People v. Weddington

• Decision Date: 13 April 2016
• Docket Number: B256361
• Citation: 246 Cal.App.4th 468,200 Cal.Rptr.3d 799
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Travion WEDDINGTON et al., Defendants and Appellants.

246 Cal.App.4th 468

200 Cal.Rptr.3d 799

The PEOPLE, Plaintiff and Respondent,

v.Travion WEDDINGTON et al., Defendants and Appellants.

B256361

Court of Appeal, Second District, Division 1, California.

Filed April 13, 2016

John F. Schuck, under appointment by the Court of Appeal, for Defendant and Appellant Travion Weddington.

Roberta Simon, under appointment by the Court of Appeal, for Defendant and Appellant Willie Nunnery.

Christine C. Shaver, under appointment by the Court of Appeal, for Defendant and Appellant Taliah Bashir.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Paul M. Roadarmel, Jr., Supervising Deputy Attorney General, and Allison H. Chung, Deputy Attorney General, for Plaintiff and Respondent.

LUI

, J.

Travion Weddington, Willie Nunnery, and Taliah Bashir appeal from the judgments entered following a jury trial in which they were convicted of one count of first degree burglary in violation of Penal Code section 459

,¹ one count of conspiracy to commit residential burglary (§ 182, subd. (a)(1)), four counts of attempted first degree burglary (§§ 664, 459 ), one felony count of evading a peace officer in willful disregard for safety (Veh.Code, § 2800.2, subd. (a) ), and one count of possession of burglar's tools (§ 466). Following a bifurcated bench trial, the trial court found true the gang enhancement allegations as to all three defendants on all counts of conviction. (§ 186.22, subd. (b)(1).) The court sentenced Weddington to an aggregate term of 18 years 8 months in state prison; Nunnery to a total term of 14 years 4 months in state prison;² and Bashir to an aggregate term of 15 years in state prison.

Appellants contend:³ (1) the attempted burglary convictions must be reversed for insufficient evidence because appellants' conduct did not progress beyond planning and preparation; (2) the true finding on the gang enhancement must be reversed for lack of substantial evidence that the underlying offenses were gang-related; (3) the evidence is insufficient to sustain the conviction on count 4 against Nunnery and Weddington for evading a peace officer in willful disregard for safety because they were merely passengers in the vehicle driven by Bashir; (4) the conviction on count 4 must also be reversed based on the trial court's failure to instruct the jury on the lesser included offense of misdemeanor evading a peace officer; and (5) a remand for resentencing for the conviction of possession of burglary tools is required based on the trial court's misunderstanding of its sentencing discretion. We find no merit to appellants' contentions, and affirm.

FACTUAL BACKGROUND

September 7, 2011⁴

Elizabeth Barba and her husband Jose Fernandez lived on the 11000 block of Gerald Avenue in Granada Hills. On September 7, 2011, about 10:30 a.m., Fernandez was walking to his truck on the street when he noticed a red Chrysler Sebring parked nearby. Two African–American males were seated in the vehicle, but the driver's seat was empty. The outside temperature was about 100 degrees that day, and Fernandez thought it suspicious that someone would be sitting in a car in the heat. Fernandez went back inside, and when he came out, the car was gone. About half an hour later, Fernandez saw the Sebring coming down the street. As the car passed, Fernandez could see the driver, who appeared to be an 18– to 25–year–old woman, as well as the same passengers he had seen earlier.

Sometime after Fernandez had left, Barba noticed a red car parked across the street. The car pulled away, but returned five or ten minutes later. Barba saw the driver, whom she later identified as Bashir, get out of the car and approach Barba's front door. When Bashir reached the front door she pounded on it loudly for about 30 seconds. Barba became frightened. She gathered her children and went to the master bedroom as the pounding continued. When the pounding stopped, Barba saw Bashir return to the red car, where two male passengers were waiting. The car then drove away.

About 11:00 a.m. that day, as Los Angeles Police Officer John Parker was on patrol near Havenhurst Avenue in Granada Hills, he noticed a red Chrysler Sebring driven by a woman with two male passengers who were slouching down in their seats. Officer Parker followed the vehicle and next saw it stopped in the alley behind Barba's house. Weddington got out of the car, and as he walked toward the trunk of the Sebring, he looked in Officer Parker's direction and immediately got back into the car. The Sebring then accelerated quickly away. Officer Parker followed the Sebring as it sped out of the alley—going 30 to 35 miles per hour in a 15–mile per hour zone—and turned right without stopping at the end of the alley or signaling for the turn. Officer Parker tried to get behind the Sebring to conduct a traffic stop, but the Sebring sped onto the 118 Freeway with Officer Parker still in pursuit. Officer Parker accelerated, followed the Sebring onto the freeway, and turned on the patrol vehicle's lights and siren. The Sebring exited the freeway and came to a stop.

Officer Parker requested backup units and conducted a traffic stop. Weddington and Nunnery were passengers in the car driven by Bashir, who was driving on a suspended license. The Sebring was impounded and searched. The destination on the GPS on Weddington's cell phone was an address located in the southern part of Los Angeles. In the search, police recovered a crowbar, a window punch, two flathead screwdrivers, one with a bent tip, a Phillips-head screwdriver, a tire repair tool, a pair of two-way radios, one black glove, two empty backpacks, and a pair of white gloves. Another pair of black gloves was recovered from Nunnery's pocket. Los Angeles Police Officer Benjamin Sadeh described how these items could be used in a burglary and opined that most of these items were common burglary tools.

September 26, 2011⁵

Midmorning on September 26, 2011, a multi-unit team of the Los Angeles Police Department conducted undercover surveillance of the red Chrysler Sebring starting in the southern part of Los Angeles and continuing north along the 405 Freeway into the San Fernando Valley. Officers in a helicopter tracked the Sebring using a powerful magnifying camera, which enabled them to see people on the ground from an altitude of 6,500 to 8,000 feet. The officers in the helicopter were in contact with numerous officers on the ground in unmarked vehicles who were using the information provided by the airship to follow the Sebring and relay street names and house numbers back to the helicopter.

The helicopter tracked the Sebring as it exited the freeway in Northridge and slowly drove through side streets, occasionally stopping in front of homes. Eventually, the Sebring stopped in front of a house on the 9000 block of Gothic Avenue. After about five minutes, the female driver exited the vehicle, walked to the front door of the house, and knocked on the door for one to two minutes. No one opened the door. The woman returned to the Sebring and drove away.

The Sebring stopped in front of the home of Julianne McCloskey on the 9000 block of Gerald Avenue. Once again, the driver got out of the car, walked up to the front door of the house, knocked, and stood there for about a minute and a half. No one came to the door. The driver then peeked over the side gate of the house before returning to the car. After a few minutes the Sebring pulled away.⁶

The Sebring then parked across the street from a home on the 16000 block of Tupper Street. Again, the driver exited the vehicle and knocked on the front door of the house for about a minute. No one came to the door. The driver looked over the gate on the side of the house before returning to the Sebring. After about five minutes the Sebring drove away.

Police next observed the Sebring stop in front of the home of Kin Fong on the 16000 block of Labrador Street. Fong was not home. The female driver got out of the car and walked up the driveway to the front door of the house. After knocking on the door for a minute or two and receiving no response, she walked to the side gate and looked into the backyard. As she had done after knocking on the doors of the previous homes, the woman went back to the Sebring and sat in the driver's seat. This time, however, the Sebring did not pull away. After about five minutes, a thin male emerged from the backseat of the Sebring and went through the gate to the backyard. A heavier male then got out of the front passenger seat of the Sebring and joined the thinner man in the backyard. The men opened a window through which they entered the house. After about 10 to 15 minutes, both men exited through the front door carrying small bags and pillowcases which appeared to be weighted down.⁷

A marked police car followed the Sebring when it left the Fong residence. As police attempted to conduct a traffic stop, the Sebring began to pull over to the right and slow down, but suddenly accelerated and sped away. During the ensuing police chase, the Sebring ran several red lights in heavy traffic, and money, coins, jewelry, clothing, and video game cartridges were thrown from all four of the Sebring's windows. Some of the coins hit the windshield of the closest police car.

The Sebring eventually crashed, and the three occupants of the vehicle ran in different directions. Police took up the chase on foot, and Bashir, Weddington, and Nunnery were apprehended and taken into custody. As Nunnery was being apprehended, he spun around and elbowed the arresting officer in the face, breaking his nose.⁸

Gang Evidence

In a bifurcated bench trial, the prosecution presented evidence in support of the gang enhancement allegations that Weddington, Nunnery, and Bashir were all members of the Clover subset of the "Seven Trey Gangster Hustler Crip" criminal street gang (STGH), an offshoot of the original Crips gang. They all had numerous...