Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 08F00662
ROBIE, J.
Defendant Jahmal Stanford was convicted of two counts of attempted robbery. The jury also sustained allegations he was armed in the commission of both offenses. He was sentenced to five years in prison.
Defendant appeals, contending it was error to instruct on conspiracy as it is not a valid theory of liability. We shall modify the award of credits and otherwise affirm.
FACTS
Defendant lived in an apartment complex behind a shopping center which contained a smoke shop. He knew that Guillermo Hernandez operated a check cashing business in the shop.
On December 11, 2007, defendant asked codefendants James Williams and Donald Santos if they wanted to rob the shop. He gave both men pantyhose to wear over their heads, gave Santos clothing and a dummy gun, and instructed them on how to commit the robbery. Williams brought his own gun.
Defendant’s girlfriend drove them to the shopping center. Santos and Williams entered the shop, while defendant stayed outside to act as a lookout. Santos pointed his gun at a customer and screamed, “get down.” Williams went to the front of the shop, pointed his gun at Hernandez, and screamed for him to get on the ground.
The shop’s owner, Baber Malik, hid behind a partition after seeing the robbers enter his store. After hearing a gun fire, Malik came out and fired his handgun. Williams admitted firing his weapon, but claimed Malik fired first. Hernandez suffered a gunshot wound to the head which required brain surgery. He suffered continuing memory loss and pain from the head wound.
Williams and Santos ran out of the store and into defendant’s car. Defendant’s girlfriend drove off.
DISCUSSION
I
Conspiracy Is A Valid Theory Of Liability
The People presented two theories of liability for defendant: aiding and abetting and conspiracy. Defendant contends the trial court erred in instructing the jury that liability could be based on a theory of conspiracy. Specifically, he contends the trial court erred in giving CALCRIM Nos. 416 and 417. Defendant claims conspiracy is a crime, not a theory of criminal liability. He is wrong.
As this court explained in People v. Salcedo (1994) 30 Cal.App.4th 209: “The doctrine of conspiracy plays a dual role in our criminal law. First, conspiracy is a substantive offense in itself--‘an agreement between two or more persons that they will commit an unlawful object (or achieve a lawful object by unlawful means), and in furtherance of the agreement, have committed one overt act toward the achievement of their objective.’ [Citations.] Second, proof of a conspiracy serves to impose criminal liability on all conspirators for crimes committed in furtherance of the conspiracy.” (Id. at p. 215.)
Conspiracy has long been accepted as a valid theory of liability. In People v. Kauffman (1907) 152 Cal. 331, the Supreme Court found “no dispute about the rules of law governing the criminal liability of each of several parties engaging in an unlawful conspiracy, ” which was: “‘where several parties conspire or combine together to commit any unlawful act, each is criminally responsible for the acts of his associates or confederates committed in furtherance of any prosecution of the common design for which they combine. In contemplation of law the act of one is the act of all.’” (Id. at p. 334.)
“It is long and firmly established that an uncharged conspiracy may properly be used to prove criminal liability for acts of a coconspirator. [Citations.]” (People v. Belmontes (1988) 45 Cal.3d 744, 788, disapproved on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) More recently, the California Supreme Court approved instructing on conspiracy as a theory of criminal liability in a capital case. In People v. Prieto (2003) 30 Cal.4th 226, the prosecution alleged conspiracy as one theory of liability for some counts, although it did not charge defendant with conspiracy. (Id. at p. 249.) On appeal, defendant challenged the conspiracy instructions. (Ibid.) The court held the instructions properly informed the jury a conspirator could be vicariously liable for a crime committed in furtherance of the conspiracy only if that crime was a natural and probable consequence of the conspiracy. (Id. at pp. 249-250.)
Defendant suggests People v. Dole (1898) 122 Cal. 486 and People v. Durham (1969) 70 Cal.2d 171, establish that conspiracy is not a theory of criminal liability. Neither decision supports this contention. In Durham, aiding and abetting was the sole theory of liability for the relevant codefendant. (Durham, at p. 186.) In Dole, the Supreme Court declared: “Aside from the person who directly commits a criminal offense, no other is guilty as principal unless he aids and abets (Pen. Code, secs. 31, 971).” (Dole, at p. 492.) However, this statement is part of a discussion addressing whether it was error to instruct that the defendant was guilty if he “aided, abetted, or assisted” in the commission of the offense. (Ibid.) Dole did not address conspiracy as a theory of liability.
The other decisions cited by defendant come from the Courts of Appeal. (See People v. Bringham (1989) 216 Cal.App.3d 1039; People v. Le Grant (1946) 76 Cal.App.2d 148; People v. Talbott (1944) 65 Cal.App.2d 654; People v. Stein (1942) 55 Cal.App.2d 417.) Since 1907, California Supreme Court precedent has established that conspiracy is a valid theory of liability. We are bound to follow those decisions. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) It was not error for the trial court to give the relevant CALCRIM instructions on uncharged conspiracy.
II
Conduct Credits
The court awarded 706 days’ presentence custody credits, and awarded 105 days’ conduct credits under Penal Code section 2933.1. Section 2933.1 limits conduct credits to 15 percent of local time for anyone convicted of a violent felony listed in section 667.5. (§ 2933.1, subds. (a), (c).) We requested supplemental briefing on whether defendant was convicted of a violent felony, and thus subject to section 2933.1. The parties agree that the court erred in limiting defendant’s conduct credits because defendant was not convicted of a violent felony. They are correct.
All further section references are to the Penal Code.
Defendant was convicted of attempted robbery (§§ 664, 211) with enhancements for being armed in the commission of both offenses. (§ 12022, subd. (a)(1).) The armed enhancement is not among the firearm enhancements listed in section 667.5. (See § 667.5, subd. (c)(8).) Nor is attempted robbery a violent felony. The listing of the relevant violent felonies in section 667.5, subdivision (c) is as follows: “(c) For the purpose of this section, ‘violent felony’ shall mean any of the following: [¶]... [¶] (9) Any robbery.” There is nothing in the language of section 667.5, subdivision (c), which indicates that attempted robbery is a violent felony. Unless otherwise specified, an attempt to commit an enumerated felony does not fall within the scope of section 667.5, subdivision (c). (People v. Ibarra (1982) 134 Cal.App.3d 413, 425; see People v. Finley (1994) 26 Cal.App.4th 454, 458.)
Since attempted robbery is a serious felony (§ 1192.7, subds. (c)(19), (39)) the recent amendments to section 4019 do not apply. (§ 4019, subds. (b), (c); Stats. 2009, 3d Ex. Sess., ch. 28, § 50.) Therefore, defendant’s custody credits are calculated “‘by dividing the number of days spent in custody by four and rounding down to the nearest whole number. This number is then multiplied by two and the total added to the original number of days spent in custody. [Citation.]’ [Citation.]” (People v. Williams (2000) 79 Cal.App.4th 1157, 1175-1176, fn. 14.) Having served 706 days, defendant is entitled to 352 days’ conduct credit. The abstract of judgment must be amended to reflect these numbers.
DISPOSITION
The judgment is modified to reflect that defendant is entitled to 706 days’ actual credit plus 352 days’ conduct credit pursuant to section 4019 for a total of 1, 058 days’ presentence credit. As modified the judgment is affirmed.
The trial court is directed to prepare an amended abstract of judgment and to forward a copy of the amended abstract of judgment to the California Department of Corrections and Rehabilitation.
We concur: HULL, Acting P. J., SCOTLAND, J.
Retired Presiding Justice of the Court of Appeal, Third Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.