglary tools counts.
The trial court rejected Lilly’s request that he be committed to the California Rehabilitation Center (CRC), stating as the reason for the denial the court’s belief that Lilly was the “ringleader.” The court sentenced Lilly to the upper term of four years in prison for vehicle theft with a prior and consecutive eight month terms for burglary and reckless driving for a total of five years and four months in prison. For the misdemeanors--possession of burglar tools and resisting arrest--the court sentenced him to concurrent six-month jail terms, deemed served. Lilly did not receive any additional time for the alleged prison priors because the trial court had found those allegations not to be true. The record of Lilly’s most recent conviction was not legible. And, although the court found that the allegations pertaining to the other three convictions were true, in the absence of the most recent conviction, the prior convictions were “washed out” by operation of section 667.5, subdivision (b) so that none of the prior convictions could be used to enhance Lilly’s sentence. Lilly received 120 days presentence conduct credit. (We shall include further details of Lilly’s criminal record in the discussion below.)
All defendants appealed. Brown has since withdrawn his appeal so that the case before us concerns only Lilly, Tejeda, and Jeans.
IV. The Appeal
A. Issues on Appeal
1. Is the evidence sufficient to support conviction of Tejeda and Jeans on count 3 (assault with a deadly weapon on a peace officer) and count 4 (throwing a substance at vehicle)?
2. As to Tejeda and Jeans, did the trial court err in giving CALJIC No. 2.02 instead of CALJIC No. 2.01?
3. As to all defendants, did the trial court err by instructing the jury in the language of CALJIC No. 2.15?
4. As to Lilly and Jeans, did the trial court err in failing to stay, under section 654, the terms for burglary, possession of burglar tools, and resisting arrest?
5. Was Lilly denied the right to effective assistance of counsel when his trial counsel failed to object to the trial court’s finding that Lilly was the ringleader?
6. Does the recent amendment to section 4019, which enhances conduct credits for presentence custody, apply retroactively such that Lilly is entitled to additional credit against his sentence?
B. Discussion
1. Sufficiency of the Evidence
The assault on a peace officer and throwing substances counts (counts 3 and 4, respectively) pertain to the garden tools that were ejected from the van while it was being pursued by the police. Defendants Tejeda and Jeans argue that the evidence was insufficient to find them guilty of either crime because no one saw who it was that threw the objects. The Attorney General argues that the circumstantial evidence is sufficient to support a finding that the two men either actually threw the objects or aided and abetted the person who did. We agree with the Attorney General.
We review a challenge to the sufficiency of the evidence under settled rules. “In addressing a challenge to the sufficiency of the evidence supporting a conviction, the reviewing court must examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence--evidence that is reasonable, credible and of solid value--such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] The appellate court presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citations.] The same standard applies when the conviction rests primarily on circumstantial evidence. [Citation.] Although it is the jury’s duty to acquit a defendant if it finds the circumstantial evidence susceptible of two reasonable interpretations, one of which suggests guilt and the other innocence, it is the jury, not the appellate court that must be convinced of the defendant’s guilt beyond a reasonable doubt. (Ibid.) ‘ “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 (2000) 23 Cal.4th 978, 1053-1054.)
In the present case, there is no direct evidence that either Tejeda or Jeans personally threw the objects into the road. The prosecutor had argued that all defendants were liable for counts 3 and 4 on the theory that the assault and throwing substances crimes were committed in furtherance of a burglary conspiracy or were the natural and probable consequences of that target crime. Indeed, Lilly and Brown, who could not have reached the rear cargo area from their location in the front passenger compartment of the van, could have been guilty of counts 3 and 4 only under one of those theories or as direct aiders and abettors of the crimes described by counts 3 and 4. But the jury acquitted Lilly and Brown of counts 3 and 4. Therefore, the jury necessarily rejected the conspiracy and natural-and-probable-consequences theories. That means that, in convicting Tejeda and Jeans of counts 3 and 4, the jury must have concluded that Tejeda and Jeans had directly participated in those crimes.
Defendants maintain that it is sheer speculation to identify either of them as having thrown the objects into the road. But the evidence supports a finding that all three men were involved in some way. The only reasonable inference one can draw from the fact that the objects came out of the rear and side cargo doors simultaneously is that at least two men were doing the throwing. The evidence also supports a finding that the third man, at minimum, aided and abetted the throwers. Officer Norris saw the generator come out of the left rear cargo door. He noted that the left door opened just enough to let the generator out, then promptly closed. There were latches on the left door and it could not open unless the right door was opened enough to allow the left one to swing free of the right door overlap. Officer Moro saw both rear doors open. Agent Bybee saw objects fly out of the van while the van was traveling at about 40 miles per hour and was concerned that someone was going to fall out of the open doors. There were no seats in the back of the van and it was full of untethered power tools. In order to toss a generator out the left rear door, one would have had to release the latches, open both rear doors, hold on to the doors in order to close them in the correct sequence after the generator was thrown out, and at the same time steady oneself in the moving vehicle and heave the generator into the roadway. Meanwhile, someone else would have had to open the side cargo door, grab the tools, steady himself while grabbing and throwing, and then close the door. All of this activity would be difficult to accomplish unless the third man helped, whether by handing out the objects to be thrown, opening and closing the doors, or steadying the men who were throwing the tools.
The video recording provides a visual image of the chase, showing the vehicles moving at a high rate of speed, repeatedly turning corners left and right. This image further supports a finding that it would have been difficult to maintain one’s balance moving about in the back of the van. It would have been that much more difficult to maintain one’s balance while singlehandedly accomplishing the tasks necessary to eject the tools in the manner the officers described. In short, there is ample circumstantial evidence to support a finding that all three men in the back of the van participated in throwing the tools out.
Defendants cite People v. Allen (1985) 165 Cal.App.3d 616, for the proposition that a 50 percent probability that a person is guilty is insufficient to meet the People’s burden of proof. In Allen, the state had the burden of establishing the defendant’s personal use of a firearm. (Id. at p. 626.) The evidence showed that either the defendant or his companion had used the gun. Because the facts gave equal support to each of two inconsistent inferences, neither inference could be deemed established. (Ibid.) Allen is distinguishable because there the defendant had to have personally used the firearm for the allegation to be found true. Here, it is not necessary that defendants personally threw the objects if they aided or abetted the throwing. Since the evidence supports a finding that all three men participated either by throwing or by helping, the probability that any one of them was a principal is 100 percent.
People v. Blakeslee (1969) 2 Cal.App.3d 831 (Blakeslee), which defendants also cite, is distinguishable as well. In Blakeslee, the question was whether the evidence was sufficient to support the defendant’s conviction for the murder of her mother. The evidence showed that both the defendant and her brother had quarreled with the victim, that both had access to a rifle, and that the defendant had offered police a false account of her movements, which, she testified, she did to protect the brother. This evidence was as consistent with the brother’s guilt as it was with the defendant’s. (Id. at p. 840.) Blakeslee concluded that, since the prosecution had not produced the murder weapon or any evidence linking the murder weapon to the defendant, the circumstantial evidence was insufficient to support a guilty verdict against her. (Ibid.) Aiding and abetting was not an issue.
In this case, unlike Blakeslee, Tejeda and Jeans could have been guilty as either direct perpetrators or as aiders and abettors. The evidence does not allow for a finding that anyone other than the men in the back of the van committed the crimes. Thus, the evidence was such that the inference defendants maintain would exonerate them--that one or both of them sat by and refused to participate--is one the jury was entitled to reject. (See People v. Snow (2003) 30 Cal.4th 43, 68, distinguishing Blakeslee, supra, 2 Cal.App.3d at pp. 837-840.)
Defendants argue that the evidence is insufficient to support a conviction of assault on an aiding and abetting theory because there is no evidence of their intent to aid an assault. Again, we disagree. To be guilty of aiding and abetting a defendant must have “act[ed] with knowledge of the criminal purpose of the perpetrator and with an intent or purpose either of committing, or of encouraging or facilitating commission of, the offense.” (People v. Beeman (1984) 35 Cal.3d 547, 560.) Assault is defined as an “attempt, coupled with a present ability, to commit a violent injury on the person of another.” (§ 240.) Thus, to be guilty of aiding and abetting the crime of assault with a deadly weapon on a peace officer, the aider and abettor would have to have intended to aid an attempt to commit a violent injury on the person of the officer.
The evidence and the reasonable inferences from that evidence support a finding that defendants were aware of and shared the criminal intent of whoever actually threw the objects. It is effectively undisputed that all three men in the back of the van had participated in the burglary. They were in possession of $14,000 worth of recently stolen power tools. They were being chased by four police cars while the driver of the van ran through red lights and stop signs and made multiple turns at high rates of speed. And, with the police cars directly behind them, at least two of the men threw a number of heavy garden tools into the path of their pursuers. On this evidence it is reasonable to conclude that all three men knew they were in trouble, did not want to get caught, and intended to aid their escape by attempting to commit a violent injury on their pursuers.
2. CALJIC No. 2.02
Tejeda and Jeans next argue that their convictions of counts 3 and 4 must be reversed because the trial court instructed the jury in the language of CALJIC No. 2.02 instead of CALJIC No. 2.01, both of which relate to the use of circumstantial evidence. The Attorney General maintains that CALJIC No. 2.01 was not required and, even if it was, the error was harmless. The Attorney General has the better argument.
In using CALJIC No. 2.02, the trial court informed the jury that defendants’ “specific intent or mental state” could be proved by the circumstances but only if the circumstances were consistent with the hypothesis that they possessed the necessary specific intent or mental state and were irreconcilable with any other rational conclusion. CALJIC No. 2.01 applies the same concept to circumstantial evidence used to prove any element of a crime. In general, CALJIC No. 2.01 is the proper instruction to use “unless the only element of the offense that rests substantially or entirely on circumstantial evidence is that of specific intent or mental state.” (People v. Marshall (1996) 13 Cal.4th 799, 849; see also People v. Hughes (2002) 27 Cal.4th 287, 347.)
The instruction, in full, was as follows: “The specific intent or mental state with which an act is done may be shown by the circumstances surrounding the commission of the act. [¶] However, you may not find the defendant guilty of the crime charged in counts 1, 2, 3, 4, 5, 6, 8 and 9, for the lesser crime unless the proved circumstances are not only, one, consistent with the theory that the defendant had the required specific intent or mental state, two, cannot be reconciled with any other rational conclusion. [¶] Also, if the evidence as to specific intent or mental state permits two reasonable interpretations, one of which points to the existence of the specific intent or mental state and the other to its absence, you must adopt that interpretation which points to its absence. [¶] If, on the other hand, one interpretation of the evidence as to the specific intent or mental state appears to you to be reasonable and the other interpretation to be unreasonable, you must accept the reasonable interpretation and reject the unreasonable.”
Tejeda and Jeans argue that the prosecution’s case against them on counts 3 and 4 was based principally upon circumstantial evidence so that CALJIC No. 2.01 would have been the proper instruction. We agree that the evidence is mostly circumstantial so that, arguably, the more inclusive instruction was required. But the error, if any, was harmless, because it is not reasonably probable the jury would have reached a different result had the court chosen to use the broader instruction. (People v. Watson (1956) 46 Cal.2d 818; People v. Johnwell (2004) 121 Cal.App.4th 1267, 1274-1275.)
In order to prove the assault and throwing substances charges the prosecution had to prove the guilty act--throwing the objects into the roadway--and the requisite mental states. As to the latter, the jury was correctly instructed. Thus, to the extent the circumstances could support conflicting inferences pertaining to defendants’ intent, the jury was properly advised in how to treat those inferences.
As to the guilty act, there is essentially no dispute that the items were intentionally ejected from the van. The main issue is who was involved in throwing them out. One rational inference to be drawn from the evidence is that all three men participated in throwing the objects into the road. Indeed, it would be irrational to conclude that only one man was able to throw the tools out in the manner described by the officers. Furthermore, evidence of the course and speed of the van, the sequence in which the doors were opened and closed and the tools ejected, the three men’s mutual involvement in the burglary, and their being found together in the back of the van at the end of the chase, allows for a rational inference that each man was involved by either throwing the objects or helping the throwers. The contrary inference--that one of the three sat by and refused to participate--is more speculative than rational. Since the jury was not presented with a situation in which it was required to assess two equally plausible inferences pertaining to any element of the crimes other than mental state, it is not reasonably probable that the verdict would have been different if the court had used CALJIC No. 2.01 instead of CALJIC No. 2.02.
3. CALJIC No. 2.15
With respect to the burglary, the trial court instructed the jury in the language of CALJIC No. 2.15, as follows: “If you find that a defendant was in conscious possession of recently stolen property, the fact of that possession is not by itself sufficient to permit an inference that the defendant committed the offense of burglary, as alleged in count 1. [¶] Before guilt may be inferred, there must be corroborating evidence tending to prove defendant’s guilt. [¶] However, this corroborating evidence need only be slight and need not by itself be sufficient to warrant an inference of guilt. [¶] As corroboration, you may consider the attributes of possession, time, place and manner, that the defendant had an opportunity to commit the crime charged, the defendant’s conduct or statements or any other evidence which tends to connect the defendant with the crime charged.”
Defendants argue that the use of the term “slight” renders the instruction constitutionally defective because it lowers the prosecution’s burden to show each element beyond a reasonable doubt. According to defendants, CALJIC No. 2.15 implies that one item of slight corroborating evidence in addition to possession of stolen property is sufficient even if other evidence casts doubt on defendants’ guilt. The argument, in various forms, has been repeatedly rejected by the courts of our state.
Defendants argue that CALCRIM No. 376, the newer version of the instruction, corrected the problem with CALJIC No. 2.15. The argument is more confusing than helpful because CALCRIM No. 376, although written in more plain language, is no different in effect than the CALJIC version. In pertinent part, CALCRIM No. 376 reads, “The supporting evidence need only be slight and need not be enough by itself to prove guilt. You may consider how, where, and when the defendant possessed the property, along with any other relevant circumstances tending to prove (his/her) guilt....” (CALCRIM No. 376 (Fall 2009 ed.) p. 160.)
CALJIC No. 2.15 is a cautionary instruction, admonishing the jury that evidence of possession of recently stolen property, standing alone, will not support a conviction for a theft crime. (People v. Barker (2001) 91 Cal.App.4th 1166, 1174.) The instruction is predicated on the principle that a defendant’s possession of recently stolen property is by itself sufficiently incriminating to warrant conviction if coupled with only slight corroboration by other inculpatory circumstances tending to show guilt. (Ibid.; and see People v. McFarland (1962) 58 Cal.2d 748, 754.) Notwithstanding California law rejecting their challenge to the instruction, defendants argue that United States v. Gray (5th Cir. 1980) 626 F.2d 494, 500, supports it. We disagree. In Gray, the jury was instructed on the elements of conspiracy and then told, “The Government need only introduce slight evidence of a particular defendant’s participation once the conspiracy is established, but must establish, beyond a reasonable doubt, that each member had a knowing special intent to join the conspiracy.” (Ibid.) The instruction directly addressed the defendant’s participation in the conspiracy and, because actual participation in the conspiracy is an essential element of a conspiracy charge, it created confusion over the prosecution’s burden to prove each element beyond a reasonable doubt. (Ibid.)
CALJIC No. 2.15, unlike the instruction in Gray, does not address the prosecution’s burden of proof. It merely cautions the jury that, if it found a defendant was in conscious possession of recently stolen property, that was not enough evidence from which it could infer guilt. As this court stated in People v. Williams (2000) 79 Cal.App.4th 1157, 1173 (Williams), “an inference of guilt may rationally arise from the concurrence of conscious possession and many other circumstances.” CALJIC No. 2.15 “correctly prohibits the jury from drawing an inference of guilt solely from conscious possession of recently stolen property but properly permits the jury to draw such an inference where there is additional corroborating evidence. As long as the corroborating evidence together with the conscious possession could naturally and reasonably support an inference of guilt, and that inference is sufficient to sustain a verdict beyond a reasonable doubt, we discern nothing that lessens the prosecution’s burden of proof or implicates a defendant’s right to due process.” (Williams, supra, at p. 1173.) In sum, the trial court did not err by instructing the jury in the language of CALJIC No. 2.15.
4. Section 654
Lilly argues that section 654 precludes separate punishment for the crimes of vehicle theft, burglary, and possession of burglar tools (the bolt cutters). He also maintains that section 654 prohibits punishing him for both reckless driving and resisting arrest.
Section 654 is intended to ensure that punishment is commensurate with a defendant’s criminal culpability. (People v. Perez (1979) 23 Cal.3d 545, 551.) It expressly prohibits multiple sentences where a single act violates more than one statute. (People v. Alvarado (2001) 87 Cal.App.4th 178, 196.) It also prohibits multiple punishment where the defendant commits more than one act in violation of different statutes when the acts comprise an indivisible course of conduct having a single intent and objective. “If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one.” (Neal v. State of California (1960) 55 Cal.2d 11, 19.)
Section 654, subdivision (a) states, in pertinent part: “An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision.”
“ ‘ “The initial inquiry in any section 654 application is to ascertain the defendant’s objective and intent. If he entertained multiple criminal objectives which were independent of and not merely incidental to each other, he may be punished for independent violations committed in pursuit of each objective even though the violations shared common acts or were parts of an otherwise indivisible course of conduct.” [Citation.] Whether the defendant maintained multiple criminal objectives is determined from all the circumstances and is primarily a question of fact for the trial court, whose finding will be upheld on appeal if there is any substantial evidence to support it.’ (People v. Porter (1987) 194 Cal.App.3d 34, 38.) ‘However, when there is no dispute as to the facts, the applicability of Penal Code section 654 is a question of law.’ (People v. Ratcliffe (1981) 124 Cal.App.3d 808, 816.)” (People v. Stringham (1988) 206 Cal.App.3d 184, 202.)
Lilly maintains that the stolen van was the means to commit the burglary and, therefore, he cannot be punished for both the vehicle theft and burglary. We disagree. The two crimes were separated both temporally and geographically and were directed at two different victims. The van, full of candy and piñatas, was stolen in Fresno on January 28, 2008, from Mr. Quirarte, a good distance from Campbell and several days before the burglary of Mr. Kurimoto’s store. The trial court might reasonably have concluded that the vehicle theft and burglary were not part of an indivisible course of conduct but that Lilly’s intent in stealing the van was to acquire transportation from Fresno to San Jose, or to steal and sell the van’s contents, and that his use of the van to commit the burglary was independent of his initial objective. Punishment for both is commensurate with Lilly’s culpability and is not precluded by section 654.
As to the reckless driving and resisting arrest counts, Lilly maintains that the reckless driving was the means by which he resisted arrest and, therefore, that he cannot be punished for both. But reckless driving was just one of the means by which he resisted arrest. After the van came to a stop, he leapt out of the vehicle and ran away. The officer chased him and ordered him to stop and finally had to tackle him. Lilly’s flight on foot was separate from his reckless driving attempt to evade police and separate punishment does not violate section 654.
Finally, Lilly contends that possession of burglar tools (the bolt cutters), cannot be punished separately from the burglary. This argument has merit.
Lilly was convicted of violating section 466, which prohibits the possession of a number of named objects such as a “picklock, crow, keybit... slim jim, tension bar, ... master key” or “other instrument or tool with intent feloniously to break or enter into any building.” The bolt cutters fall within the category of “other instrument or tool.”
Lilly argues that his possession of the bolt cutters is like a defendant’s possession of a firearm. In the context of firearms, the principle is that, if the evidence demonstrates only that “fortuitous circumstances put the firearm in the defendant’s hand only at the instant of committing another offense, ” then section 654 bars separate punishment for illegal possession of a firearm. (People v. Ratcliff (1990) 223 Cal.App.3d 1401, 1412.) For example, in People v. Venegas (1970) 10 Cal.App.3d 814 (Venegas), the defendant, a convicted felon, shot a friend in a bar. No witness saw where the gun came from and the gun was found on the floor of the bar after the shooting. (Id. at p. 818.) Since there was no evidence that the defendant had possessed the gun before the shooting took place, imposing sentence for both assault and being a felon in possession of a firearm was prohibited by section 654. (Venegas, supra, at p. 821.)
We disagree with Lilly that evidence in this case shows that only fortuitous circumstances put the bolt cutters in his hands at the instant he decided to burglarize Gardenland. Rather, the contrary inference, that he brought the tool with him in order to commit the burglary, is more reasonable. Nevertheless, unlike the illegal possession of a firearm by a convicted felon, possession of bolt cutters is not illegal absent the contemporaneous intent to use them to commit a burglary. (People v. Kelly (2007) 154 Cal.App.4th 961, 968 [§ 466 applies to tools “that the evidence shows are possessed with the intent to be used for burglary.”].) The evidence shows that Lilly possessed the bolt cutters with the intent to use them to commit the instant burglary, but there is no evidence that he used them to commit other burglaries or that he intended to commit future burglaries with them. The evidence shows only that his possession of the tool was incidental to his commission of the burglary of which he was convicted in this case. Accordingly, multiple punishment is prohibited by section 654. We shall modify the judgment to reflect that conclusion.
In a petition for rehearing, Jeans has belatedly raised the same argument as it pertains to him, namely, that section 654 precludes punishment for both the burglary and possession of burglar tools. In an answer to the rehearing petition, the Attorney General argues that the issue does not warrant rehearing but concedes that the result we initially reached with respect to Lilly would be equally applicable to Jeans. We granted rehearing. Since the factual and legal analysis of the issue as it pertains to both Lilly and Jeans is identical, we shall modify the judgment as to both of them.
Tejeda has filed an untimely joinder in part of Jeans’s petition for rehearing but has excluded this argument from his joinder. Accordingly, we do not consider the issue as it applies to Tejeda.
5. Ineffective Assistance of Lilly’s Counsel
Lilly’s counsel asked the court to defer sentencing to allow Lilly to complete the substance abuse program in which he was then enrolled. When the court denied that request, counsel asked that Lilly be committed to the California Rehabilitation Center (CRC): “I would ask the Court to order the appropriate doctor’s reports and ultimately a possible sentence to C.R.C., I think is appropriate for that [sic], which is that he has to have a doctor’s evaluation for a court order, and would ask the Court to not give him the aggravated sentence when Mr. Lilly wanted to resolve his case early, and that’s all the defense has to say.” The court refused the request, stating, “Due to the fact that the Court feels that Mr. Lilly was the ring leader, I will consider and deny the C.R.C. request. [¶] What was beneficial to Mr. Lilly was his prior prison priors were not a part of the sentencing structure. [¶] If I could have more, I would have [given] him more.”
Lilly contends that his counsel provided ineffective assistance by failing to object to the court’s conclusion that Lilly was the ringleader since there was no basis for it other than the prosecutor’s argument. We detect no ineffective assistance of counsel.
To demonstrate constitutionally ineffective assistance of counsel, defendant must prove that counsel’s performance was unreasonable when measured by prevailing professional norms and that there is a reasonable probability that but for counsel’s acts or omissions, the result of the proceeding would have been more favorable to the defense. (Strickland v. Washington (1984) 466 U.S. 668, 687-688.) A defendant is not entitled to relief on direct appeal if the record does not show why counsel failed to act in the manner defendant challenges, unless there is no satisfactory explanation for counsel’s conduct or counsel was asked for an explanation and failed to provide one. (See People v. Mendoza Tello (1997) 15 Cal.4th 264, 266.) Furthermore, a reviewing court need not determine whether counsel’s performance was deficient before examining the prejudice prong of the test. “If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed. Courts should strive to ensure that ineffectiveness claims not become so burdensome to defense counsel that the entire criminal justice system suffers as a result.” (Strickland v. Washington, supra, at p. 697.)
Section 3051 of the Welfare and Institutions Code provides: “Upon conviction of a defendant for a felony... and upon imposition of sentence, if it appears to the judge that the defendant may be addicted or by reason of repeated use of narcotics may be in imminent danger of becoming addicted to narcotics the judge shall suspend the execution of the sentence and order the district attorney to file a petition for commitment of the defendant to the Director of Corrections for confinement in the narcotic detention, treatment, and rehabilitation facility unless, in the opinion of the judge, the defendant’s record and probation report indicate such a pattern of criminality that he or she does not constitute a fit subject for commitment....”
In determining a pattern of criminality, the trial court may consider a defendant’s prior convictions, his performance on probation or parole, and the circumstances of the present offense. (People v. Masters (2002) 96 Cal.App.4th 700, 704-706.) “[E]xcessive criminality is the only consideration a sentencing court should look to for refusing to initiate CRC proceedings.” (People v. Granado (1994) 22 Cal.App.4th 194, 200.) If the court refuses to order CRC commitment, the court must provide a statement of reasons. (Cal. Rules of Court, rule 4.406(b)(9); People v. Granado, supra, at pp. 201-202.) “[A]t a minimum the required statement of reasons must include some specification of where the court was looking in making its finding of excessive criminality.... [W]as it looking at the defendant’s prior convictions, his prior performance on probation or parole, the nature and seriousness of the current offense, or some other factors evidencing criminality?” (People v. Granado, supra, at pp. 202-203.)
In the present case, the probation officer’s report indicated that Lilly had a long pattern of criminal behavior. He had five misdemeanors and six felony convictions. All but the first felony were committed while he was on parole. His prior convictions included burglary, auto theft, evading a peace officer, possession of stolen property, and driving under the influence. In 2002, he was committed to the CRC, was granted “CRC Parole, ” and completed a residential substance abuse program. By 2006, Lilly was again addicted.
While admitting that there are “proper grounds for denying a CRC commitment in this record, ” Lilly argues that the trial court did not expressly rely upon those grounds but instead relied upon a fact that it is not supported by the record. Lilly is correct that, other than the prosecutor’s statement to the court, there is no evidence that Lilly was, indeed, the ringleader. Nevertheless, the record does not demonstrate that Lilly’s counsel was ineffective in failing to object to the trial court’s statement. There are several satisfactory reasons why counsel might have refrained from pressing the issue. Counsel might have believed that, since Lilly’s prior CRC commitment had not resolved his substance abuse problem, Lilly was not a fit subject for recommitment. Or, counsel’s failure to object might have been due to Lilly’s own ambivalence or concerns about the programs offered by the CRC, the different conditions of confinement, or other factors having to do with the period of confinement. (See People v. Lizarraga (2003) 110 Cal.App.4th 689, 693.)
This is not a case like People v. Jeffery (2006) 142 Cal.App.4th 192, upon which Lilly relies. In Jeffery, the sentencing court refused the defendant’s request for a CRC commitment, stating that it was doing so for “ ‘a variety of reasons.’ ” (Id. at p. 196.) On appeal, the defendant argued that the court’s refusal was an abuse of discretion because its statement of reasons was ambiguous and did not reveal whether the court had found she had a pattern of criminality. (Id. at p. 195.) The appellate court held that, since the trial court’s ruling required the reviewing court to speculate about its reasons, remand was warranted. (Id. at p. 197.) Here, Lilly does not challenge the court’s exercise of discretion but his counsel’s failure to object to the court’s stated reasons. Since there are several satisfactory explanations for counsel’s failure to object, Lilly is not entitled to relief.
Furthermore, the record demonstrates no possibility that, had counsel objected, the court would have changed its mind. Although the court expressly based its denial on its belief about Lilly’s role in this case, the court was well aware of Lilly’s prior criminal history and was plainly intent upon giving Lilly the maximum sentence it could. Because the record of Lilly’s most recent conviction was illegible, the court was unable to sentence Lilly to any additional time for his four prior prison commitments. The court expressed its frustration with this result when it stated, “If I could have more, I would have [given] him more.” Thus, even if it was objectively unreasonable for counsel not to have voiced an objection, the failure was not prejudicial as it is clear that the result would have been the same.
6. Conduct Credits Pursuant to Section 4019
Prior to sentencing, a criminal defendant may earn credits to be applied to his or her sentence by performing assigned labor (§ 4019, subd. (b)) or by good behavior (id., subd. (c)) while in custody. Such credits are collectively referred to as “conduct credit.” (People v. Dieck (2009) 46 Cal.4th 934, 939, fn. 3.) Under the law in effect when Lilly was sentenced, he was entitled to two days of conduct credit for every four days of actual custody. (Former § 4019.) At sentencing on September 26, 2008, Lilly was awarded 120 days of conduct credit pursuant to that formula.
Section 4019 was amended, effective January 25, 2010. Under the amended law, criminal defendants may receive one day of conduct credit for every day of actual custody. (§ 4019, subd. (f); see Stats. 2009-2010, 3d Ex. Sess., ch. 28, § 50, pp. 4427-4428.) In supplemental briefing, Lilly argues that the amended version of section 4019 applies to him and that he is, therefore, entitled to an additional 120 days of credit. In order to accept Lilly’s argument, we would have to conclude that the amendment to section 4019 applies retroactively. But legislative provisions are presumed to operate prospectively and “should be so interpreted ‘unless express language or clear and unavoidable implication negatives the presumption.’ ” (Evangelatos v. Superior Court (1988) 44 Cal.3d 1188, 1208.) Lilly acknowledges that the Legislature did not expressly state that the amendment is to apply retroactively. Lilly argues, however, that In re Estrada (1965) 63 Cal.2d 740, 748 (Estrada), compels the conclusion that the Legislature intended the amendment to apply retroactively because the amendment mitigates punishment. Lilly also argues that the same intent is implied by comments contained in the bill enacting the legislation. (Stats. 2009-2010, 3d Ex. Sess., ch. 28, § 59, p. 4432.) Finally, Lilly maintains that the Equal Protection Clauses of the California Constitution and the Fourteenth Amendment of the United States Constitution require that the amendment be retroactive.
A split has arisen in the appellate courts regarding whether the amendments to section 4019 are available to inmates who had already been sentenced at the time the amendments went into effect but whose convictions were not yet final. Our Supreme Court has granted review in several cases raising this issue, including People v. Brown (2010) 182 Cal.App.4th 1354, 1363-1365, review granted June 9, 2010, S181963, in which the Third Appellate District held the amendments are retroactive and People v. Rodriguez (2010) 183 Cal.App.4th 1, 13-14, review granted June 9, 2010, S181808, in which the Fifth Appellate District reached the opposite result. The Supreme Court has also granted review in People v. Hopkins (2010) 184 Cal.App.4th 615, review granted July 28, 2010, S183724, in which this court held that the amendments are not retroactive.
Until we receive guidance from the Supreme Court, we adhere to our view that the Legislature did not intend the amendments to apply retroactively. Estrada held that an amendatory statute lessening punishment “ ‘represents a legislative judgment that the lesser penalty or the different treatment is sufficient to meet the legitimate ends of the criminal law, ’ ” and that, in such cases, the section 3 presumption of prospective application is rebutted. (Estrada, supra, 63 Cal.2d at p. 745.) But Senate Bill No. 18, the legislation which amended section 4019, was enacted in order to address the state’s fiscal emergency, as proclaimed by Governor Schwarzenegger in December 2008. (Stats. 2009, 3d Ex. Sess., ch. 28, § 62.) Increasing the amount of credits available to certain inmates will reduce the prison population resulting in reduced costs to the state. This goal does not reflect a legislative determination that the original punishment for any particular crime was too severe. Thus, section 4019 does not provide the necessary “ ‘clear and unavoidable implication negat[ing] the presumption [of prospective operation], ’ ” set forth in section 3. (Evangelatos v. Superior Court, supra, 44 Cal.3d at p. 1208.) We also reject Lilly’s equal protection argument. The principal purpose of section 4019 is to motivate good conduct. A defendant’s past conduct cannot be motivated retroactively. This is a rational basis for applying the amendments prospectively only. Thus, Lilly is not entitled to additional conduct credits.
V. The Petitions for Habeas Corpus
In separate petitions for habeas corpus, Jeans and Tejeda argue that they were denied effective assistance of counsel because their attorneys did not fully investigate the prosecution’s theory of the assault with a deadly weapon charge. (§ 245, subd. (c).) As described above, the charge related to the tools that were thrown from the van during the chase. Garden tools are not inherently dangerous or deadly weapons. The prosecutor’s theory was that the tools, the portable generator in particular, were capable of causing death or great bodily injury when used as they were. (Cf. People v. Lochtefeld (2000) 77 Cal.App.4th 533, 538.)
In part of his argument to the jury, the prosecutor stated: “It’s a 30 pound generator... thrown, is at least 25 miles per hour or more, a deadly weapon. [¶] It’s been a long time since high school physics class, but all of you are aware there’s some force that an item that is moving has some additional force to it. [¶]... [¶] A thousand [sic] pound generator that’s sitting on the ground is not going to be a deadly weapon. [¶] A thousand [sic] pound generator that is moving at 30 miles per hour is going to be a deadly weapon.” Jeans and Tejeda argue that trial counsel should have hired an accident reconstruction expert to refute the prosecutor’s explanation of this physical principle.
An appellate court receiving a petition for writ of habeas corpus evaluates the petition by asking whether, assuming the petition’s factual allegations are true, the defendant would be entitled to relief. If no prima facie case for relief is stated, the court will summarily deny the petition. (People v. Duvall (1995) 9 Cal.4th 464, 474-475.) To make out a prima facie case of ineffective assistance of counsel, a defendant must show both deficient performance under an objective standard of professional reasonableness and prejudice under a test of reasonable probability of a different outcome. (People v. Frye (1998) 18 Cal.4th 894, 952.)
The petitions include a declaration from an accident reconstruction expert who states that, since the van and the police cars were moving at the same speed, an object ejected from the van would hit the ground in “slightly less than half a second” and would continue traveling “downroad, ” in the same direction the police car was traveling. That is, contrary to the prosecutor’s argument, the object would have no more force in an encounter with the police car than it would if it were standing still in the road.
The expert goes on to state that, in such a case, if the police cars hit the objects, the police vehicles “outweigh the objects so significantly, the mechanics of any potential contact between the objects and police vehicles indicate that the speeds of the police vehicles will not change significantly, and thus there is virtually no mechanism to create a significant injury to an occupant inside the police vehicle.” The expert states that it would have been like hitting a medium sized dog, like a Border collie or Bassett hound. In effect, the opinion is that if a police cruiser had run over the 30-pound generator, the cruiser would have done more damage to the generator than the generator would have done to the cruiser.
Jeans and Tejeda argue that their trial attorneys were ineffective because they failed to investigate these physical principles. Jeans’s trial counsel states that he reviewed the video recordings of the chase and assumed that throwing any kind of large gardening equipment in front of the police cars could cause injury to the drivers. Tejeda’s counsel explains that his theory was that the occupants of the van were ejecting the garden tools for their own safety. Neither attorney considered hiring an accident reconstruction expert. But this was not ineffective assistance of counsel.
The prosecutor’s reference to the force of objects thrown from a moving vehicle came up in closing argument only; there was no evidence submitted in support of it. Indeed, evidence that the objects were capable of causing great bodily injury consisted of the officers’ descriptions of a high speed chase with four police vehicles in a line following the speeding van, the sudden appearance of the objects ejected from the van, the officers’ swerving to avoid the objects, and their concern about crashing their vehicles. The evidence would not have given counsel any indication that the prosecutor intended to rely upon the concept that the speed of the van would have increased the force of the objects thrown from it, as he later described it in his argument to the jury. Furthermore, since the prosecutor’s argument appears to have misapprehended the physics of the situation, counsel would have had no reason to anticipate it. Counsels’ failure to hire an expert to refute a theory they could not have anticipated was not objectively unreasonable. Accordingly, neither petition sets forth a prima facie case for relief.
VI. Disposition
In case No. H033423:
The judgment against defendant Johnnie Lilly is modified to stay under Penal Code section 654 the term imposed for count 6, possession of burglar tools in violation of Penal Code section 466, a misdemeanor. As modified, the judgment is affirmed.
The judgment against defendant Chester Arthur Jeans is modified to stay under Penal Code section 654 the term imposed for count 6, possession of burglar tools in violation of Penal Code section 466, a misdemeanor.
In case No. H035236, Chester Arthur Jeans’s petition for habeas corpus is denied.
In case No. H035625, Manuel Raymond Tejeda’s petition for habeas corpus is denied.
WE CONCUR: Rushing, P.J., Duffy, J.