Filed 8/29/16 P. v. Hennes CA2/7 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

THE PEOPLE,
Plaintiff and Respondent,

v.

DAVSHAWN L ARAY HENNES,
Defendant and Appellant. B264125
(Los Angeles County Super. Ct. No. YA088396)

APPEAL from an order of the Superior Court of Los Angeles County, Chet L

. Taylor , Judge. Affirmed in part; remanded with instructions

. St even A. Brody , under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Steven E. Mercer and
Marc A. Kohm , Deputy Attorneys General, for Plaintiff and Respondent.

__________________________2

Davshawn Laray Hennes appeals from the judgment entered following his conviction by a jury of two counts of residential burglary and one count of attempted
resident ial burglary . Hennes contends there was insufficient evidence to convict him of one of the burglary counts and the court abused its discretion in sentencing him as a third
strike offender

. We affirm the convictions and the court’s decision to deny in par t Hennes’s motion to dismiss his prior strike convictions but remand the matter to permit the trial court to correct sentencing errors

.

FACTUAL AND PROCEDURAL BACKGROUND
1. The Information On January 2, 2014 Hennes was charged by information with two co unts of residential burglary (Pen. Code, § 459) 1 and one count of attempted residential burglary (§§ 459, 664). It was specially alleged as to counts 1 and 3 a person other than an accomplice was present when the burglary offenses were committed (§ 667.5,
subd. (c)(21)) and as to all three counts that Hennes had suffered two prior serious felony
convictions within the meaning of both section 667, subdivision (a), and the three strikes law (§§ 667, subds. (b)

- (i), 1170.12) and had served one prior prison te rm for a felony (§ 667.5, subd. (b )).
2. The Trial

a. The People’s evidence
i. The September 10, 2013 burglary ( count 1 )
Alessandra Amado arrived home from school with her mother around 12:20 p.m. on September 10, 2013. As Amado walked into the house
, she heard men ’s voices coming from her mother’s room. Amado went outside and told her mother. Amado went
back into the house to check on her small dog. She saw two men jump out the window,
and it sounded to her like one of them was talking on a c ell phone. Amado’s mother ran
after the men. Amado testified her mother’s room had been “trashed.”

1 Sta tutory references are to this code unless otherwise stated

.3

James Ullner was driving near Amado’s home when he saw two men wearing white gloves running from a house. As Ullner backed into a driveway to turn aroun d and follow them, a woman came running from the same direction and told him, “They robbed me.” Ullner, following the men in his car, saw a black SUV ahead of them. He thought
the SUV might be the get

- away car so he sped forward, pulled up behind it and began repeating the license plate number. The SUV drove away quickl y after one of the men got in ; Ullner did not see what happened to the other man. Ullner stopped following the
SUV after it ran a stop sign. Ullner was only able to provide a general des cription of the

men who had been running; he did not see the driver of the SUV . It was stipulated the SUV was a black Infiniti registered to Hennes.
Ju r g u en Chavez testified he was in his car when he saw two men running from Amado’s house followed by a woman running down the driveway. Chavez pulled up and asked the woman if she was okay. She frantically said, “No. I’ve been robbed.” Chavez
drove off and was able to locate one of the men, who was talking on a cell phone.
Chavez rolled down his window and heard the man, upset, say, “Why did you f’en leave
me? You can’t fucki n ’ do this to me.” The man, who had a cross tattooed on his face, saw Chavez and began walking down the street. Chavez followed until the man got into
the back of a black SUV tha t had arr ived. At trial Chavez identified the driver , who m he
saw with a “very quick glance ,” as Hennes. 2 He also i dentified the two men. O ne of them, Antoine Pressley, is Henne s’s brother. The man with the cross tattoo is David
Woods.

2 Chavez testified at the preliminary hearing that Hennes was one of the men he had seen running. At trial he explained he knew he had made a mistake as soon as he had said it but was too nervou s to correct the error. After the hearing Chavez told the prosecutor and the detective about the mistake, but he did not tell the defense attorney.4 ii. The Septemb er 12, 2013 attempted burglary (count 2) and burglary ( count 3) Courtney Jones tes tified she lives next door to 1529 W. 95th Street in
Los Angeles. On September 12, 2013 Jones’s housemate told her someone was trying to get into her neighbor’s backyard. Jone s looked out the window and saw one man putting on dark gloves while another man was trying to slide open a window . After the men saw her, they left the backyard and got into a car she believed was an Infiniti . Although she did not see the car, she s aid she had recognized its sound , explaining, “I know a lot of people that have an Infiniti

. ” Amie Loper, the resident at 1529 W. 95th Street , provided pol ice with video surveillance show ing two men walking up her driveway and attempting to enter through a window. Los Angeles County Sheriff’s Detective Marc King testified he was assigned in September 2013 to the Department’s burglary

- robbery task force, formed because of an epidemic of “knock

- knock residential burglaries ”

— burglaries committed by a “crew ” of two or more people who knock on the door of a home and, if no one answers , break into
it

. King described the driver of the car as the “quarterback” who selects the house, plans
the escape routes, monitors a police scanner during the burglary and comm unicates with
his confederates breaking into the home on a cell phone or walkie

- talkie. On September 12, 2013 King was working on a surveillance team following
Hennes’s car because the license plate number had been identified in connection with the
Amado burglary two days earlier. King observed Hennes driving suspiciously

— repeatedly pulling over to the curb or into a driveway on several streets. At approximately 10:30 a.m. the car parked several houses away from 1529 W. 95th Street
and two men

— Pressley and Terrence Bailey

— got out of the car and went into the backyard of 1529 W. 95th Street. Neither King nor other members of the surveillance team could see what they were doing. A few minutes later the men left the property and were picked up by Hennes

. King and another detective went into the backyard to determine if a crime had been committed. Although there were no signs the men had5

successfully entered the home , King opined Lopez’s surveillance video depicted an attempted burglary.
After the men l eft 1529 W. 95th Street , Hennes’s vehicle was watched from a surveillance helicopter assigned to the team. Deputy Dennis Harralson testified the helicopter followed the vehicle to the Jordan Downs housing project. From the helicopter
Harralson saw three men get out of Hennes’s car and transfer various items to a Mercedes, later determined to b elong to Bailey. The men then drove away in the
Mercedes with the driver of Hennes’s vehicle now driving the Mercedes. The Mercedes stopped at a pizza restaurant n ear 111th Place in Inglewood . A man got out of the car
and walked a few blocks to a house at 3200 111th Place . After standing on the porch for a few minutes, he returned to the Mercedes . Shortly thereafter two men got out of the car
and entered the hous e at 3200 111th Place through the back door . They were in the house
a few minutes when a car drove down the driveway and two women got out. The men left through the front door, walk ed down the street and entered the Mercedes

. The car stopped a few minut es later. The front passenger door opened and someone leaned out, making a tossing motion toward the curb storm drain. A tablet computer was later found by officers in the storm drain. Erika Ayala, who lived at 3200 111th Place , testified h er house had been ransacked and the tablet computer recovered by the police belonged to
her son. While Detective King was interviewing Ayala, other members of the surveillance team and uniformed officers stopped the Mercedes. Detective Anthony Valenzuela
testified he was in the second or third car behind the patrol car that initiated the stop and had seen Hennes driving the car. When the car was stopped, Henne s was still in the driver’s seat ; and Pressley was in the right rear passenger seat. Valenzuela searched the
car and found two cell phones, a radio scanner set to the frequency used by the Inglewood Police Department, a window punch, two pairs of gloves and a screwdriver. Detective King testified a cell phone w as also recovered from Hennes. It had two

tex t messages received on September 11, 2013, the day after the burglary of the Amado home, from Woods (the man with the cross tattoo on his face) . One message said, “You6

didn’t even pick me up this morning like you said you was, cuz. After you damned near left me yesterday, cuz, I see what type of .

. . nigga you is, you.” A subsequent message from Woods said, “Only worried about your brother

. . . .” Based on the text messages, King concluded Woods was the man who had been left behind after the Amado bur glary. Ray Clark, a custodian of records for Sprint , testified a call was made from Hennes’s cell phone on September 10, 2013 approximately two miles from the Amado burglary. On September 12, 2013 calls were made from Hennes’s phone within two
miles of the attempted burglary at 1529 W. 95th Street and the burglary at
3200 W. 111th Place.

b. The defense’s evidence
Hennes testified he was convicted of robbery in 2003 and burglary in 2005

. On September 10, 2013 he went to his aunt’s house around 5:00 a.m. He placed his car keys
and cell phone on the dresser in a room he shared with Pressley and went to sleep. His phone and keys were missing when he woke up around 1:00 p.m. Pressl e y, whose own phone had been disconnected for failure to pay the bill, retu r ned the items later that day. On September 12, 2013 Hennes ran into Pressley and Bailey at the Jordan Downs housing project. Hennes got into the back seat of Bailey’s car so the three of them could get something to eat after Bailey first stopped at his house. However, Hennes, who had been drinking the night before, fell asleep shortly after they left the housing project. The next thing Hennes remembered was being pulled over by the police

. The men were ordered out of the car, and Bailey got out f irst. Pressley slid over and got out on the driver’s side as well. Hennes then climbed into the front seat and got out the same door

. Hennes never saw the scanner, gloves or window punch found in the Mercedes and did not know that Bailey and Pressley ha d intended to burglarize a house. Hennes also denied sending the text messages on his phone , contending Pressley had it at the time they were made . Hennes could not identify the men from the video surveillance footage
taken at 1529 W. 95th Street. Henne s also denied ever driving Bailey’s car.7

Lynette Brown, Hennes’s and Pressley’s aunt, testified Hennes came to her house
the morning of September 10, 2013 and went to sleep. She did not remember seeing Pressley at her house that day

. 3. The Jury’s Ve rdict; the Motion To Strike Hennes’s Prior Serious Felony Convictions ; Sentencing The jury found Hennes guilty of all three offenses and found true one of the two special allegations that a person other than an accomplice was present during the
commission of the offenses (count 1)

. In a bifurcated bench trial the court found true the special allegations as to
Hennes’s prior serious felony convictions for residential burglary (2005) and robbery (2002)

. Hennes moved to dismiss one or both of his prior str ikes in furtherance of justice pursuant to People v. Superior Court ( Romero ) (1996) 13 Cal.4th 497, 529

- 530 , contending he had never been convicted of physically harming another person, was able to maintain steady employment for several years after his inc arceration and had the support of family and friends
, who characterized him as “a tender young man who is always willing to help when they need it,” and strongly believe d he would turn hi s life around if given a chance

. T he court sentenced Hennes , who co uld have received a total sentence of 105 years to life, to an indeterminate , aggregate state prison term of 45 years four months to
life: on count one, 25 years to life, plus two consecutive five

- year terms for the prior
serious felony enhancements (§ 667 , subd. (a) (1) ), plus one year for the prior prison term (§ 667.5, subd. (b)); as to count three
, a consecutive term of four years, doubled to eight years for the strike ; as to count two, a consecutive term of eight months (one

- third the middle term)
, doub led to 16 months for the strike

. As to counts 2 and 3 only, the court
exercised its discretion to dismiss one of the strike priors and sen tence Hennes as a
second strike offender

. In declining to grant the Romero motion with respect to count 1,
the court explained Hennes was the mastermind of the offenses and had brought his younger brother into the criminal enterprise.8

After the court ruled on Hennes’s Romero motion, the prosecutor commented, “My understanding is, if the court does strike a strike as to counts two and three, that the
five

- year priors are still imposed.” The court responded, “Right. But I’m only imposing
the five

- year priors

— I could do that, but I’m not going to do that. I’m imposing both
five

- year priors as to count one only pursuant t o 667(a). I’m imposing the one

- year prison prior under 667.5. I think 45 years and four months is more than enough time for Mr. Hennes to serve. Although one can reasonably argue that he deserves the maximum in this particular case.”
DISCUSSION
1. S ubstantial Evidence Supports the Count 1 Burglary Conviction

a. Standard of review In considering a claim of insufficien t evidence in a criminal case, “ we review the
wh ole record to determine whether any rational trier of fact could have found the

ess ential elements of the crime or special circumstances beyond a reasonable doubt. [Citation.] The record must disclose substantial evidence to support the verdict

— i.e., 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. [Citation.] In applying this test, we review the evidence in the light most favorable to the prosecution and presume in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence. [Citation.] ‘ Conflicts and even testimony [that] is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credib ility of a witness and the truth or falsity of the facts upon which a determination depends. [Citation.] We resolve neither credibility issues nor evidentiary conflicts; we look for substantial
evidence

. [Citation.] ’ [Citation.] A reversal for insuffi cient evidence ‘ is unwarranted unless it appears “ that upon no hypothesis whatever is there sufficient substantial
evidence to support ”’ the jury’ s verdict

. ” ( People v. Zamudio (2008) 43 Cal.4th 327,
357 ; accord, People v. Manibusan (2013) 58 Cal.4th 40, 87 .)9 b. Governing law The crime of burglary is committed when a person “enters any

. . . building,” including a “house,” “with intent to commit

. . . larceny or any felony.” (§ 459.) An aider and abettor may be liable for burglary “ if he or she, wi th knowledge of the perpetrator’ s unlawful purpose, forms the intent to commit, encourage or facilitate
commission of the offense at an y time prior to the perpetrator’ s final departure from the

structure. ” ( People v. Montoya (1994) 7 Cal.4th 1027, 1 046; see generally People v.
Miranda (2011) 192 Cal.App.4th 398, 407 [ “[a] ider

- abettor liability exists when a person who does not directly commit a crime assists the direct perpetrator by aid or encouragement, wi th knowledge of the perpetrator’ s criminal intent a nd with the intent to help him carry out the offense”].) “‘ [W]hile mere presence at the scene of an offense is not sufficient in itself to sustain a conviction, it is a circumstance which will tend to support a finding that an accused was a principal. [C itations.] ’ [Citation.]

‘“ [C]ompanionship, and conduct before and after the offense”’ are also relevant to determining whether a defendant aided and abetted a crime. ” ( Miranda , at p. 407.)

c. Evidence that Hennes aided the burglary at Amado’s home
He nnes concedes there was sufficient evidence to convict him as an aider and
abettor of the attempted burglary and burglary committed on September 12, 2013. He contends, unlike those offenses, there was no police surveillance conducted of him on September 1 0, 2013 and the “bulk of the evidence” linking him to the burglary of Amado’s home was the “tenuous eye

- witness testimony” from Chavez
, who only caught a “very quick glance” at Hennes through the windshield of the car and had erroneously testified at the p reliminary hearing he was one of the men running from th e house. Hennes further argues, even if he was present, that fact did not establish he had the requisite specific intent to aid and abet the burglar y. Substantial evidence supports Hennes’s convict ion for burglary of Amado’s home.
Chavez’s identification of Henn es as the driver of the Infiniti on September 10, 2013 was
sufficient evidence of that fact even if Chavez only saw him briefly . ( See People v.
Richardson ( 2008) 43 Cal.4th 959, 1030

- 1031 [ “the testimony of a single witness is10

sufficient for the proof of any fact”]; People v. Young (2005) 34 Cal.4th 1149, 1181 [“unless the testimony is physically impossible or inherently improbable, testimony of

a single witness is sufficient to support a co nviction”].) It was up to the jury to evaluate Chavez’s explanation of his erroneous preliminary hearing identification and determine
whether his identification at trial was credible. (See People v. Zamudio
, supra , 43 Cal.4th at p. 357 .) In addition, th e parties stipulated the black Infiniti SUV was registered to Hennes; and Detective King testified Hennes denied he had loaned the vehicle or allowed anyone else to drive it during the time frame of the September 10, 2013 burglary. Circumstantial e vidence supporting the jury’s conclusion Hennes was an
aider and abettor of the burglary and not merely present at the scene includes the fact he

was driving the get

- away car , not merely a passenger , and the text messages from Woods to Hennes on September 11, 201 3 complaining Hennes had left him at the crime scene. (See People v. Chinchilla (1997) 52 Cal.App.4th 683 , 690 [ “ There is rarely direct evidence of a defendant’ s intent. Such intent must usually be derived from all the
circumstances of the a ttempt, inclu ding the defendant’ s actions. ”].) Additional evidence supporting the verdict was Hennes’s role as the driver in the September 12, 2013 offenses. (Cf. People v. Gray (2005) 37 Cal.4th 168, 202 [“ ‘ [a] s Evidence Code section 1101, subdivision (b) recognizes
, that a defendant previously committed a similar crime can be circumstantial evidence tending to prove his identity, intent, and motive in the present crime ’ ”].) Hennes’s argument the jury was not permitted to consider this evidence pursuant to CALCRIM N o. 3515 is without merit.
CALCRIM No. 3515 instructed the jury, “Each of the counts charge d in this case is a separate crime. You must consider each count separately and return a separate verdict for each one.” This instruction does not require the jury “to disregard its finding on the facts as regards any count in determining any other count in which those facts are relevant.” ( People v. Beagle (1972) 6 Cal.3d 441, 456.)11

2. The Trial Court Did Not Abuse Its Discretion in Denying Hennes ’s Romero Moti on T o Dismiss the Prior Strike Conviction s as to Count 1 Section 1385, subdivision (a), vests the court with discretion to dismiss a qualifying strike conviction “in furtherance of justice.” ( Romero , supra , 13 Cal.4th at
p. 530; People v. Williams (1998) 17 Cal.4th 148, 158.) “ [I]n ruling whether to strike or vacate a prior serious and/or violent felony conviction allegation or finding under the
Three Strikes law .

. . or in reviewing such a ruling, the court .

. . must consider whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed out side the [three strikes] scheme’ s spirit, in whole or in p art, and hence should be treated as though he had not previously been
convicted of one or more serious and/or violent felonies. ” ( Williams , at p. 161.) We review the trial court’ s decision not to dismiss a prior strike allegation under
section 1385 for a buse of discretion. ( People v. Carmony (2004) 33 Cal.4th 367, 376.)

“ [T]he three strikes law not only establishes a sentencing norm, it carefull y circumscribes the trial court’ s power to depart from this norm and requires the court to explicitly justify
i ts decision to do so. In doing so, the law creates a strong presumption that any sentence that conforms to these sentencing norms is both rational and proper. [¶]

. . . [¶]

. . . ‘ [I]t is not enough to show that reasonable people might disagree about wh ether to strike one

or more ’ prior conviction allegations.

. . . Bec ause the circumstances must be

‘ extraordinary .

. . by which a career criminal can be deemed to fall outside the spirit of the very scheme within which he squarely falls once he commits a strike as part of a long and continuous criminal record, the continuation of wh ich the law was meant to attack’ [citation], the circumstances where no reasonable people could disagree that the criminal falls outside the spirit of the three strikes scheme must be even more extraordinary. ” ( Id

. at p. 378.) Hennes argues the absence of violence in the commission of the current offenses,

t he age of the prior convictions ( between 10 and 13 years old ) , his age at the time of trial (29), the relative s everity o f a two

- strike sentence on count 1 with enhancements12

(22 years) and the support of his family and community place him outside the spirit of the
three strikes law. In sente ncing Hennes as a second strike offender on counts 2 and 3, the

court stated it had considered the letters submitted in support of Hennes’s Romero
motion

. However, given that Hennes returned to crime after already receiving a relatively lenient sentence for his prior offenses; the level of planning and sophistication
of the current offen ses , including the use of a police scanne r; his willingness to commit the offenses on September 12, 2013 after having been thwarted two days earlier ; and the involvement of his younger brother, Hennes did not present the extraordinary situation
under whic h no reasonable person could disagree he fell outside the spirit of the three
strikes law. There was no abuse of discretion.
3. Remand Is Necessary To Correct Sentencing Errors Hennes argues, and the Attorney General agrees, the court erroneously imposed
both the one

- year prior prison term enhancement and the five

- year prior serious felony enhancement based upon the same underlying conviction for burglary . (See People v.
Jones (1993) 5 Cal.4th 1142, 1150, 1153 [only the greater enhancement under § 667,

s ubd

. (a)(1), and § 667.5, subd

. ( b), may be imposed] .) Accordingly, the one

- year enhancement must be struck. However, the trial court made an additional error and imposed an unauthorized sentence on count 3 that must be corrected on remand. (See People v. Smith (2001) 24 Cal.4th 849, 854 [an unauthorized sentence may be corrected at any time whether or not there was an objection in the trial court]; People v. Scott (1994) 9 Cal.4th 331, 354 [“a sentence is generally ‘unauthorized’ where it could not
lawf ully be imposed under any circumstances in the particular case”; in such circumstances “[a]ppellate courts are willing to intervene in the first instance because such error is ‘clear and correctable’ independent of any factual issues presented by the

recor d of sentencing”].) As discussed, after the court granted Hennes’s Romero motion in part as to

counts 2 and 3, dismissing one of the two prior strike allegations, the prosecutor suggested the section 667, subdivision (a)(1), enhancements should still be im posed on both of those counts, as well as count 1. The court responded, “I could do that, but I’m13

not going to do that,” explaining its view that the sentence imposed

— 45 years four
months to life

—

was “ more than enough time for Mr. Hennes to serve. ” The c ourt erred:
It did not have discretion to strike the five

- year, section 667, subdivision (a)(1), prior serious felony enhancements if they were otherwise applicable to Hennes’s determinate term sentences. (§ 1385, subd. (b) [“[t]his section does not auth orize a judge to strike any prior conviction of a serious felony for purposes of enhancement of a sentence under Section 667”]; see People v. Jordan (2006) 141 Cal.App.4th 309, 319 [trial court has no discretion to strike or stay the § 667, subd

. (a)(1), e nhancement]; People v. Askey (1996)
49 Cal.App.4th 381, 389 [same].) But under People v. Sasser (2015) 61 Cal.4th 1, decided the day before Hennes’s sentencing hearing, the prosecutor was also incorrect in urging the court to apply the five

- year prior ser ious felony enhancements to both counts
on whi ch the court had imposed second strike determinate terms. Rather, when a
sentence under the three strikes law includes both indeterminate terms and two or more determinate terms, the section 667, subdivision ( a), enhancements are properly applied to each of the indeterminate terms but “may be added only once to multiple determinate terms imposed as part of a second strike sentence.” ( Id. at p. 7 [trial court imposed five

year prior serious felony enhancements to both of defendant’s indeterm inate terms for rape under the one s tr ike and three s trikes laws but erred in imposing five

- year prior serious felony enhancements on each of his seven determinate terms]; see People v. Misa (2006) 140 Cal.App.4th 837, 840, 8 44

- 847 [trial court properly imposed a prior serious felony enhancement twice, once as to defendant’s indeterminate second strike sentence for torture and again for defendant’s determinate second strike sentence for aggravated assault]; see generally Peopl e v. Williams (2004) 34 Cal.4th 397, 405 [“under the Three Strikes law, section 667(a) enhancements are to be applied individually to each count of a third strike sentence”].) Because the trial court failed to impose the two, mandatory, five

- year prior ser ious felony enhancements to count 3, the sentence is unauthorized. ( People v. Turner (1998)
67 Cal.App.4th 1258, 1259 [failure to impose mandatory enhancement results in an unauthorized sentence].) We remand for the trial court to resentence Hennes

.14 DISPOSITION
The matter is remanded to the trial court with directions to resentence Hennes in accordance with this opinion. In all other respects the judgment is affirmed.

PERLUSS, P. J.

We concur:

SEGAL, J.

GARNETT , J. *

* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.