P. v. Deleon

Filed 5/21/02
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or
ordered published for purposes of rule 977.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and Respondent,
v.
ANDREW JOSEPH DELEON,
Defendant and Appellant.
H021985
(Santa Clara County
Super. Ct. No. CC062339)
Defendant Andrew Joseph Deleon appeals after conviction, by jury trial, of
burglary of a vehicle (counts 1 & 2, Pen. Code, §§ 459, 460, subd. (a)),1 possession of
stolen property (counts 3 & 4, § 496, subd. (a)), misdemeanor possession of burglary
tools (count 5, § 466), grand theft (count 6, §§ 484, 487, subd. (a)), and petty theft with a
prior theft conviction (count 7, § 666). The trial court found true the allegation that
defendant had suffered a prior juvenile adjudication that qualified as a “strike.” (§§ 667,
subds. (b)-(i), 1170.12.) Defendant was sentenced to a four-year prison term for count 1.
The terms for the remaining counts were imposed concurrently or ordered stayed
pursuant to section 654. The trial court also imposed a $4,800 restitution fine (§ 1202.4,
subd. (b)) and a suspended parole revocation fine of $4,800 (§ 1202.45).
1 Unspecified section references are to the Penal Code.

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On appeal, defendant contends the trial court erred by: (1) denying his motions to
suppress evidence; (2) restricting him from introducing evidence to impeach the
credibility of a prosecution witness; (3) giving incomplete instructions on aiding and
abetting; (4) giving incomplete instructions on voluntary intoxication; (5) instructing the
jury on conscious possession of stolen property pursuant to CALJIC No. 2.15; (6) failing
to instruct the jury that corroboration of accomplice testimony requires evidence that
relates to an element of the offense; and (7) finding true the “strike” allegation.
Defendant also claims that he received ineffective assistance of counsel at sentencing,
causing the trial court to impose an erroneous restitution fine and parole revocation fine.
We conclude that trial counsel was ineffective at sentencing, and we will therefore
reverse the judgment and remand for resentencing.
I. BACKGROUND
On November 17, 1999, Campbell Police Officer Harold Abbott pulled over a car
being driven by defendant’s 19-year-old girlfriend, Jacqueline Branson. Defendant was
in the front passenger seat.
Officer Abbott looked into the vehicle and saw what appeared to be stolen car
stereo equipment. He searched the vehicle and found a car stereo with its wires cut, as
well as amplifiers, speakers, sleeping bags, and two walkie-talkies. In addition, he found
a small crowbar, a bent antenna, wire cutters, and a flashlight.
Officer Abbott placed defendant and Branson under arrest. He searched
defendant, and found 14 compact discs (CD’s) in defendant’s pocket. He also found a
black beanie cap and a screwdriver in defendant’s pocket.
Officer Abbott spoke with Branson, who admitted that she and defendant had been
committing car thefts. She said that she and defendant went to the apartment parking lot
together. She parked the car and slept while defendant got out to commit the thefts.
After about 45 minutes, he woke her up and told her to pull the car closer to some other
cars. She did so, and he loaded the stolen items into the car. Branson said that she and

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defendant had committed similar auto thefts on two prior occasions. She would usually
sleep in the car while defendant committed the thefts.
Defendant was charged, by information, with burglary of a vehicle (counts 1 & 2,
§§ 459, 460, subd. (a)), possession of stolen property (counts 3 & 4, § 496, subd. (a)),
misdemeanor possession of burglary tools (count 5, § 466), grand theft (count 6, §§ 484,
487, subd. (a)), and petty theft with a prior theft conviction (count 7, § 666). The
information alleged that defendant had suffered a prior juvenile adjudication that
qualified as a “strike.” (§§ 667, subds. (b)-(i), 1170.12.)
At trial, Branson asserted that she had lied to Officer Abbott. Branson testified
that she committed the charged offenses alone. She testified that on November 16, 1999,
she and defendant had gone to a friend’s home in San Jose. After their arrival, they
fought because the keys to their car were lost. They realized that the keys were in the
trunk of the car. They attempted to get the keys by reaching through the back seat, using
a bent antenna. They succeeded by using a screwdriver to force open the trunk.
Later that night, Branson left the house because she was angry with defendant,
who had been drinking. She drove around looking for another friend’s house. When she
came across the parking lot of the Heritage Village apartment complex, she decided to
break into some vehicles. She needed money for drugs and to get home.
Branson parked the car and looked into vehicles for bags and other items to steal.
The first car she broke into was an Oldsmobile with its windows down. She claimed that
she took keys, a briefcase, and walkie-talkies. The second car was a Chevrolet Blazer.
She claimed that she picked the lock of the hatchback with a knife and removed stereo
equipment, bags, a tackle box, and CD’s.
Branson put all of the items into her car and returned to get defendant. When
defendant entered the car, the CD’s were on the front passenger seat. He picked them up
and put them into his pocket. Branson did not tell defendant that the CD’s were stolen.
She did not tell him what she had done.

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A few weeks before trial, on June 1, 2000, probation officers searched Branson’s
home. They found several letters. The first letter was written by Branson to defendant.
It read, in part: “And another thing. When I spoke with you over the phone I mentioned
a dream I had about the case. I only meant that my love for you is so strong I would
chance going back to jail for you to get out. Do you understand? I love you so much. I
would do anything for you.” At trial, Branson denied that she meant that she would lie
for defendant in court.
The second letter was also written by Branson to defendant. It read, in part: “That
cop is trying to fuck me. I never told him that you and I robbed cars in Tracy. It’s
bullshit. I’m backing you up a hundred and ten percent and unless they have me on tape,
they can’t prove anything and I’m fighting it.” At trial, Branson explained that she meant
that the police had made up much of her post-arrest statement.
The third letter was from defendant to Branson. It read, in part: “Baby, it’s time
for me to make my mom a grandma. And if we don’t make any babies out of love now,
you might never have one, or if I end up doing a third of ten years, seven, because of my
record, then I won’t ever have any at all because my life I will feel like is over. I won’t
be able to give or work and save like I want to. If I get out after San Joaquin, if you
know what I mean, baby, that’s if you can read between the lines and mean what you say
when it all comes down to it. You’re going to have to sound very sorry and sincere and
be strong for me because I need you more than I’ve ever needed anyone before, if you
know what I mean. I’m sorry it’s under the circumstances, but I’m helpless, fucked up,
stupid, selfish. That’s how I feel. I’m asking too much, I know. I need a baby and you
to bear it. I’ll owe you the rest of our lives. I will take care of you.” Branson asserted
that nothing in defendant’s letter had affected any of her testimony.
Branson admitted that she had been charged with some offenses as a result of the
incident, that she had pled guilty, that she was on probation, and that she had been
granted immunity in exchange for her testimony.

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Branson’s trial testimony was contradicted in several respects. First, although she
testified that the lost car keys were found in the trunk, other witnesses testified that the
keys were found in the house. Second, the owner of the Oldsmobile testified that only a
cell phone was taken, whereas Branson claimed she took a briefcase, keys, and walkie-
talkies from that vehicle. Third, the owner of the Chevrolet Blazer testified that the door
of his car had been broken into, not the hatchback.
Defendant was convicted of all charged offenses. In a bifurcated proceeding, the
trial court found true the “strike” allegation. At sentencing, the trial court imposed the
middle term of two years for count 1, doubled to four years pursuant to the Three Strikes
law. (§§ 667, subds. (b)-(i), 1170.12.) It imposed a concurrent four-year term for count 2
and stayed the remaining terms pursuant to section 654. The trial court also imposed a
restitution fine of $4,800 pursuant to section 1202.4, subdivision (b) and a suspended
parole revocation fine of $4,800 pursuant to section 1202.45.
II. DISCUSSION
A. Motions To Suppress
1. Compact Discs
On February 4, 2000, the trial court heard defendant’s first motion to suppress
evidence. (§ 1538.5.) It granted the motion, in part, finding defendant’s detention
unlawful and ordering suppression of “the contraband found upon the person of
[defendant]” – namely, the CD’s.
The People thereafter filed a request for reconsideration of the motion to suppress,
pursuant to section 1538.5, subdivision (j).2 They noted that they had failed to inform the
2 Section 1538.5, subdivision (j) provides in relevant part: “If the defendant’s
motion is granted at a special hearing in the superior court, the people, if they have
additional evidence relating to the motion and not presented at the special hearing, shall
have the right to show good cause at the trial why the evidence was not presented at the
special hearing and why the prior ruling at the special hearing should not be binding, or

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trial court that defendant was on an active grant of probation at the time he was searched,
and argued that the search was therefore reasonable under In re Tyrell J. (1994) 8 Cal.4th
68 (Tyrell J.), and People v. Bravo (1987) 43 Cal.3d 600 (Bravo). They attributed the
error to “inadvertence.”
Defendant opposed the request for reconsideration. He noted that section 1538.5,
subdivision (j) permits the People to present additional evidence if they can “show good
cause at the trial why such evidence was not presented” at the suppression motion. He
argued that the request for reconsideration should be denied for two reasons: (1) the
People had not shown good cause and (2) the People’s request was untimely, as it was
filed before trial.
On February 22, 2000, the trial court took the People’s request for reconsideration
off calendar “without prejudice” to refiling it in conformity with section 1538.5,
subdivision (j). The People then dismissed the pending information and filed a new one.
Defendant filed another motion to suppress the CD’s. He argued that the People
were procedurally barred from relitigating the suppression motion, as they had elected to
proceed by way of a request for reconsideration. He also argued that the motion should
be granted on the merits.
At the hearing on the motion to suppress, the trial court found that the search of
defendant’s person was legal, based on the fact that defendant was subject to a probation
search condition, even though the searching officer did not know about the condition at
the time of the search. The trial court also rejected defendant’s procedural argument. It
the people may seek appellate review as provided in subdivision (o), unless the court,
prior to the time the review is sought, has dismissed the case pursuant to Section 1385. If
the case has been dismissed pursuant to Section 1385, or if the people dismiss the case on
their own motion after the special hearing, the people may file a new complaint or seek
an indictment after the special hearing, and the ruling at the special hearing shall not be
binding in any subsequent proceeding, except as limited by subdivision (p). . . .”

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found that section 1538.5, subdivision (j) permitted the People to dismiss the case and
refile the information.
Defendant now reiterates both his procedural and substantive arguments. He first
argues that the People should not have been permitted to proceed by way of dismissal and
refiling. He asserts that once the People filed their motion for reconsideration, they were
barred from utilizing any of the other procedures permitted by section 1538.5,
subdivision (j).
In People v. Gallegos (1997) 54 Cal.App.4th 252, the court upheld “those
provisions of Penal Code section 1538.5 which permit the prosecution, following the
grant of a motion to suppress evidence first made in the superior court, to dismiss the
case, refile the charges and oppose a subsequent superior court suppression motion
without binding effect of the first ruling.” (Id. at p. 255.)
Here, after defendant’s motion to suppress was granted, the prosecution filed a
request for reconsideration. However, as defendant pointed out, that motion was
procedurally flawed because it was filed prior to trial. The trial court therefore took the
motion off calendar without prejudice to the prosecution refiling it during trial. The trial
court did not resolve the reconsideration motion in favor of either party. At the time the
prosecution dismissed and refiled the charges, there was no motion for reconsideration
pending. Indeed, the prosecution could have elected not to dismiss and refile, but to
proceed to trial and then refile their request for reconsideration of the suppression motion.
Clearly, the prosecution did not receive a third chance to litigate the suppression
motion. They chose only one of the options made available to them by section 1538.5,
subdivision (j): they “dismiss[ed] the case on their own motion after the special hearing”
and filed a new complaint. They did not pursue either of the other two options:
“show[ing] good cause at the trial why the evidence was not presented at the special
hearing and why the prior ruling at the special hearing should not be binding” or
“seek[ing] appellate review.”

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Defendant’s citation to Code of Civil Procedure section 1005.5 does not support
his argument. That section provides: “A motion upon all the grounds stated in the
written notice thereof is deemed to have been made and to be pending before the court for
all purposes, upon the due service and filing of the notice of motion . . . .” Although the
prosecution made a request for reconsideration, it was taken off calendar and was no
longer pending at the time the prosecution dismissed the case and refiled the charges.
As we agree with the trial court’s rejection of defendant’s procedural argument,
we now turn to a discussion of the substantive issue, namely, whether the search of
defendant’s person may be upheld by the fact that he was on probation at the time, even
though the searching officer did not know that defendant was on probation.
Defendant himself acknowledges that such a search is lawful under Tyrell J.,
supra, 8 Cal.4th 68. However, he points out that the California Supreme Court has
indicated it may reconsider its holding in that case. At the time of briefing in the instant
case, the Supreme Court had granted review of People v. Moss , review granted June 28,
2000, S087478 (nonpub. opn.) and had indicated that it would be reconsidering the
holding of Tyrell J. The Supreme Court dismissed Moss as improvidently granted,
pursuant to California Rules of Court, rule 29.4(c), on January 16, 2002. On March 27,
2002, the Supreme Court ordered briefing in People v. Sanders (2000) 84 Cal.App.4th
1211, review granted February 28, 2001 (S094088), and specified that the issues it would
consider in that case included whether to reconsider the holding of Tyrell J. Although the
Supreme Court is apparently reconsidering Tyrell J., the case remains binding on this
court. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
In Tyrell J., the court upheld the search of a juvenile probationer with a probation
search clause, even though the searching officer was unaware of the probation search
clause. The court explained: “[A] juvenile probationer subject to a valid search
condition does not have a reasonable expectation of privacy over his or her person or
property. In this case, Tyrell J. was subject to a valid . . . search condition, directly

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imposed on him by the juvenile court in a prior matter. We presume he was aware of that
limitation on his freedom, and that any police officer, probation officer, or school official
could at any time stop him on the street, at school, or even enter his home, and ask that he
submit to a warrantless search. There is no indication the minor was led to believe that
only police officers who were aware of the condition would validly execute it. The minor
certainly could not reasonably have believed Officer Villemin would not search him, for
he did not know whether Villemin was aware of the search condition. Thus, any
expectation the minor may have had concerning the privacy of his bag of marijuana was
manifestly unreasonable.” (Tyrell J., supra, 8 Cal.4th at p. 86, italics in original,
fn. omitted.)
Here, defendant was subject to a valid probation search condition and therefore
had no reasonable expectation of privacy over his person or property. We presume that
he was aware of that condition – indeed, in agreeing to probation, he consented to the
search condition (see Bravo, supra, 43 Cal.3d at p. 608) – and was aware that he could be
stopped and subjected to a warrantless search by a police officer at any time. There is no
indication that defendant was led to believe that only police officers who were aware of
the condition could validly execute it, and he certainly could not reasonably have
believed that Officer Abbott would not search him, as he was not aware whether Officer
Abbott knew of the condition.
We conclude that the trial court properly denied defendant’s motion to suppress
the CD’s.
2. Letters
During trial, defendant brought a motion to suppress the letters found during a
probation search of Branson’s bedroom. At the time, defendant was in jail and Branson
was subject to “a standard search order” stating that she was subject to “search an seizure

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at any time of the day or night by any peace officer with or without a warrant.” She was
not subject to any restrictions on contact with defendant.
The trial court denied the motion to suppress, finding that the search was valid and
that defendant had “no right to object to the search” because the letters were in Branson’s
possession.
Defendant contends the search of Branson’s bedroom was unlawful because it was
not “reasonably related to the purposes of probation.” (People v. Robles (2000) 23
Cal.4th 789, 797.) He notes that Branson was not prohibited from communicating with
defendant, and claims that the search was invalid because the officers were specifically
looking for such communication.
In Bravo, supra, 43 Cal.3d at p. 610, the court stated that searches of probationers
must be conducted for reasons related to “the rehabilitative and reformative purposes of
probation or other legitimate law enforcement purposes.” By contrast, such a search may
not be conducted for harassment or for arbitrary or capricious reasons. (Ibid.)
Contrary to defendant’s claim, the fact that the officers were specifically searching
for communication between Branson and defendant does not invalidate the probation
search. The officers suspected that Branson might lie on defendant’s behalf at trial and
believed that a search of her residence might produce evidence to show such a plan.
Certainly, discovery of such evidence in order to forestall the obstruction of justice and
prove Branson’s perjury constitutes a “legitimate law enforcement purpose[].” (Bravo,
supra, 43 Cal.3d at p. 610.) The trial court specifically found that the search was not
conducted for harassment purposes, and the evidence supports that finding.
We need not consider the trial court’s ruling that defendant lacked standing to
object to the search of Branson’s bedroom, as we conclude the search was lawful.

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B. Impeachment Evidence
During cross-examination of Branson, trial counsel asked whether she
remembered speaking with defendant’s mother from jail, after the incident. Branson
acknowledged the conversation. Trial counsel asked, “Do you remember apologizing to
her about what you had done to [defendant]?” Branson replied, “Yes,” but the prosecutor
objected on hearsay grounds. Trial counsel asserted, “Prior consistent statement.” He
explained, “Apologizing about what she did to [defendant] is [a] prior consistent
statement to the inconsistent statements that are being introduced.” The trial court
sustained the hearsay objection, but noted that defendant could “call the mother later.”
Defendant contends the trial court erred by sustaining the prosecutor’s hearsay
objection. He argues that Branson’s apology was admissible as a prior consistent
statement under Evidence Code section 791.
Evidence Code section 791 provides: “Evidence of a statement previously made
by a witness that is consistent with his [or her] testimony at the hearing is inadmissible to
support his [or her] credibility unless it is offered after: [¶] (a) Evidence of a statement
made by him [or her] that is inconsistent with any part of his [or her] testimony at the
hearing has been admitted for the purpose of attacking his [or her] credibility, and the
statement was made before the alleged inconsistent statement; or [¶] (b) An express or
implied charge has been made that his [or her] testimony at the hearing is recently
fabricated or is influenced by bias or other improper motive, and the statement was made
before the bias, motive for fabrication, or other improper motive is alleged to have
arisen.”
Here, Branson testified that she lied when she told Officer Abbott that defendant
had participated in the auto thefts. The prosecution sought to show that Branson’s
testimony had been “recently fabricated.” (Evid. Code, § 791, subd. (b).) The
prosecution’s theory was that Branson was lying because she had already pled guilty and

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because of her correspondence with defendant. Defendant sought to introduce Branson’s
apology to defendant’s mother as a prior statement that was consistent with her testimony
about lying to the police, and which was “made before the bias, motive for fabrication, or
other improper motive is alleged to have arisen.” (Ibid.)
It is unclear whether Branson’s apology for “what [she] had done to [defendant]”
was consistent with her trial testimony about committing the crimes alone. The apology
is vague and does not necessarily refer to the fact that she had wrongly implicated
defendant in the crimes. The apology could also be interpreted as referring to the fact
that she had truthfully told the police about defendant’s participation.
Even assuming that the trial court erred by excluding the statement, reversal would
not be required. Defendant asserts that the error violated his right to present a defense,
his right to confrontation, and his right to due process. (Cal. Const., art. I, § 15; U.S.
Const., 6th & 14th Amends.) He contends the error is therefore subject to analysis under
Chapman v. California (1967) 386 U.S. 18. We believe that any error was harmless
beyond a reasonable doubt. First, as noted, the statement was vague and easily
susceptible to two different interpretations. Thus, while defendant could have argued that
the apology was consistent with Branson’s trial testimony, the prosecutor could have
argued that the apology was consistent with Branson’s confession to the police. Second,
the evidence at trial was overwhelming. Significantly, the stolen CD’s were found on
defendant’s person, and he was found in the car with all of the stolen items and burglary
tools. It was not plausible that he did not realize that there were stolen items in the car or
on his person. The letters found in Branson’s apartment were also significant, strongly
indicating that Branson would lie on defendant’s behalf. Finally, Branson’s testimony
was inconsistent with other evidence, with regard to the method used to break into the
cars and the specific items that were stolen. Under these circumstances, any error was
harmless beyond a reasonable doubt.

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C. Aiding and Abetting Instructions
The trial court instructed the jury on aiding and abetting as follows: “Persons who
are involved in committing or attempting to commit a crime are referred to as principals
in that crime. Each principal, regardless of the extent or manner of participation, is
equally guilty. Principals include: one, those who directly and actively commit or
attempt to commit the act constituting the crime or, two, those who aid and abet the
commission or attempted commission of the crime.” (CALJIC No. 3.00.)
“A person aids and abets the commission or attempted commission of a crime
when he or she: [¶] One, with knowledge of the unlawful purpose of the perpetrator and,
[¶] Two, with the intent or purpose of committing or encouraging or facilitating the
commission of the crime and, [¶] Three, by act or advice, aids, promotes, encourages or
instigates the commission of the crime. [¶] A person who aids and abets the commission
or attempted commission of a crime need not be present at the scene of the crime. [¶]
Mere presence at the scene of the crime which does not itself assist the commission of the
crime does not amount to aiding and abetting. [¶] Mere knowledge that a crime is being
committed and the failure to prevent it does not amount to aiding and abetting.”
(CALJIC No. 3.01.)
Defendant claims these instructions were incomplete. He claims the trial court
had a sua sponte duty to instruct the jury that his intent, knowledge, and act had to
precede or coincide with the perpetrator’s commission of the offense.
“It is settled that if a defendant’s liability for an offense is predicated upon the
theory that he or she aided and abetted the perpetrator, the defendant’s intent to
encourage or facilitate the actions of the perpetrator ‘must be formed prior to or during
“commission” of that offense.’ ” (People v. Montoya (1994) 7 Cal.4th 1027, 1039,
quoting People v. Cooper (1991) 53 Cal.3d 1158, 1164, italics in the original.) It is also
“settled that, even in the absence of a request, a trial court must instruct on general

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principles of law that are commonly or closely and openly connected to the facts before
the court and that are necessary for the jury’s understanding of the case. [Citations.]”
(Id. at p. 1047.)
In People v. Montoya, supra, 7 Cal.4th 1027, the defendant was charged with
burglary and was prosecuted on an aiding and abetting theory. The perpetrator had
entered and exited the building several times. On appeal, the court concluded that the
defendant could be liable as an aider and abettor if his intent was formed “at any time
prior to the perpetrator’s final departure from the structure.” (Id. at p. 1046.) The court
concluded that the trial court had no sua sponte duty to explain this principle to the jury,
however, because the prosecution’s case was based largely on the theory that the
defendant’s intent to aid and abet arose prior to the commencement of the burglary. The
court concluded, “In view of the evidence presented and the arguments advanced by the
parties, the significance of the precise time at which defendant must have formed the
requisite intent in order to be liable as an aider and abettor was not an issue ‘closely and
openly’ connected with the case.” (Id. at p. 1050.)
Here, too, there was no need for a sua sponte modification to the instructions. The
prosecutor did not even argue that defendant was guilty as an aider and abettor; he argued
that defendant had perpetrated the burglaries. Defendant refutes this, calling our attention
to one paragraph of the prosecutor’s rebuttal argument, where he asks, “is there any way
possible that [defendant] doesn’t know that that’s stolen property when he gets in the
car?” However, we do not read anything in that paragraph as indicating that the
prosecutor was asking the jury to convict defendant based on an aiding and abetting
theory. Rather, the prosecutor was reiterating the facts that made it clear that Branson
was lying when she testified that she had committed the offenses herself.
Moreover, the jury instructions did inform the jury that defendant could be found
guilty as an aider and abettor if he aided, promoted, encouraged, or instigated the
commission of the crime “with knowledge of the unlawful purpose of the perpetrator”

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and “with the intent or purpose of committing or encouraging or facilitating the
commission of a crime.” (CALJIC No. 3.01, italics added.) We believe this instruction
adequately advised the jury that defendant’s intent to aid and abet the vehicle theft had to
coincide with or precede the perpetrator’s commission of the offense.
D. Voluntary Intoxication Instruction
The trial court instructed the jury on voluntary intoxication as follows: “In the
crimes charged in counts 1 through and including 7, a necessary element is the existence
in the mind of the defendant of a specific intent or a mental state which are defined
elsewhere in these instructions. [¶] If the evidence shows that the defendant was
intoxicated at the time of the alleged crime or crimes, you should consider that fact in
deciding whether defendant had the required specific intent or mental state. [¶] If from
all the evidence you have a reasonable doubt whether the defendant formed that specific
intent or mental state, you must find that he did not have that specific intent or mental
state. [¶] Intoxication of a person is voluntary if it results from the willing use of any
intoxicating liquor, drug or other substance, knowing that it is capable of an intoxicating
effect or when he willingly assumes the risk of that effect. [¶] Voluntary intoxication
includes the voluntary ingestion, injecting or taking by any other means of any
intoxicating liquor, drug or other substance.” (CALJIC No. 4.21.)
Defendant contends the trial court had a sua sponte duty to also instruct the jury
pursuant to CALJIC No. 4.21.2, which provides: “In deciding whether a defendant is
guilty as an aider and abettor, you may consider voluntary intoxication in determining
whether a defendant tried as an aider and abettor had the required mental state.
[However, intoxication evidence is irrelevant on the question whether a charged crime
was a natural and probable consequence of the [target] [originally contemplated] crime.]”
In People v. Mendoza (1998) 18 Cal.4th 1114 (Mendoza), the court explained:
“[A] trial court has no sua sponte duty to instruct on the relevance of intoxication, but if it
does instruct, as the court here did, it has to do so correctly. [Citation.] The appellate

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court should review the instructions as a whole to determine whether it is ‘reasonably
likely the jury misconstrued the instructions as precluding it from considering’ the
intoxication evidence in deciding aiding and abetting liability. [Citation.] Any error
would have the effect of excluding defense evidence and is thus subject to the usual
standard for state law error: ‘the court must reverse only if it also finds a reasonable
probability the error affected the verdict adversely to defendant.’ [Citation.]” (Id. at pp.
1134-1135.)
In this case, assuming the trial court should have given CALJIC No. 4.21.2, the
error was harmless. First, considering “the instructions as a whole,” we do not believe
that “ ‘it is reasonably likely the jury misconstrued the instructions as precluding it from
considering’ the intoxication evidence in deciding aiding and abetting liability.”
(Mendoza, supra, 18 Cal.4th at p. 1134.) The trial court did instruct the jury that it could
consider evidence of defendant’s intoxication in deciding whether defendant had the
required mental state as to all seven counts. (Compare id. at pp. 1121-1122 [trial court
instructed jury that it could not consider intoxication as to general intent crime, but could
consider intoxication as to specific intent crime].)
Second, we are convinced that it is not reasonably probable that the jury’s verdict
was in any way affected by the trial court’s failure to specifically instruct the jury that it
could consider the evidence of defendant’s intoxication in deciding his liability as an
aider and abettor. There was minimal evidence that defendant was intoxicated. Several
witnesses did testify that defendant had been drinking beer, but none mentioned the
amount. Only Branson testified that defendant appeared to be affected by alcohol: she
described him as being a little bit “buzzed.” However, Officer Abbott testified that he
observed no signs of intoxication when he arrested defendant. This evidence was not
strong enough to create a reasonable probability that the jury would have found that
defendant was unable to form the mental state required for aiding and abetting because of
intoxication. Finally, as noted above, the prosecutor did not even pursue an aiding and

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abetting theory. Therefore, it was not likely that the jury convicted defendant based on
that theory of liability.
E. CALJIC No. 2.15
The trial court instructed the jury pursuant to 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 is
guilty of the crime of burglary, receiving stolen property and/or theft. 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, that is time, place and manner, that the defendant had an
opportunity to commit the crime charged, and any other evidence which tends to connect
the defendant with the crime or crimes charged.”
Defendant contends this instruction undercut the prosecution’s burden of proving
his guilt beyond a reasonable doubt and allowed the jury to infer defendant’s guilt even if
he satisfactorily explained his possession of the stolen property. He claims that as a
result, the instruction violated his right to due process and denied him a fair jury trial.
(U.S. Const., 5th & 6th Amends.)
In People v. Williams (2000) 79 Cal.App.4th 1157 (Williams), this court rejected a
similar argument. We explained, “Defendant also claims that CALJIC No. 2.15 denied
him due process. Citing Barnes v. United States (1973) 412 U.S. 837, he claims that the
traditional, common law rule, recognized by the United States Supreme Court, permits an
inference of guilt from three foundational facts: recently stolen property, the defendant’s
possession of it, and the lack of an explanation. Defendant points out that CALJIC No.
2.15 permits an inference from (1) a finding of ‘conscious possession of recently stolen
property’ and (2) corroborating evidence, including a lack of explanation; the time, place,

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and manner of possession; the defendant’s opportunity to commit the charged offense;
the defendant’s conduct or statements concerning the property; a false explanation for
possession; or other evidence connecting the defendant to the crime. Defendant claims
that by shifting the ‘lack of explanation’ factor from a foundational requirement to
merely one of any number of alternative corroborating factors, CALJIC No. 2.15 lessens
the prosecution’s burden of proof. Indeed, the prosecution need not establish the lack of
an explanation at all. Thus, defendant claims the instruction denied him due process of
law. This claim is meritless.
“Barnes does not suggest that the failure to explain possession of recently stolen
property is a constitutionally-mandated foundational requirement for drawing an
inference of guilt. Nor does Barnes suggest that no circumstances other than the lack of
an explanation can combine with conscious possession of recently stolen property to
support an inference of guilt. Rather, as CALJIC No. 2.15 acknowledges, an inference of
guilt may rationally arise from the concurrence of conscious possession and many other
circumstances. For example, where the evidence supports a finding that an arrestee had
stolen property in his pocket a short time after a robbery and that the arrestee was seen
approaching the victim a short time before the robbery, the inference of guilt is
reasonable, if not compelling, regardless of whether or not the arrestee explained how he
obtained the property. Moreover, this inference is reasonable even if the arrestee gives a
plausible explanation for having the property. In our view, 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. Indeed, CALJIC No. 2.15 has repeatedly withstood

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challenges on the grounds that it lessens the burden of proof or otherwise denies a
defendant due process of law. [Citations.]” (Williams, supra, 79 Cal.App.4th at pp.
1173-1174.)
Defendant requests we reconsider the position we took in Williams. However, we
believe our prior opinion in Williams is correct and decline to revisit the issue.
F. Accomplice Instruction
The trial court instructed the jury pursuant to CALJIC No. 3.11 as follows: “You
cannot find a defendant guilty based upon the testimony of an accomplice unless that
testimony is corroborated by other evidence which tends to connect the defendant with
the commission of the offense. [¶] Testimony of an accomplice includes any out-of-
court statement purportedly made by an accomplice received for the purpose of proving
that what the accomplice stated out of court was true.”
Defendant contends the trial court erred by failing to instruct the jury that it could
not convict him based on the testimony of an accomplice unless the accomplice’s
testimony was corroborated by evidence relating to an element of the offense.
In People v. Jenkins (1973) 34 Cal.App.3d 893, the defendant requested that the
trial court modify the standard accomplice testimony instruction to add the following
statement: “ ‘Such corroborative evidence must relate to some act or fact which is an
element of the offense charged.’ ” (Id. at p. 899.) The court explained that “[t]he
proposed amendment is a correct statement of law.” (Ibid.; see also People v. Sully
(1991) 53 Cal.3d 1195, 1228.) Nonetheless, the court found no error. “[T]he test to be
applied is not whether the proposed instruction was correct, but whether the jury was
fully and fairly instructed on the applicable law. There is no requirement that the jury be
instructed in the precise language requested by a party. [Citation.] Appellants argue that
the instruction given by the court would allow corroboration to be of irrelevant parts of

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the accomplice testimony. We have read the instruction and do not find it subject to that
infirmity and find no error.” (People v. Jenkins, supra, 34 Cal.App.3d at p. 899.)
While the instruction would have been legally correct if it had included the
language defendant suggests, “defendant cites no authority that would have imposed on
the trial court the sua sponte duty so to modify CALJIC No. [3.11].” (People v. Lawley
(2002) 27 Cal.4th 102, 161.) “If defendant believed that a modification to CALJIC No.
[3.11] was required, he was obligated to request it.” (People v. Rodrigues (1994)
8 Cal.4th 1060, 1142.)
In this case the accomplice testimony implicating defendant was Branson’s post-
arrest confession, in which she implicated defendant. Contrary to defendant’s assertion,
the prosecutor did not urge the jury to find corroboration from evidence that did not relate
to an element of the charged crimes. Rather, the prosecutor focused on the fact that
defendant was riding in a car that “was filled with stolen property” and that “[i]n his
pocket were fourteen stolen CD’s.”
We conclude the trial court did not err by failing to modify CALJIC No. 3.11 sua
sponte.
G. Three Strikes Law
Defendant contends there was insufficient evidence to support the trial court’s
finding that he suffered a “strike” within the meaning of section 667, subdivisions (b)
through (i) and section 1170.12.
Section 667, subdivision (d)(3) provides: “A prior juvenile adjudication shall
constitute a prior felony conviction for purposes of sentence enhancement if: [¶]
(A) The juvenile was 16 years of age or older at the time he or she committed the prior
offense. [¶] (B) The prior offense is listed in subdivision (b) of Section 707 of the
Welfare and Institutions Code or described in paragraph (1) or (2) as a felony. [¶]
(C) The juvenile was found to be a fit and proper subject to be dealt with under the

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juvenile court law. [¶] (D) The juvenile was adjudged a ward of the juvenile court
within the meaning of Section 602 of the Welfare and Institutions Code because the
person committed an offense listed in subdivision (b) of Section 707 of the Welfare and
Institutions Code.”
The list of offenses in Welfare and Institutions Code section 707, subdivision (b)
includes “[a]ssault with a firearm or destructive device” and “[a]ssault by any means of
force likely to produce great bodily injury.” (Welf. & Inst. Code, § 707, subd. (b)(13) &
(14).) It does not include assault with a deadly weapon.
The information alleged that defendant suffered a prior juvenile adjudication,
namely, assault by means of force likely to produce great bodily injury (§ 245, subd. (a)),
and that in committing the assault he had personally inflicted great bodily injury on a
person other than an accomplice (§ 12022.7).
To prove the “strike” allegation, the prosecution introduced the Welfare and
Institutions Code section 602 petition in the prior juvenile case, which alleged that
defendant committed “an assault upon [the victim] with a deadly weapon, to wit: a knife,
and by means o[f] force likely to produce great bodily injury, thereby violating Section
245(a) . . . .” The petition further alleged that defendant personally inflicted great bodily
injury upon the victim within the meaning of section 12022.7.
The prosecution also introduced a partial transcript of the jurisdictional hearing in
the prior juvenile case. The victim testified that he and his friend John had two
encounters with defendant on May 25, 1989. The first encounter was in a beach parking
lot. Defendant and his friend Dave approached, indicated he was in a gang, made a
threat, and pulled out a switchblade knife. He handed the knife to Dave, who made some
comments and then returned the switchblade to defendant. Later that day, the victim and
John encountered defendant and Dave in a restaurant. Dave told the victim, “This isn’t
your day, Dude.” Dave accused the victim of being a “Blood.” The victim said, “Don’t
call me ‘Blood.’ ” Defendant walked up to John and said, “Let’s take it outside, Pretty

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Boy. I’m going to fuck you up.” John told defendant to “chill.” Defendant continued to
taunt John. As John got up to get his food, defendant and Dave both ran at him. The
victim grabbed defendant before he could get to John. The next thing he remembered
was “standing in the corner and bleeding.” He noticed he was bleeding and could not
breathe. He was hospitalized for 29 days due to a severe puncture wound in his back.
The wound was about three inches long and one inch wide.
The prosecution also introduced a document from the juvenile case indicating that,
after the jurisdictional hearing, the trial court had found the allegations of the petition true
beyond a reasonable doubt.
Trial counsel argued that the prosecution’s evidence did not establish that
defendant committed an assault by means of force likely to produce great bodily injury
rather than an assault with a deadly weapon. He noted that the victim’s testimony did not
include anything “about the means or manner by which the knife was used.”
The trial court disagreed, finding “beyond a reasonable doubt that the prior as
alleged is a strike prior, not only within the [section] 667[, subdivision (b)] through [(i)]
language, but also within the provisions of the Welfare and Institutions Code [section]
707[, subdivision (b)].”
Defendant reiterates his argument here, claiming that there was insufficient
evidence to support the trial court’s finding that his prior juvenile adjudication was for
assault by means of force likely to produce great bodily injury – “an offense listed in
subdivision (b) of Section 707 of the Welfare and Institutions Code.” (§ 667, subd.
(d)(3)(D).)
Here, the petition in the juvenile case was phrased in the conjunctive. It alleged
that defendant committed “an assault upon [the victim] with a deadly weapon, to wit: a
knife, and by means o[f] force likely to produce great bodily injury.” (Italics added.)
“Merely because the complaint is phrased in the conjunctive, however, does not prevent a
trier of fact from convicting a defendant if the evidence proves only one of the alleged

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acts. [Citation.]” (In re Bushman (1970) 1 Cal.3d 767, 775, disapproved on other
grounds by People v. Lent (1975) 15 Cal.3d 481, 486, fn. 1.) Thus, the juvenile court
could have sustained the petition based on a finding that defendant committed either an
assault with a deadly weapon or an assault by means of force likely to produce great
bodily injury.
The People point out that “a ‘deadly’ weapon is one that is used in such a manner
as to be capable of producing death or great bodily injury. [Citations.]” (People v.
Aguilar (1997) 16 Cal.4th 1023, 1033, italics omitted (Aguilar).) They contend that an
assault committed with a deadly weapon is inherently an assault committed by means of
force likely to produce great bodily injury.
The People’s argument is supported by Aguilar, supra, 16 Cal.4th 1023. In that
case, the defendant was convicted of violating section 245, subdivision (a)(1). At trial,
the prosecutor had argued that the jury could find that the defendant had committed an
assault with a deadly weapon because he had used his hands and feet to commit the
assault. The Supreme Court concluded that hands and feet were not deadly weapons;
thus, the prosecutor had invited the jury to convict based on an incorrect theory. The
conviction could stand, however, because the jury must have found that the defendant
had committed an assault by means of force likely to produce great bodily injury. The
court explained: “Ultimately (except in those cases involving an inherently dangerous
weapon), the jury’s decisionmaking process in an aggravated assault case under
section 245, subdivision (a)(1), is functionally identical regardless of whether, in the
particular case, the defendant employed a weapon alleged to be deadly as used or
employed force likely to produce great bodily injury; in either instance, the decision turns
on the nature of the force used.” (Id. at p. 1035.) The court further observed that
“despite the identity of the jury’s reasoning processes under either the ‘deadly weapon’
clause or the ‘force likely’ clause in this case, our holding does not reduce the former
clause to surplusage. There remain assaults involving weapons that are deadly per se,

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such as dirks and blackjacks, in which the prosecutor may argue for, and the jury convict
of, aggravated assault based on the mere character of the weapon. [Citation.]” (Id. at p.
1037, fn. 10; see also People v. Flynn (1995) 31 Cal.App.4th 1387, 1394 [“the allegation
of assault with a deadly weapon, to wit, a knife and by means of force likely to produce
great bodily injury placed appellant on notice that he was charged with committing the
assault by wielding a knife with force likely to produce great bodily injury”].)
A knife is not an inherently deadly weapon. (People v. Herd (1963)
220 Cal.App.2d 847, 850.) Therefore, under the reasoning of Aguilar, because the
juvenile court found defendant committed “an assault upon [the victim] with a deadly
weapon, to wit: a knife, and by means o[f] force likely to produce great bodily injury,
thereby violating Section 245(a),” it had to have found that defendant committed an
assault by means of force likely to produce great bodily injury.
H. Ineffective Assistance of Counsel
Defendant contends he received ineffective assistance of counsel at sentencing.
He claims that trial counsel should have objected to the trial court’s manner of calculating
the restitution fine (§ 1202.4) and parole revocation fine (§ 1202.45).
In order to establish that trial counsel was constitutionally ineffective, defendant
must show (1) that he failed to act in a manner to be expected of a reasonably competent
attorney acting as a diligent advocate and (2) that defendant was prejudiced thereby.
(People v. Ledesma (1987) 43 Cal.3d 171, 216-217; People v. Pope (1979) 23 Cal.3d
412, 423-425; Strickland v. Washington (1984) 466 U.S. 668, 687-688.)
Regarding the first prong, if trial counsel’s omissions stemmed from an informed
tactical choice that a reasonably competent attorney might make, the conviction must be
affirmed. (People v. Pope, supra, 23 Cal.3d at p. 425; People v. Lucas (1995) 12 Cal.4th
415, 437; People v. Diaz (1992) 3 Cal.4th 495, 557.) We must be “highly deferential” to
the tactical decisions made by counsel. (Strickland v. Washington, supra, 466 U.S. at

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p. 689.) There is a “strong presumption that counsel’s conduct falls within the wide
range of reasonable professional assistance.” (Ibid.)
As for the second prong, a defendant establishes prejudice by demonstrating that
without the deficient performance there is a reasonable probability the result would have
been more favorable. In other words, even if counsel’s actions fall below the threshold of
reasonableness, appellant must still demonstrate that counsel’s actions were prejudicial.
(People v. Ledesma, supra, 43 Cal.3d at p. 218.) In fact, we “need not determine whether
counsel’s performance was deficient before examining the prejudice suffered by the
defendant as a result of the alleged deficiencies. . . . If it is easier to dispose of an
ineffectiveness claim on the ground of lack of sufficient prejudice . . . , that course should
be followed.” (Strickland v. Washington, supra, 466 U.S. at p. 697.)
At the sentencing hearing, the trial court imposed a restitution fine of $4,800
pursuant to section 1202.4, subdivision (b), and imposed a suspended parole revocation
fine equal to the amount of restitution fine, pursuant to section 1202.45. Although the
trial court had discretion to consider any relevant factors in fixing the amount of the
restitution fine (§ 1202.4, subd. (d)), the record indicates that the trial court explicitly
relied upon the formula authorized by section 1202.4, subdivision (b)(2): “In setting a
felony restitution fine, the court may determine the amount of the fine as the product of
two hundred dollars ($200) multiplied by the number of years of imprisonment the
defendant is ordered to serve, multiplied by the number of felony counts of which the
defendant is convicted.” Here, the trial court multiplied $200 times four (the number of
years of imprisonment), times six (the number of felony counts) to reach the $4,800
figure.
Defendant asserts that the trial court erred by counting the convictions on counts 3,
4, 6, and 7 toward the total number of convictions for purposes of calculating the
restitution fine since the sentences on those convictions were stayed pursuant to section
654. Recognizing that his failure to object results in waiver (see People v. Scott (1994) 9

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Cal.4th 331), he argues that trial counsel was ineffective for failing to argue that, by
counting those convictions, the trial court imposed multiple punishment in violation of
section 654.3
The People argue that trial counsel was not ineffective for failing to object,
because such an argument would have lacked merit. They claim that section 654 does
not apply to restitution fines because restitution fines are not punishment, and because
section 654 refers to a “term of imprisonment.” Defendant points out that in People v.
Hanson (2000) 23 Cal.4th 355, 362, the court held that a restitution fine constitutes
punishment for double jeopardy purposes.
“Section 654 precludes multiple punishments for a single act or indivisible course
of conduct. [Citation.]” (People v. Hester (2000) 22 Cal.4th 290, 294.) While section
654 does not bar multiple convictions, it generally “prohibits the use of a conviction for
any punitive purpose if the sentence on that conviction is stayed.” (People v. Pearson
(1986) 42 Cal.3d 351, 359-361 (Pearson).)
In Pearson, the court considered whether both convictions stemming from the
same act could be used to impose a sentence enhancement in the future. The court
concluded: “[C]onvictions for which service of sentence was stayed [pursuant to section
654] may not be so used unless the Legislature explicitly declares that subsequent penal
or administrative action may be based on such stayed convictions. Without such a
declaration, it is clear that section 654 prohibits defendant from being disadvantaged in
any way as a result of the stayed convictions.” (Pearson, supra, 42 Cal.3d at p. 361.)
In People v. Gangemi (1993) 13 Cal.App.4th 1790, the court determined that
3 Section 654 provides, in relevant part: “(a) 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. An acquittal or conviction and
sentence under any one bars a prosecution for the same act or omission under any other.”

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separate penal fines for each filing of a false deed of trust on a single family residence did
not violate section 654. The court focused on the statutory language of section 115,
which provides in pertinent part: “ ‘(d) For purposes of prosecution under this section,
each act of procurement or of offering a false or forged instrument to be filed, registered,
or recorded shall be considered a separately punishable offense.’ ” The court concluded
that the Legislature had “authorized the imposition of separate penalties for each
prohibited act even though they may be part of a continuous course of conduct and have
the same objective.” (People v. Gangemi, supra, 13 Cal.App.4th at p. 1800.)
Although a statute need not expressly refer to section 654 in order to override the
prescription against multiple punishment (see People v. Benson (1998) 18 Cal.4th 24, 31-
33), section 1202.4 contains nothing more than a reference to the felony counts of which
the defendant was convicted. There is no explicit language in section 1202.4 that
suggests that the Legislature intended an exception to section 654. In addition, we have
not been directed to any legislative history suggesting intent to override section 654.
We hold that counting the convictions for which a sentence was stayed pursuant to
section 654 toward the “number of felony counts of which the defendant is convicted”
when calculating a restitution fine as provided by section 1202.4, subdivision (b)(2),
amounts to impermissible “ ‘incremental punishment’ ” under section 654. (Pearson,
supra, 42 Cal.3d at p. 362.)
Pursuant to section 1202.4, subdivision (b)(1), the trial court had discretion to set
the restitution fine at an amount “commensurate with the seriousness of the offense.”
The People argued that the trial court therefore could have imposed the same amount of
restitution without using the formula set forth in section 1202.4, subdivision (b)(2).
However, there is no indication that the trial court would have done so. Rather, because
the trial court relied on the statutory formula, it appears reasonably probable that the trial
court may have set a smaller restitution fine if trial counsel had objected. Therefore, we
will remand for resentencing.

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Defendant also contends that trial counsel should have objected when the trial
court counted the conviction on count 2 toward the total number of convictions for
purposes of calculating the restitution fine, since the sentence for that conviction was
imposed concurrently to the sentence for count 1. He argues that the trial court’s
imposition of a concurrent term for that count indicates that the trial court believed
defendant should not suffer additional punishment. Nothing in section 654 or section
1202.4 precluded the trial court from imposing restitution on a count for which a
concurrent term is imposed. However, the trial court may consider this argument upon
remand.
We will remand for resentencing to allow the trial court to impose a new
restitution fine (§ 1202.4, subd. (b)) and a new, corresponding parole revocation find
(§ 1202.45).
III. DISPOSITION
The judgment is reversed and the matter is remanded for resentencing.
__________________________________________________
BAMATTRE-MANOUKIAN, ACTING P.J.
WE CONCUR:
_________________________
MIHARA, J.
_________________________
RUSHING, J.

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