Filed 3/28/14 P. .v Shackleford CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,

     Plaintiff and Respondent,                                         G047205

         v.                                                            (Super. Ct. No. 09WF2281)

ROGER NEAL SHACKLEFORD,                                                OPINION

     Defendant and Appellant.



                   Appeal from a judgment of the Superior Court of Orange County, Frank
F. Fasel, Judge. (Retired judge of the Orange Super. Ct. assigned by the Chief Justice
pursuant to art. VI, § 6 of the Cal. Const.) Affirmed in part, reversed in part, and
modified.
                   Michael Norris for Defendant and Appellant.
                   Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Kristine A. Gutierrez,
Lynne G. McGinnis and Alastair Agcaoili, Deputy Attorneys General, for Plaintiff and
Respondent.
                The main issue at trial in this case was identification. Appellant Roger
Shackleford claimed he was wrongly implicated in a daytime burglary that took place in
Huntington Beach in 2009. A jury convicted him of that crime, as well as street
terrorism. It also found appellant committed the burglary for the benefit of his gang.
Appellant contends the trial court erred in admitting evidence of an uncharged burglary,
the burglary charge should have been tried separately from the gang charges, and there is
insufficient evidence to support the jury’s findings. Although we reject these claims, we
agree with appellant that his sentence on the gang enhancement must be reduced from 10
to 5 years because the prosecution did not plead the factual requirements to permit the
greater punishment. Other than to modify appellant’s sentence in that regard, we affirm
the judgment.
                                           FACTS
                On August 11, 2009, Shane Truax of Huntington Beach stayed home from
work and slept in late because he had a cold. Shortly after noon, he was awakened by
noises. He thought it was his roommates coming and going, but when he got up and
opened his bedroom door, he saw an intruder holding a nylon stocking. When Truax
asked him what he was doing, the man turned and ran out the front door.
                Truax promptly gave chase. When he got to his driveway, he paused
momentarily, and a second man darted out of his house and ran past him. The second
man came within a couple of feet of Truax, giving Truax a pretty good look at the side of
his face. The second man followed the first, and Truax ran after both of them. About
halfway down the block, a car pulled up in the middle of the street, and the two men got
inside. The car took off before Truax had a chance to see the driver, but he was able to
get the car’s license number.
                When Truax got back to his house, he called 911 and discovered his
roommates’ bedrooms had been ransacked. He also found a pillowcase that contained a
laptop computer, watch and other items that belonged to his roommates. When the police

                                               2
arrived, Truax told them the men he had encountered were both black. He described the
first one as 19 years old, five-foot eleven with a medium build and short hair, and the
second one as 17 years old, five-foot eight, with braided, “cornrow” style hair.
              The police traced the license number of the getaway car to Midway Car
Rental. Midway’s records showed the car had been rented to Erica Jones on August 10,
2009, the day before the Truax burglary. Jones returned the car on August 17, 2009, at
which time she rented another vehicle, a white Toyota Camry.
              The next day, sheriff’s deputies stopped the Camry for a traffic violation in
South Central Los Angeles. At that time, appellant was behind the wheel, his brother
Rodney was in the front passenger seat, and codefendant Frank Tisby was in the back of
the car. Tisby had short hair and a goatee. In response to the deputies’ questions, he and
Rodney both admitted they belonged to the Rollin’ 30’s Crips. The police also learned
Rodney was Jones’ boyfriend.
              On September 10, 2009, a month after Truax’s home was burglarized, the
police showed him three photographic lineups containing six photos each. In the first
lineup, Truax identified Tisby as the person he had seen inside his house. In the second
lineup, he identified appellant as the person who ran past him in the driveway. And in
the third lineup, which contained Rodney’s picture, Truax did not identify anyone.
              At the preliminary hearing, Truax was unable to identify appellant. And at
trial, he initially identified appellant as the person who he had seen inside his house, and
Tisby as the one who ran past him in the driveway. However, after speaking to the
prosecutor during a break in the proceedings, Truax changed his testimony to conform to
his pretrial identifications, saying Tisby was the first man he encountered and appellant
was the second. He said he got appellant and Tisby mixed up in the courtroom because
their appearances had changed since the burglary, and Tisby was wearing his hair in
cornrows during the trial.



                                              3
              Police Sergeant Rich Burgoyne, who conducted the photo lineups, testified
appellant was in fact a lot slimmer and Tisby was a lot heavier back in 2009 than they
were at the time of trial in 2012. He also recollected that, in 2009, Tisby had a short,
clean-cut hairstyle, and appellant wore his hair in cornrows.
              Sheri Tully testified about an incident that occurred on November 5, 2009,
three months after the Truax burglary. At 11:45 that morning, Tully noticed a woman
pounding on her neighbor’s front door in Torrance. Just as Tully was about to tell the
woman that no one was home, she walked to a car that was parked in front of the
neighbor’s house and drove away.
              About five minutes later, the car returned to the same spot. This time, two
black males exited the vehicle. Tully watched as they entered her neighbor’s front gate
and made their way in to the backyard. At that point, she lost sight of the men and called
911. Then she saw the men leaving the backyard at a brisk pace. One of the men had a
sock or a glove on, and the other had a teardrop tattoo under his right eye. They entered
the car that had dropped them off, and then the car drove away.
              When the police arrived, they took Tully to a nearby shopping center to see
if she recognized a car that had been abandoned there. The car belonged to Rodney’s
girlfriend Erica Jones, and Tully identified it as the vehicle she had seen. When shown a
photographic lineup, Tully also identified appellant as the man with the teardrop tattoo.
At trial, she confirmed appellant was that person.
              Gang expert Ryan Marshall of the Los Angeles Police Department testified
he works in the area of South Central Los Angeles that is claimed by the Rollin’ 30’s
Crips. He said the gang is primarily made up of African-American males, and it had
about 700 members in 2009. As part of his duties, Marshall has investigated and talked
to numerous members of the gang, including appellant and Tisby. They have admitted
being members of the Rollin’ 30’s, and appellant has a tattoo signifying his allegiance to
the gang.

                                              4
              Marshall testified the primary activities of the Rollin’ 30’s are narcotics
sales, shootings, robbery and residential burglary. Most of the residential burglaries are
committed outside the gang’s territory, in the greater Los Angeles area. They are also
usually committed in a particular fashion that has earned the Rollin’ 30’s the nickname
“the knock-knock burglars.”
              Describing how these burglaries are typically carried out, Marshall said
three or four Rollin’ 30’s members will use a rental car that is registered to a third person,
so the vehicle is harder to trace to them. Then they will drive to an area in the middle of
the day, when people are likely to be at work. They will knock on the door, and if
someone answers, they will make up an excuse for being there and leave. But if no one
answers, they will go around to the side or back of the house and enter through a door or
window. Then they will grab a pillowcase and start loading up portable valuables, such
as jewelry, money and electronics. To avoid detection, the burglars wear gloves, and
their driver will sometimes utilize a police scanner to monitor law enforcement activity in
the area.
              Marshall testified there is a clique of Rollin’ 30’s members who specialize
in these types of burglaries. These members have to be able to trust each other in terms
of knowing what to do and knowing they will not tell on each other if they get caught by
the police. The burglaries are a way for the clique members to “put in work” for the
gang. The burglaries bring in money for the gang, which not only allows its members to
buy drugs and guns, but to pay for rental cars to commit additional burglaries. The
money also allows Rollin’ 30’s members to wear nice clothes and have big parties, which
are important for recruiting younger members. Based on the circumstances presented in
this case, Marshall opined the Truax burglary was committed for the benefit of the
Rollin’ 30’s gang.
              Looking at appellant in the courtroom, Marshall said he bears a close
resemblance to his brother Rodney. Marshall also testified appellant weighed less and

                                              5
wore his hair in cornrows when the burglary occurred in 2009. In comparison, Tisby
looked thinner at trial than the last time Marshall had seen him before trial. Marshall said
that outside the trial in this case, he had never seen Tisby wear his hair in cornrows.
               Appellant’s defense was mistaken identification. In support of that defense,
appellant’s former girlfriend testified appellant was with her in Studio City on the
morning of the Truax burglary. Appellant’s barber testified he had never seen appellant
wear his hair in cornrows. And Jones testified she had never given appellant permission
to use her car. However, in rebuttal, Sergeant Burgoyne testified that when he
interviewed Jones in October 2009, she said appellant did have permission to drive her
car.
               The parties stipulated the Rollin’ 30’s were a criminal street gang at the
time of the Truax burglary. They also stipulated the rental car used in that burglary was
examined and found to contain the fingerprints of Rodney and a woman named Virginia
Williams, but not appellant’s.
               The jury convicted appellant of first degree residential burglary and active
participation in a criminal street gang, aka street terrorism. (Pen. Code, §§ 459, 460,
subd. (a), 186.22, subd. (a).)1 It also found true the allegation he committed the burglary
for the benefit of a criminal street gang. (§ 186.22, subd. (b)(1).) In a bifurcated
proceeding, the trial court found appellant had suffered a prior serious felony and a prior
strike conviction, and he had also served a prior prison sentence. (§§ 667, subds. (a)(1) &
(b)-(i), 667.5, subd. (b).)
               The trial court sentenced appellant to eight years in prison for the burglary
(double the midterm), plus ten years for the gang enhancement on the belief the burglary
constituted a violent felony. (§ 186.22, subd. (b)(1)(C).) The court stayed appellant’s




       1       Unless noted otherwise, all further statutory references are to the Penal Code.


                                                       6
sentence for street terrorism and imposed a five-year term based on his prior serious
felony conviction, bringing his total term of imprisonment to 23 years.
                                                          I
                  Appellant contends the trial court erred in admitting Tully’s testimony
about the alleged burglary of her neighbor’s residence in Torrance. Because appellant
was not tried in connection with that burglary, he argues Tully’s testimony was irrelevant
and unduly prejudicial. We disagree.2
                  Although appellant was not tried in connection with the burglary Tully
witnessed, he was charged in Los Angeles Superior Court with committing that offense.
However, following the preliminary hearing, the court granted the prosecution’s motion
to dismiss the case in the interest of justice. (§ 1385.) In light of that dismissal, appellant
argued below that Tully’s testimony should have been excluded. However, given the
similarities between the Torrance burglary and the Truax burglary, the trial court ruled
Tully’s testimony was more probative than prejudicial and thus admissible. In instructing
on the permissible use of that testimony, the court told the jurors they could only consider
it with respect to the issues of identification and as to whether appellant acted pursuant to
a common plan or scheme. The court prohibited the jury from using Tully’s testimony to
conclude appellant “had a bad character or is disposed to commit crime.”
                  Generally, evidence of a defendant’s uncharged conduct is inadmissible to
prove his behavior on a specific occasion or his propensity for criminal activity. (Evid.
Code, § 1101, subd. (a).) However, such evidence may be admitted to prove some other
material fact, such as identity, plan or motive. (Id., subd. (b).) While evidence of
uncharged conduct may be excluded under Evidence Code section 352 if its probative
value is substantially outweighed by its prejudicial effect, the trial court has considerable


         2        The trial court also admitted evidence of another uncharged residential burglary that was carried
out by Tisby and Justin Stevens in April 2010. However, appellant does not challenge the admission of this
evidence.


                                                          7
discretion in making this determination. (People v. Ewoldt (1994) 7 Cal.4th 380, 404-
405.) We will not disturb a court’s decision in this regard unless it is arbitrary, capricious
or patently unreasonable. (People v. Ochoa (2001) 26 Cal.4th 398, 437-438; People v.
Kipp (1998) 18 Cal.4th 349, 371.)
               Appellant argues that since the charges against him in the Torrance case
were dismissed, Tully’s testimony had no logical bearing on the present case. In so
arguing, he assumes the Torrance case was dismissed because the prosecution was unable
to prove he was involved in it. But there is no evidence in the record to support that
assumption. All we know is that, pursuant to section 1385, the case was dismissed in the
interests of justice.
               In any event, a prior trial and/or conviction is not required before evidence
of uncharged conduct may be admitted. So long as there is “evidence” that the defendant
committed “a crime, civil wrong or other act” that is relevant to the present case, the trial
court may admit it. (Evid. Code, § 1101, subd. (b).) This is true whether the conduct in
question occurred before or after the charged offense. (People v. Griffin (1967) 66
Cal.2d 459, 464-465; People v. Taylor (1986) 180 Cal.App.3d 622, 626.)
               In her testimony, Tully implicated appellant in suspicious activity that
occurred at her neighbor’s house three months after the charged offense. Although the
charges against appellant were dropped in that case, Tully’s testimony was sufficient to
connect to him to that incident. Moreover, as her testimony revealed, the circumstances
of that incident were similar to the charged offense in that it involved two black men
prowling around a residence in the middle of the day. Each case involved a getaway
driver, each case had trappings of the “knock-knock” burglaries appellant’s gang was
known for, and in each case, Erica Jones, the girlfriend of appellant’s brother Rodney,
was connected to the getaway car. The similarities between the Torrance incident and the
Truax burglary were sufficient to make Tully’s testimony relevant to the issues of
identification and whether the burglars utilized a common plan in carrying out the crimes.

                                              8
                As far as prejudice is concerned, the record shows Tully’s testimony about
the Torrance incident was not very lengthy, nor was it any more inflammatory than the
evidence respecting the Truax burglary. The trial court limited the jury’s consideration of
her testimony to relevant issues and prohibited the prosecution from using her testimony
to tarnish appellant’s character. Considering all of these circumstances, we do not
believe the trial court erred in allowing Tully to testify. We discern no abuse of
discretion in the court’s ruling.
                                               II
                Appellant also contends that, in order to ensure he received a fair trial on
the burglary charge, he should have been separately tried on that charge before he was
tried on the gang charges. That way, we are told, the jury would have been able to decide
his fate on the burglary charge without reference to any prejudicial gang evidence. We
see no abuse of discretion in the trial court’s decision to try appellant on all of the charges
in a single trial.
                In the interest of judicial economy, there is a preference that all charges
against a defendant be handled in one proceeding. (Alcala v. Superior Court (2008) 43
Cal.4th 1205, 1220.) Absent a clear showing joinder resulted in prejudice to the
defendant, we will not disturb a trial court’s refusal to sever charges which were properly
consolidated in a single case. (Ibid.) “If the evidence underlying the charges in question
would be cross-admissible, that factor alone is normally sufficient to dispel any
suggestion of prejudice and to justify a trial court’s refusal to sever properly joined
charges. [Citation.]” (People v. Soper (2009) 45 Cal.4th 759, 774-775.) This rule
applies in gang cases such as the one at bar. (People v. Hernandez (2004) 33 Cal.4th
1040.) Therefore, if the evidence supporting the gang charges would be admissible at a
trial on the nongang charges, “any inference of prejudice would be dispelled and
bifurcation would not be necessary.” (Id. at p. 1050.)



                                                9
              Speaking to the issue of cross-admissibility, appellant argues Marshall’s
testimony regarding the Rollin’ 30’s expertise in committing knock-knock burglaries was
irrelevant to the underlying burglary charge because “there was no evidence that the
charged burglary fit the description of a ‘knock-knock burglary.’” However, the Truax
burglary occurred in a residential neighborhood in the middle of the day. It was carried
out by two black men, one of whom utilized a pillowcase to stash his loot. And the
burglars utilized a getaway car that was rented by a third party. As Marshall explained,
these are all tell-tale characteristics of a knock-knock burglary.
              Appellant is correct that there was no direct evidence the burglars knocked
on Truax’s door before entering his residence. However, there was circumstantial
evidence to that effect. Truax testified he was awakened by noises he assumed were
coming from his roommates. But since his roommates were not home at the time of the
burglary, the jury could infer the sounds that woke him up were caused by the burglars
knocking on his front door. It is entirely plausible that when Truax didn’t answer the
door, the burglars entered his house under the mistaken belief no one was home. Suffice
it to say, the Truax burglary had enough similarities to a knock-knock burglary to make
Marshall’s testimony pertinent to the issues of identity and modus operandi.
              Marshall’s testimony was also relevant to explain appellant’s motive for the
burglary. Marshall stated that, beyond the obvious personal financial incentive inherent
in most burglaries, part of the money gang members acquire from such crimes goes
toward buying drugs and guns for their gang and recruiting other gang members. He said
this was true of the Rollin’ 30’s in particular. Since bringing in money is part of what
gang members are expected to do, appellant’s gang membership was relevant in terms of
showing his motive to commit the charged offense. And since the gang evidence was
cross-admissible, any inference of prejudice from combining the gang charges with the
burglary charge in a single trial was effectively dispelled. A joint trial on all the charges
did not constitute an abuse of discretion or infringe appellant’s right to a fair trial.

                                               10
                                             III
              Next, appellant claims there is insufficient evidence the burglary was gang
related, so as to support the jury’s findings on the gang charges. The claim is unavailing.
              The standard of review for assessing the sufficiency of the evidence to
support a criminal conviction is “highly deferential.” (People v. Lochtefeld (2000) 77
Cal.App.4th 533, 538.) Our task is to “‘“examine the whole record in the light most
favorable to the judgment to determine whether it discloses substantial evidence[.]”’”
(People v. Alexander (2010) 49 Cal.4th 846, 917.) “Although we must ensure the
evidence is reasonable, credible, and of solid value,” we must keep in mind “it is the
exclusive province of the trial judge or jury to determine the credibility of a witness and
the truth or falsity of the facts on which that determination depends. [Citation.]” (People
v. Jones (1990) 51 Cal.3d 294, 314; see also People v. Elliott (2012) 53 Cal.4th 535,
585.)
              As a technical point of clarification, the gang “enhancement under section
186.22 (b)(1) punishes gang-related conduct, i.e., felonies committed with the specific
intent to benefit, further, or promote the gang. [Citation.]” (People v. Rodriguez (2012)
55 Cal.4th 1125, 1138.) In comparison, the gravamen of street terrorism is active
participation in a criminal street gang. (People v. Albillar (2010) 51 Cal.4th 47, 55.)
Contrary to appellant’s assumption, the elements of that crime “can be satisfied without
proof the felonious conduct [at issue] promoted, furthered, or assisted was gang related.”
(Id. at p. 56.) Therefore, appellant’s complaint about the lack of evidence showing the
burglary was gang related only pertains to the gang enhancement.
              That said, there is substantial evidence the Truax burglary was gang
related. Appellant and Tisby were members of a gang that specialized in the commission
of residential burglaries. They were clearly working in association with each other when
they broke into Truax’s home looking for things to steal. And they made their getaway in
a car that was rented by a third party, which their gang was known to do. By virtue of

                                             11
their gang association, they knew they could rely on each other to work together
proficiently and not implicate one another if they got caught. In that sense, their gang ties
allowed them to commit the burglary with increased efficiency and confidence, even
though the crime did not play out as they expected. (See People v. Albillar, supra, 51
Cal.4th 47 at p. 61 [jury could find crime was gang related where defendants worked in a
coordinated manner and relied on each other’s loyalties in carrying it out].)
               Moreover, Marshall testified that when gang members commit a crime that
results in monetary gain, the proceeds from the offense are often used to buy guns, drugs,
and party supplies for the gang. The money is used toward expenses involved in
committing future gang crimes and recruiting new gang members. So, it’s not just the
individual gang members who benefit from the crimes they commit, but the gang as a
whole. Considering the circumstances surrounding the Truax burglary and Marshall’s
expert testimony on the workings of appellant’s gang, the jury could reasonably find the
burglary was gang related. There is substantial evidence to support the jury’s finding in
that regard.
                                             IV
               Appellant also contends there is insufficient evidence to support his
convictions because Truax had difficulty identifying him at trial, and the circumstantial
evidence implicating him in the burglary was weak. He argues his convictions were
essentially based on nothing more than innuendo and guilt by association, but we find
substantial evidence to support the jury’s verdict.
               As we have noted, the standard of review for assessing the sufficiency of
evidence to support a criminal conviction is highly deferential. That is true even when,
as here, the main issue at trial was identification. Indeed, “‘[t]he strength or weakness of
the identification [evidence], the incompatibility of and discrepancies in the testimony, if
there were any, the uncertainty of recollection, and the qualification of identity and lack
of positiveness in testimony are matters which go to the weight of the evidence and the

                                             12
credibility of the witnesses, and are for the observation and consideration, and directed
solely to the attention of the jury in the first instance . . . .’ [Citation.]” (People v.
Mohamed (2011) 201 Cal.App.4th 515, 522.) On appeal, we cannot overturn a
conviction simply because there are conflicts in the identification evidence or some of the
testimony is subject to justifiable suspicion. (People v. Elliott, supra, 53 Cal.4th at p.
585.) Instead, we can only “‘set aside a jury’s finding of guilt [if] the evidence of
identity [is] so weak as to constitute practically no evidence at all.’ [Citations.]” (People
v. Mohamed, supra, 201 Cal.App.4th at p. 521.)
               That is clearly not the situation in this case. Truax testified he got a pretty
good look at the second burglar’s face when he ran past him in the driveway, noticing
also that he was a young black man with a medium build and cornrows. Although the
encounter was brief, Truax was able to identify appellant as that burglar when he was
shown a photographic lineup a month later. And that was not simply because appellant’s
photo depicted him wearing cornrows. Rather, Truax based his identification on a variety
of factors, including not only his hair, but his age, face and body type, as well.
               Truax did have some difficulty identifying appellant by the time the case
got to trial three years later. At the preliminary hearing, he was unable to identify
appellant, and at trial, he initially identified appellant as the first burglar he encountered
and Tisby as the second. However, the law does not require a prior out-of-court
identification to be corroborated by an in-court identification. (People v. Cuevas (1995)
12 Cal.4th 252.) In any event, there was evidence appellant and Tisby had changed their
appearances from the time of the burglary until the time of trial. Not only had their
weights changed, but at trial appellant was wearing his hair straight, and Tisby was
sporting cornrows, which is the opposite of how they wore their hair at the time of the
burglary. Under those circumstances, it is not surprising Truax had difficulty identifying
them at first. However, as his testimony wore on, he ultimately identified appellant as the



                                               13
second burglar, which was consistent with his pretrial identification. The identification
evidence was not overwhelming, but it was solid enough to withstand appellate scrutiny.
                  In addition, there was considerable circumstantial evidence connecting
appellant to the burglary. A week after the crime, the police stopped appellant while he
was driving a car that had been rented by Erica Jones, who was the girlfriend of
appellant’s brother Rodney. As it happened, Jones was the one who had rented the car
that was used in the Truax robbery. It also turned out that Tisby was present with
appellant during the stop. This is significant because Truax identified Tisby as the person
he encountered inside his house during the burglary. Appellant was also implicated in a
similar burglary that occurred three months later, and to top it off, both he and Tisby were
members of a gang that specialized in the type of daytime burglaries at issue in this case.
Standing alone, this evidence did not conclusively establish appellant committed the
Truax burglary. However, considering it along with the identification evidence, the jury
could reasonably conclude appellant was guilty of that offense. Because there is
substantial evidence to support the jury’s finding in that regard, we are powerless to
disturb it.3
                                                              V
                  Lastly, appellant asserts the trial court erred in sentencing him to 10 years
on the gang enhancement. He contends the sentence should be reduced to five years
because the prosecution did not plead the requirements for the greater punishment. We
agree.
                  Sentencing on the gang enhancement is dependent on the nature of the
underlying offense. If the crime is a simple felony, the punishment is two, three or four

           3        Appellant contends that, even if he was the man who ran past Truax in his driveway, there is
insufficient evidence he was guilty of burglary because he did not enter Truax’s residence or aid and abet Tisby in
doing so. Appellant raised this issue in supplemental briefing that we requested on an unrelated sentencing issue, so
it is not properly before us. In any event, Truax testified he saw appellant run from his house just before he passed
him in the driveway, and it is clear from the circumstances of the burglary appellant and Tisby were working in
cahoots. Therefore, appellant’s claim fails on its merits, as well.


                                                         14
years in prison. (§ 186.22, subd. (b)(1)(A).) If the crime is a serious felony, the
punishment is five years. (Id., at subd. (b)(1)(B).) And if the crime “is a violent felony,
as defined in subdivision (c) of Section 667.5, the person shall be punished by an
additional term of 10 years.” (Id., at subd. (b)(1)(C).)
              The list of violent felonies in section 667.5, subdivision (c) includes “[a]ny
burglary of the first degree, as defined in subdivision (a) of Section 460, wherein it is
charged and proved that another person, other than an accomplice, was present in the
residence during the commission of the burglary.” (§ 667.5, subd. (c)(21), italics added.)
Appellant argues that, although he was convicted of first degree burglary, which is a
serious felony, the crime was not a violent felony for sentencing purposes because the
information did not allege another person other than an accomplice was present during its
commission.
              The information alleged, “On or about August 11, 2009, in violation of
Sections 459-460(a) of the Penal Code (FIRST DEGREE RESIDENTIAL
BURGLARY), a FELONY, FRANK GEORGE TISBY and ROGER NEAL
SHACKLEFORD did unlawfully enter an inhabited dwelling house, trailer coach, and
inhabited portion of a building, inhabited by Truax, with the intent to commit larceny.”
              The Attorney General claims that, reasonably understood, this language —
particularly the phrase “inhabited by Truax”— provided notice the prosecution was
alleging Truax was present during the burglary, so as to elevate the burglary from a
serious to a violent felony for purposes of the gang enhancement. However, regarding
the crime of burglary, “‘inhabited’ means currently being used for dwelling purposes,
whether occupied or not.” (§ 459, italics added.) Thus, alleging Truax “inhabited” the
building appellant burglarized did not necessarily assert Truax was “present” in the
building during the burglary, which is what section 667.5, subdivision (c)(21) requires to
be charged.



                                             15
              That may sound hyper-technical, but the California Supreme Court has
been very strict in terms of interpreting the “pled and proved” requirement of criminal
statutes. For example, in People v. Mancebo (2002) 27 Cal.4th 735 (Mancebo), the court
determined it was improper to use the multiple victim circumstance in the One Strike law
where that circumstance was not specifically alleged in the prosecution’s charging
documents. The substantive counts of the information clearly indicated the defendant
was being charged with victimizing multiple children, the evidence at trial showed as
much, and there was really no way to defend against the multiple victim circumstance
had it been pled. However, the Mancebo court held the One Strike law explicitly requires
all relevant circumstances to be “pled and proved” and “alleged in the accusatory
pleading” before they can be used to increase the defendant’s sentence. (Id. at pp. 741-
742, fn. 4, quoting § 667.61, subds. (f) & (i).) Despite the presence of a factual basis for
the multiple victim circumstance, Mancebo forbade its use against the defendant in that
case because “no factual allegation in the information or pleading in the statutory
language informed [him] that if he was convicted of the underlying charged offenses, the
court would consider his multiple convictions as a basis for One Strike sentencing . . . .”
(Mancebo, supra, 27 Cal.4th at p. 745.)
              Likewise here, appellant was never apprised in the charging documents that
if convicted of the burglary charge, the court would consider Truax’s presence during the
burglary as justification for increasing his sentence on the gang enhancement from five
years to ten years. While the evidence plainly showed Truax was present during the
burglary, the prosecution never notified appellant of the legal significance of this fact.
That undermined appellant’s right to notice of the severity of the charges he was facing.
              In fairness to the prosecutor, it does not appear he was trying to sandbag the
defense by failing to bring up the issue. Rather, it appears he simply believed the
wording of the information was good enough to satisfy due process. However, the
information actually provided appellant with less notice than the information that was

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found lacking in Mancebo. Whereas the information in Mancebo at least provided a
factual basis for the sentence enhancement at issue in that case, here, as explained above,
the information did not even supply that minimal information. More importantly, the
information failed to apprise appellant the prosecution intended to use the nonpleaded
fact of Truax’s presence in the residence to double the enhancement on the gang
allegation from five to ten years.
              The Attorney General correctly notes that in reaching its decision in
Mancebo, the California Supreme Court limited its holding to the One Strike law.
(Mancebo, supra, 27 Cal.4th at p. 745, fn. 5.) However, the court’s analysis was
informed by cases that involved analogous statutes that contain “pled and proved”
requirements, including the statute at issue here, section 667.5. (Mancebo, supra, 27
Cal.4th at pp. 745-746, discussing People v. Haskin (1992) 4 Cal.App.4th 1434.)
              Moreover, Mancebo makes clear that “in addition to the statutory
requirements that enhancement provisions be pleaded and proven, a defendant has a
cognizable due process right to fair notice of the specific enhancement allegations that
will be invoked to increase punishment for his crimes.” (Mancebo, supra, 27 Cal.4th at
p. 747.) If, as here, such notice is not afforded, the resulting sentence is legally
unauthorized and harmless error analysis does not apply. (People v. Hernandez (1988)
46 Cal.3d 194, 208-209, discussed with approval in Mancebo, supra, 27 Cal.4th at pp.
746-747, 749.) Therefore, we reverse appellant’s 10-year sentence on the gang
enhancement and order the imposition of a 5-year sentence in its stead.
              In addition, because appellant was not charged and convicted of a violent
offense, he is not subject to the 15 percent conduct credit limitation set forth in section
2933.1, which the trial court applied in calculating appellant’s presentence credits. The
Attorney General does not dispute this. However, she claims appellant is subject to the
20 percent conduct credit limitation set forth in section 1170.12 because he is a second
strike offender. That section does place a 20 percent cap on the amount of conduct

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credits a defendant can receive if he has previously been convicted of one or more strike
offenses. (§ 1170.12, subd. (a)(5).) But that limitation applies to postsentence conduct
credit, not presentence conduct credit. (People v. Buckhalter (2001) 26 Cal.4th 20, 32.)
As such, appellant is entitled to receive presentence conduct credit at the standard rate of
“two days . . . for each four-day block of time served.” (People v. Kimbell (2008) 168
Cal.App.4th 904, 908.) Under that formula, appellant is entitled to 146 days of
presentence conduct credit, based on his 294 days of actual custody, for a total credit
award of 440 days. We will modify the judgment to reflect this change.
                                      DISPOSITION
               The judgment is reversed with respect to appellant’s 10-year sentence on
the gang enhancement, which is modified to a term of 5 years in prison. In addition,
appellant’s presentence conduct credits are modified from 44 to 146 days, resulting in a
total credit award of 440 days. The clerk of the trial court is directed to prepare an
amended abstract of judgment reflecting these modifications and forward a certified copy
to the Department of Corrections and Rehabilitation. In all other respects, the judgment
is affirmed.



                                                  BEDSWORTH, ACTING P. J.

WE CONCUR:



FYBEL, J.



IKOLA, J.




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