Filed 9/13/16 P. v. Lewis CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F070565
    Plaintiff and Respondent,
                                                                                (Super. Ct. No. 1434688)
    v.

PHILANDER LEWIS,                                                                         OPINION
    Defendant and Appellant.
         APPEAL from a judgment of the Superior Court of Stanislaus County. Nan
Cohan Jacobs, Judge.
         John Steinberg, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and
William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-
                                                INTRODUCTION
         After a 2014 trial, a jury convicted Philander Lewis of two counts of home
invasion robbery in concert, one count of burglary, and two counts of assault, along with
accompanying sentencing enhancements. The jury acquitted him of one count of
attempted murder. Lewis also admitted seven prior prison terms. He was sentenced to
20 years in prison.
       On appeal, Lewis argues that his sentence should be reduced from 20 years to 16
years, four months because (1) there was insufficient evidence to convict him of first
degree robbery of an inhabited dwelling in concert with two or more persons, and (2) the
trial court imposed an unauthorized sentence in its imposition of an arming enhancement.
We find only his second contention meritorious and in turn hold that he is entitled to have
his sentence reduced to 19 years, four months.
                             STATEMENT OF THE CASE
       On April 20, 2012, an information filed in Stanislaus County charged Lewis and
codefendant Robert Belfield with: count I - the attempted murder of Douglas Oliver (Pen.
Code,1 §§ 664, 187, subd. (a)); counts II and III – first degree robbery of an inhabited
dwelling in concert with two or more persons (of Oliver and Carmela Grays) (§§ 212.5,
subd. (a), 213, subd. (a)(1)(A)); count IV - residential burglary (§ 459); and counts V and
VI - assault with a firearm upon Oliver and Grays (§ 245, subd. (a)(2)). The information
further alleged that Lewis was armed with a firearm in counts I through VI (§ 12022,
subd. (a)(1)) and had served seven prior prison terms (§ 667.5, subd. (b)).
       A jury trial began on March 25, 2014. On April 23, 2014, the jury returned
verdicts acquitting Lewis of count I, but convicting him on all remaining counts, and
finding the firearm enhancement true. Lewis admitted the prior prison term
enhancements.
       On November 18, 2014, Lewis was sentenced to a total term of 20 years in prison
as follows: the aggravated term of nine years on count II (§§ 212.5, subd. (a), 213, subd.
(a)(1)(A)), plus one year for the arming enhancement (§ 12022, subd. (a)(1)); two years
(one-third of the middle term) on count III (§§ 212.5, subd. (a), 213, subd. (a)(1)(A)),

1      All further statutory references are to the Penal Code unless stated otherwise.


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plus one year for the arming enhancement (§ 12022, subd. (a)(1)); seven years for the
seven prior prison term enhancements (§ 667.5, subd. (b)). Counts IV, V, and VI were
stayed pursuant to section 654.
       Appellant filed a timely notice of appeal on December 2, 2014.
                               STATEMENT OF FACTS
       Lewis and the victim Oliver were acquaintances. Lewis visited Oliver’s house
about a month before the charged crimes and saw Oliver’s medical marijuana growing
operation. On July 20, 2011, at about 12:45 a.m., Oliver and Grays, who was eight and a
half months pregnant, were in their living room. Oliver was asleep on the couch and
Grays was using a laptop computer when Oliver was awakened by a loud knocking on
the front door. Oliver went to the door, looked through the peephole, and saw a woman
standing outside. He opened the door and two men wearing ski masks forced their way
inside. One of the men was holding a handgun.
       The man with the gun entered the house and pointed the gun at Oliver’s face. The
gunman then walked toward Grays and pointed the gun at her and ordered her to turn
around and get on the ground. The other man tried to close the front door, but Oliver put
his hands in the doorway and fought to keep the door open. Oliver and this man began
scuffling. Oliver testified he began yelling to his neighbors for help.
       The man with the gun struck Oliver from behind in the back of the head multiple
times during the scuffle, causing injuries that would later require Oliver to receive about
28 staples in his head at the hospital. The man he was scuffling with then said, “Shoot
him.” Oliver was then shot in the back by the man with the gun. Grays called 911 and
later discovered that her laptop computer was missing.
       A California Highway Patrol officer in the area received a radio broadcast of the
shooting. He then observed a white Ford Taurus stopped at a red light, coming from the
direction where the shooting had occurred. The officer testified that the Ford was the
only car on the road at the time. The car accelerated rapidly once the light turned green

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and the officer then began to follow it until it made an abrupt stop, at which point the
officer activated his emergency lights. All three occupants of the Ford, later identified as
Lewis, Belfield, and Jasmine Hampton, then exited the Ford and fled on foot. Belfield
was chased by officers and arrested, and a handgun was recovered nearby. Police
searched the Ford and found Grays’s laptop and a ski mask, and a second ski mask was
found outside the car. Following an investigation, officers found and arrested Lewis and
Hampton.
       Lewis did not testify at trial, but Belfield did. In the course of his testimony,
Belfield admitted he and Lewis planned to steal marijuana from Oliver’s house and that
they knew that Oliver would be home. Belfield also admitted he and Lewis procured ski
masks and zip ties for purposes of the robbery and that Belfield was armed with a loaded
gun. After parking the car in an alley, Hampton was instructed by Lewis and Belfield to
knock on Oliver’s door. Belfield testified that after Hampton knocked on the door and
the porch light came on, Hampton looked at Belfield and nodded her head and then she
turned around and walked away. Belfield further testified he and Lewis went into the
house when the door opened and that Belfield was the gunman. Belfield said he did not
go into detail about the robbery plan with Hampton, and he adopted the prosecutor’s
suggestion that Hampton did not really know what was going on because the robbery
plan was figured out before Hampton was picked up by Lewis and Belfield.
       Pursuant to a plea agreement, Hampton testified for the prosecution. She testified
that she did not find it unusual that she was asked to go knock on the door since there had
been previous times where someone in the car will get out and to go knock on the door of
a person who they were picking up for a ride. She further testified Lewis and Belfield
both got out of the car with her after they parked the car in the alley. However, she did
not see Lewis or Belfield follow her to the door, and it was not until after she knocked on
the door and Oliver turned the porch light on that she finally saw Lewis and Belfield
come up behind her with ski masks on. She further testified she was surprised upon

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seeing Lewis and Belfield come up behind her with ski masks on and that she thought to
herself, “What’s going on?” She said she left the front door and went back to the car
because that is what she was instructed to do.
                                       DISCUSSION

   I. THERE WAS SUFFICIENT EVIDENCE THAT APPELLANT COMMITTED
        THE ROBBERY OF AN INHABITED DWELLING HOUSE IN CONCERT
        WITH TWO OR MORE OTHER PERSONS
   Lewis does not contest that he is guilty of first degree robbery. However, he argues
that he is not guilty of acting in concert with two or more persons to commit first degree
robbery of an inhabited dwelling within meaning of section 213, subdivision (a)(1)(A).
A conviction under section 213, subdivision (a)(1)(A), triggers an aggravated sentence.
Lewis contends there is insufficient evidence to prove that he acted in concert with two or
more people during the home invasion robbery because he acted in concert only with
Belfield and not with Hampton. The necessary premise of his contention is that although
Hampton was an aider and abettor, Hampton’s conduct as an aider and abettor is
insufficient to support a finding that she acted in concert with Lewis and Belfield. While
Lewis is correct that aiding and abetting does not necessarily constitute acting in concert
in every case, we hold that there was sufficient substantial evidence that Hampton’s
conduct as an aider and abettor rose to the level of acting in concert. We therefore reject
Lewis’s contention on this issue and hold that the three of them – Lewis, Belfield, and
Hampton – all acted in concert during the home invasion robbery.
       A. Standard of Review
       On appeal, when assessing the sufficiency of the evidence, we “review the entire
record in the light most favorable to the judgment to determine whether it discloses
evidence that is reasonable, credible, and of solid value such that a reasonable trier of fact
could find the defendant guilty beyond a reasonable doubt.” (People v. Bolin (1998) 18
Cal.4th 297, 331.) It is not necessary for us to be convinced beyond a reasonable doubt


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of the defendant’s guilt; rather, we simply must be satisfied that “any rational trier of fact
could have found the essential elements of the crime beyond a reasonable doubt.”
(People v. Johnson (1980) 26 Cal.3d 557, 576.) “We may not reverse a conviction for
insufficiency of the evidence unless it appears that upon no hypothesis [whatsoever] is
there sufficient substantial evidence to support the conviction.” (People v. Tripp (2007)
151 Cal.App.4th 951, 955.)
       B. Applicable law and analysis
       Section 213, subdivision (a)(1)(A) reads: “If the defendant, voluntarily acting in
concert with two or more other persons, commits [a] robbery within an inhabited
dwelling house, … [he or she shall be punished] by imprisonment in the state prison for
three, six, or nine years.” An important question is whether or not aiding and abetting
always constitutes acting in concert for purposes of this statute. Section 213 does not
provide any further clarification or definition of the term “acting in concert,” nor do we
find any such further direction in the legislative history of the statute.
       At Lewis’s trial, the trial court charged the jury with CALCRIM No. 1601, which
is the recommended juror instruction for an alleged violation of section 213. CALCRIM
No. 1601 instructs that to convict under section 213, subdivision (a)(1)(A) the
prosecution must prove that: “1. The defendant personally committed or aided and
abetted a robbery; [¶] 2. When he did so, the defendant voluntarily acted with two or
more other people who also committed or aided and abetted the commission of the
robbery; [¶] AND [¶] 3. The robbery was committed in an inhabited dwelling.” (Italics
added.) It appears from the wording of CALCRIM No. 1601 that aiding and abetting
always constitutes acting in concert. But of course, CALCRIM instructions are not
binding authority. Moreover, the sexual assault cases People v. Wheeler (1977) 71
Cal.App.3d 902 (Wheeler) and People v. Lopez (1981) 116 Cal.App.3d 882 (Lopez)
clearly explain the precedent that aiding and abetting does not necessarily constitute



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acting in concert in every case. Because these cases are binding authority and
CALCRIM instructions are not, their holdings must be applied.
       In Wheeler, the court held that “[a]iding and abetting need not in every case be
synonymous with ‘acting in concert.’” (Wheeler, supra, 71 Cal.App.3d at p. 906.)
Additionally, the Lopez court held that:

       “[I]t is difficult to conceive of a factual situation in which mere aiding and
       abetting would not constitute acting in concert.... However, because of the
       possibility that some particular factual situation may arise in the future, we
       decline to make any blanket ruling that all aiding and abetting necessarily
       constitutes acting in concert. Such blanket pronouncements have an
       uncomfortable faculty of coming back and haunting the author of the
       opinion. We simply address ourselves to the facts in this case and hold
       specifically that there is no requirement that the defendant either participate
       in or be personally present during the act for the purposes of acting in
       concert.” (Lopez, supra, 116 Cal.App.3d at pp. 887-888, italics added.)
By choosing to use the word “particular,” we take it that the Lopez court was saying that
there may be only a small number of distinct and discrete factual scenarios in which we
should decline to hold that an aider and abettor did not act in concert. For the factual
reasons discussed below, we hold that Lewis’s case is not one of those “particular”
factual scenarios the learned justices in Lopez had in mind.
       Merriam Webster simply defines “in concert” as “together.” (Merriam-Webster
Online Dict. http://www.merriam-webster.com/dictionary/in%20concert [as of Sept. 1,
2016].) By Lewis claiming that Hampton did not act in concert with Lewis and Belfield
in the home invasion robbery, he effectively is claiming that Hampton did not act
together with Belfield and Lewis. Specifically, Lewis contends that Hampton’s knocking
on the door and subsequent withdrawal is insufficient evidence to hold that she acted
together with Lewis and Belfield in committing the home invasion. We disagree.
Hampton’s act of knocking on the door is what set this whole ordeal into motion. It was
12:45 a.m., and therefore very unlikely that Oliver would have opened the door for a man
at that hour. We are satisfied that a rational trier of fact could find that the home invasion


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would not have happened without Oliver opening the door, and that Lewis, Belfield, and
Hampton all knew that their chances of getting Oliver to open the door would be
significantly increased if Hampton went by herself to the door and knocked. In short,
Hampton’s act of knocking on the door was such an integral part of the robbery scheme
that it would be irrational to hold that Hampton was an aider and abettor who did not act
together with Lewis and Belfield. Although we are unable to give an example of how a
person can be an aider and abettor without acting in concert, we are certain that this case
is no such example.

   II. THE TRIAL COURT ERRED BY IMPOSING A ONE-YEAR TERM FOR THE
         ARMING ENHANCEMENT IN COUNT THREE INSTEAD OF ONE-
         THIRD OF THE TERM FOR THE ENHANCEMENT AS PART OF THE
         SUBORDINATE, CONSECUTIVE TERM FOR ROBBERY
       Lewis argues that the trial court imposed an unauthorized sentence by its
imposition of a one-year arming enhancement in count III pursuant to section 12022,
subdivision (a)(1) and that the correct sentence for that particular enhancement should
have been four months. Respondent agrees as do we.
       Lewis’s trial counsel’s failure to object does not operate as a waiver of this issue
on appeal, since unauthorized sentences are reviewable, “regardless of whether an
objection or argument was raised in the trial and/or reviewing court.” (People v. Welch
(1993) 5 Cal.4th 228, 235.) Lewis also cites the ruling in People v. Smith (2001) 24
Cal.4th 849, 852 that an unauthorized sentence involving pure questions of law is
reviewable at any time.
       Section 1170.1, subdivision (a), provides in relevant part:

       “[W]hen any person is convicted of two or more felonies, … the aggregate
       term of imprisonment for all these convictions shall be the sum of the
       principal term, the subordinate term, and any additional term imposed for
       applicable enhancements for prior convictions, prior prison terms, and
       Section 12022.1. The principal term shall consist of the greatest term of
       imprisonment imposed by the court for any of the crimes, including any
       term imposed for applicable specific enhancements. The subordinate term


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       for each consecutive offense shall consist of one-third of the middle term of
       imprisonment prescribed for each other felony conviction for which a
       consecutive term of imprisonment is imposed, and shall include one-third
       of the term imposed for any specific enhancements applicable to those
       subordinate offenses….” (Italics added.)
Count III is a subordinate offense. Therefore, the term imposed for any specific
enhancement to count III should be one-third of what the term would ordinarily be.
Specifically, section 12022, subdivision (a)(1) is the applicable enhancement to count III,
which carries an enhancement of one year. Therefore, the term imposed for the arming
enhancement in count III should have been four months, not one year.
                                     DISPOSITION
       The judgment of conviction under Penal Code section 213, subdivision (a)(1)(A),
is affirmed, but the Penal Code section 12022, subdivision (a)(1), sentencing
enhancement under count III is reduced from one year to four months. Therefore,
Lewis’s imposed term of imprisonment should be reduced from 20 years to 19 years, four
months. The trial court is ordered to prepare an amended abstract of judgment reflecting
this modification and send a certified copy to the California Department of Corrections
and Rehabilitation.

                                                                _____________________
                                                                          FRANSON, J.
WE CONCUR:


 _____________________
HILL, P.J.


 _____________________
SMITH, J.




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