1

Filed 2/20/24 P. v. Hernandez CA3 NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Yolo)

----

THE PEOPLE,

Plaintiff and Respondent,

v.
JOSEPH KALEIMANU HERNANDEZ et al.,

Defendants and Appellants. C086815 (Super. Ct. No. CRF140072)

In 2013, d efendants Joseph Kaleimanu Hernandez, Joshua Anthony Givens, and
Rakhem Romel Bradford went on a crime spree. Their conspiracy involved burgling residences in Davis, steal ing electronic devices and other property from the residences,
and sell ing the stolen property for mo ney

. They appeal from their convictions of conspiracy to commit burglary, conspiracy to recei ve stolen property, multiple counts of
first

- degree burglary and receiving stolen property, and other crimes.2

Bradford contends insufficient evidence supports his conviction of conspiracy to commit burglary, as no evidence links him to the actual burglaries. Bradford and Givens contend the trial court committed prejudicial error by not instructing the jury to de termine whether there was one or more than one conspiracy.
T hey argue the remedy is to reverse both of their conspiracy convictions, which in turn would require we reverse their burglary convictions that were based on vicarious liability. Alternatively, they claim we should reverse one of their two conspiracy convictions. Hernandez asserts that insufficient evidence supports one of his burglary
convictions. Each of the defendants raise various claims of sentencing error. Hernandez also
contends that his ineligibility for a youth offender parole hearing due to a strike prior violates his rights to equal protection, and that his sentence constitutes cruel and unusual punishment. Finding instructional error, we reverse each defendant’s conviction of conspira cy to receive stolen property, but not their convictions of conspiracy to commit burglary. We also reverse one of Hernandez’s burglary convictions as not supported by substantial
evidence. We otherwise affirm the judgments except to remand for a full res entencing for conformance with current sentencing law s

.



### F ACTS AND 

### H ISTORY OF THE 

### P ROCEEDINGS The burglary spree occurred from July through December of 2013. We set forth the facts of the burglaries that are relevant to the issues raised on appeal.

1. Rela tionship between the defendant s Cell phone and Instagram data indicated that Hernandez and Bradford were associated with one another by late 2012. Givens was associated with the other two by spring of 2013. Beginning in May 2013, Hernandez offered electr onic items for sale by text messages. Bradford posted an image of a MacBook computer for sale on Instagram3

on July 15, 2013. He sold MacBooks and other electronic items on Instagram repeatedly. He also sold MacBook laptops and electronic items on Twitter. After the burglary spree had begun, Hernandez and Bradford exchanged messages about laptops and their sales. On August 21, 2013, Hernandez texted, “I got 15 and 13 inch 2010.” On the same day, Bradford e

- mail ed, “Wat gig is the iPad?” The y exchanged other texts and messages that day about an iPad

. Also t hat day, Bradford posted on Instagram a photo of an iP a d and a MacBook laptop for sale. Hernandez and Bradford exchanged e

- mail s and texts regarding sales between
October 29 and November 1, 2013. Among them was an e

- mail on October 31, 2013, where Bradford asked Hernandez, “You unlocked all the Macs.” The next day, Bradford

e

- mail ed Hernandez, “You gave Q 50.” Hernandez replied to Bradford by text: “I gave you the pad and you getting 50 cuz I was supposed to get 9. And what about the 8 tomorrow how we finna get that? Bro fuckin call me.”

2. Esther Kwon Nahy u n (Esther) Kwon started school at UC Davis in September of 2011. She met Hernandez in September 2013, and they quickly became friends. Hernandez did not have

a car. Kwan had a red Hyundai Sonata. Hernandez asked Kwon for rides “all the time.” If they went together and out of town , he would drive. Around town, she would drive. On one trip, they picked up Bradford at his mother’s house in Pinole. Kwon became “so in love ” with Hernandez that she “would do anything for him.” Hernandez, however, was also dating Summer O

. He had r elationships with other

women during this time period

. 3. Count 5: 831 Anderson Road
Rui C

. lived at 831 Anderson. On July 11, 2013, Rui left home for a class at 7:30

a.m. Her silver 13

- inc h MacBook Pro laptop was on a counter, and her Canon Rebel T2i camera was by her bed. When Rui returned home around 1:30 p.m., her laptop , her4

camera , and the camera’s strap were missing, as was her roommate’s watch. The sliding glass door was unlocked. Rui reported the theft to the police. Jim Cook, the prosecution’s expert witness on wireless technology, testified that at approximately 10:35 a.m. on July 11, 2013, Hernandez’s cell phone migrated toward 831
Anderson. The day after the burglary, pictures of a silver MacBook Pro laptop appeared on Hernandez’s iPhone. Hernandez texted pictures of the laptop from his phone as he tried to exchange it for marijuana.
Rui testified that her MacBook looked exactly like the MacBook depicted on Hernandez’s phone, except that in those photos and unlike her MacBook, the MacBook’s camera was covered by a piece of paper. Rui did not recognize the log

- in page depicted

on the comp uter on Hernandez’s phone. It did not look like the log

- in page that appeared
when she turned on her MacBook. The log

- in page from the computer on Hernandez’s phone appeared when something was stolen and the person use d Find my iPhone or Find my iMac app to locate it. Rui did not have or use such an app. Two weeks later, a photo of a Cannon Rebel T3i camera appeared on Hernandez’s phone. In September 2013, additional photos of the Canon T3i camera with its strap around Hernandez’s neck appeared on Her nandez’s phone. The trial court found there was no evidence and no reasonable inference that the camera Hernandez displayed on his phone was Rui ’s camera stolen from 831 Anderson.

4. Defendants move to 1801 Drexel Drive Hernandez, Givens, and another person rented a home at 1801 Drexel Drive beginning in September 2013. They paid their rent late and always paid in cash. Kwon was frequently at 1801 Drexel, where she met Givens. Other roommates came and went.
Bradford w as not on the lease, but he was at the house about three or four times a week and slept in Givens’s room.5

Hernandez, Givens, and Kwon broke into houses , apartments , and dorms , stole laptops, televisions, video game consoles, watches, and other goods, and brought them to
1801 Drexel. Around 30 TVs went through the house and were sold by the residents,
with nine or 10 once being there at one time. On a number of occasions, Hernandez and Kwon went to the Bay Area to meet up
with someone named Dame or Dane to sell the laptops. Hernandez told Kwon he estimated receiving about $500 for each laptop. Hernandez went by the nickname “Macintosh Manu” because he specialized in stealing and selling MacBooks.
F requently and on random occasions , Hernandez would po int out to Kwon houses he had burgled. He often wore gloves and a black beanie when he burgled a house. Kwon also scouted possible burglary locations on her own, and she pitched some of her
ideas to Hernandez. Breaking into houses was exciting and thril ling to her. She and Hernandez referred to themselves as Bonnie and Clyde.

5. Counts 6, 14, and 43: 1708 Drexel Drive Tyler I

. , Pete P

. , and Michael G

. lived in a house at 1708 Drexel Drive in the
summer and fall of 2013. Tyler ’s girlfriend, Miranda K

. , stayed at the house often. The house’s backyard backed up to Chestnut Park

. One could see into 1708 Drexel’s windows from the park. Defendants’ resid ence at 1801 Drexel was across the street. On August 26, 2013, Tyler had a good friend over for drinks with the roommates. At the end of the night, the friend fell asleep on the living room couch. Tyler locked all of the doors and windows before going to bed. His Samsung television, Xbox video game console, its controllers and games, and his silver 15

- inch MacBook Pro laptop were in the living room. The next morning after waking, Miranda looked into the living room. Tyler ’s friend was gone, but ever ything else was there. After showering, Miranda felt that “something was off.” She looked into the living room and discovered that the TV, the6

game console, and the video games were gone. She woke everyone else up, and they
discovered that Tyler ’s MacBook was also missing. The front door was unlocked. On August 28, 2013, the day after the burglary, Hernandez’s phone received a text message from a contact labeled “My Right Hand” that said, “we need more lappies.” Hernandez responded, “I know D aym, hit me.” On September 1, 2013, Bradford posted
a 15

- inch MacBook Pro for sale on Instagram.
L ater, Givens told Mohamed Husein, a roommate of the defendants at 1801 Drexel, that he and Hernandez had stolen a TV and an Xbox from “across the street” a fter a party. The TV and the Xbox were stored in Hernandez’s room at 1801 Drexel. The house at 1708 Drexel was burgled a second time. On the night of September 28

- 29, 2013, Tyler and Michael came home to find the kitchen window open. Tyler ’s Microsoft Surface tablet was taken, and his gold Nixon wristwatch was missing
from his bedroom. Michael ’s smaller

- sized silver MacBook laptop and Pete ’s Westinghouse television were also missing. On the evening before the second burglary, September 27, Hernandez texted Givens to “Go check the shit across the street. Go look from tech gate at the park

. ” Givens replied, “Ok.” After midnight, Givens texted, “It’s a 2013 in a window that’s open with the screen on. What do you think?” Hernandez replied, “Do it.” That evening, September 28, Hernandez texted to a contact, “Got a TV.” The next day, September 29, Hernandez texted someone about trading or selling a Microsoft tablet or a 13

- inch MacBook Pro , and “2010.” On September 28, 2013, Bradford posted for sale a Microsoft Windows tablet on Instagram. The next day, Bradford posted a 2010 MacBook Pro for sale. Once, Hernandez told Kwon he had “robbed” the “neighbor across the street” both “before” and “after” he m oved into 1801 Drexel. Givens told Husein he had stolen some
watches from the house across the street , including a gold watch

. Hernandez frequently

wore Tyler ’s gold watch. Hernandez also showed Kwon a gold watch. Pictures and a7

video of Tyler ’s watch also appeared on Bradford’s and Givens’s phones between
October and December 2013. When Bradford was arrested in December 2013, the arresting officer removed a gold Nixon watch from Bradford’s wrist.

6

. Counts 8 and 9: 2734 Albany Avenue
Kofi S

. , Andre w C

. , Adam D

. , and Kasey T

. lived in a house at 2734 Albany
Avenue. On September 3, 2013, the four roommates left the house in the morning.
Andrew returned home at approximately 1:00 p.m. He saw two window screens on the ground in the backyard beneath two open windows. Inside the house , he discovered that
his H P laptop and an Xbox console were missing. Kofi discovered that his two MacBook Pro laptops , one white and the other silver, were missing. Prosecution expert Cook testified that Hernandez’s and Givens’s phones were in the vicinity of 2734 Albany between approximately 9:00 a.m. and 1:00 p.m. on September 3. By 1:15 p.m., Hernandez’s phone had moved away from 2734 Albany. Late that same morning, Hernandez texted to a contact that he “got a Mackie[.]”
A lso on September 3, after the burglary had occurred, Bradford advertised a MacBook
Pro on Instagram , along with “iPads on the way

. ” Early the next morning, September 4, a contact asked Hernandez by text, “Can you do 3 and the HP for 12.” Hernandez respo nded, “I’ma come get the white Mackie
now.” Hernandez planned to meet the buyer at a house at 2809 Albany Avenue , five houses away from where the burglary occurred

. Late on September 4, Hernandez and Givens exchanged text messages about money from the sale of “the Mac and the other laptop.” On September 6, Givens tagged Hernandez in an Instagram post of a picture of dozens of $20 and $100 bills. On September 8, Hernandez referenced Brad ford when texting another person about the sale
of MacBooks and iPads.8

2734 Albany was burgled a second time. On September 10, 2013, Kasey returned
home from class and found one of the house’s windows was open. One window screen was on the ground in th e backyard. Inside, Kasey found that $40 in cash and loose change were missing from his bedroom. Kofi ’s Play Station 3 and Xbox 360 video game consoles had been taken from the living room. Adam ’s old MacBook laptop, which
Andrew had borrowed after his l aptop was stolen , was missing from Andrew ’s bedroom. Cook testified that after 1:30 p.m. on September 10, 2013, Hernandez’s and Givens’s phones moved to the vicinity of 2734 Albany. After approximately 2:30 p.m., their phones moved southwest along the route of Interstate 80 and Fairfield. After 5:00
p.m., Givens’s phone was in the Berkeley and Richmond area. After 5:30 p.m., his phone headed in a northerly direction from El Cerrito through Pinole and Hercules. By 9:48 p.m., Givens’s phone was back in the vicinity of 2734 Albany in Davis. On September 12 , two days after the burglary, Bradford advertised a MacBook Pro laptop for sale on Instagram. On a later occasion in downtown Davis, Hernandez “pointed out” Kofi to Kwon

. Hernandez told Kwon he had robbed Kofi ’s house twice
and had taken an “expensive g aming console.”

7. Counts 12 and 13: 727 Anderson Road During the fall of 2013, Kirsten B

. lived at 727 Anderson Road. She owned a
silver MacBook Pro with a mint green case. On the night of September 26, Kirsten left her house to go dancing. Her lapt op and her wallet were on top of her bedroom desk
when she left. She arrived home late and went straight to bed without noticing anything
unusual. The next morning, September 27, she awoke and rushed out the door to get to a
9:00 a.m. class, forgetting to take her laptop. When she arrived home that evening, the screen on her bedroom window was on the ground, but the window was locked. Her laptop and wallet were gone.9

On September 27, 20 13, at 9:11 a.m., Hernandez received a text asking if he had “anymore lappys.” Hernandez replied he did. Cook testified that Givens’s phone was in the vicinity of 727 Anderson shortly before 1:00 a.m. on September 27. After 2:00 a.m., Hernandez’s, Give ns’s, and Kwon’s phones were near each other in downtown Davis. At 1:12 p.m., September 27, Hernandez received a call from Bradford’s phone. At approximately 3:00 p.m., Hernandez’s phone was outside Dixon, while Givens’s phone
remained at 1801 Drexel. Shortly after 4:00 p.m., Hernandez’s and Kwon’s phones were
near El Sobrante and San Pablo. By 5:00 p.m., Kwon’s phone was moving in a northeasterly direction near Interstate 80 and Pinole

. I t returned to Davis by 7:20 p.m. Approximately one month afte r the burglary, pictures of Kirsten ’s MacBook Pro laptop with a mint green case appeared on Bradford’s phone.

8

. Counts 7 and 15: 1727 Pomona Drive In the late summer and fall of 2013, Elizabeth O

. , Austin T

. , and Mary G

. lived in
a house at 1727 Pomona Drive. On the morning of August 30, Elizabeth noticed that her MacBook Pro laptop with a green sticker, her Nexus tablet, and her purse had been stolen from the living room during the night. Austin ’s Samsung television ha d also been taken from the living room. The front door was unlocked when Elizabeth had gone to bed. Cook testified that Hernandez’s phone was in the vicinity of 1727 Pomona from before midnight, August 29, to 12:30 a.m., August 30. Hernandez’s phone wa s in the vicinity of 1727 Pomona also at approximately 2:00 a.m. Givens’s phone began using the cell site nearest 1727 Pomona for a few minutes, beginning at approximately 4:30

a.m. Hernandez’s phone remained near 1727 Pomona through 4:45 a.m.
On September 1, 2013, two days after the burglary, Hernandez, referring to himself as “Macintosh Manu,” offered to sell “like MacBook Pro and an iPad” via text10

messages. On the same day, Bradford advertised a MacBook Pro and an iPad for sale on Instagram. On September 30, 2013, another burglary occurred at 1727 Pomona. Elizabeth had worked a night shift

. She arrived home between 6:30 a.m. and 7:30 a.m., and she
closed and locked the front door before going to bed. When she awoke around 11:30
a.m. or 12:3 0 p.m. , she saw that the door was wide open. Mary came home from class
while Elizabeth was sleeping and found that her silver MacBook Air laptop had been
taken from her bedroom. Austin left the house that morning at approximately 6:00 a.m.
When he retur ned around noon, he found a large kitchen knife he owned lying on the front porch and saw that the door was open. His skateboard had been taken from the living room.
Soon after 6:30 a.m. on September 30, 2013 , Kwon messaged Hernandez that she wanted “to drive around in the morning to see who leaves their house for class.” Shortly after 9:00 a.m., Kwon and Hernandez agreed “to go.” As they were driving around, Hernandez told Kwon to go to “this house,” as he had “hit them before.” When Kwon, Hernandez, and Hernandez’s cousin Pat rick approached the house “during the day,” the front door “was left open.” The three went inside. Kwon took a skateboard from the living room. Patrick grabbed a MacBook Pro. They were in and out of the house in less
than two minutes. Two days after the burglary, Bradford advertised a MacBook Air laptop for sale on Instagram.

9. Count 19: 1660 Drew Circle In the fall quarter of 2013, Kristina G

. and Wenyan L

. lived in an apartment at the Sharps and Flats apartment complex at 1 6 00 Drew Circle. Around 11:00 p.m. on October 10, 2013, the roommates went into downtown Davis. They returned home at approximately 2:00 a.m. the next morning , October 11

. Kristina not iced that all of the11

lights in the apartment were on, but only one light was on when they had left. She also
saw that a window was wide open, and its screen had been ripped off and thrown into
some bushes. Inside the apartment, Kristina discovered that two wallets, a backpack containing a Chromebook laptop, and another laptop all belonging to her were missing. Wenyan discovered that her MacBook Pro, her Nexus tablet, and her backpack containing
schoolbooks and items were gone. Cook opi ned that a few minutes before and after midnight on October 10

- 11 , 2013, Hernandez’s phone could have been in the vicinity of 16 6 0 Drew Circle. Kwon’s phone was likely in the same vicinity at 12:06 a.m. Hernandez’s phone remained in the vicinity of 16 60 Drew Circle at 15 and 20 minutes after midnight and from 1:40 a.m. through 2:05 a.m. Kwon testified that she, Hernandez, and Bradford participated in the burglary at the Sharps and Flats apartments. The three were together when around 2:00 a.m.,
Hernand ez proposed they steal some things. It was Kwon’s idea to go to Sharps & Flats.
Kwon drove them there in her car. Bradford was drunk and asleep in the back seat. Kwon parked the car, and she and Hernandez walked toward a building with an open
window. A man came out of the apartment facing the one with the open window, and he was smoking. Hernandez told Kwon to talk with the man. She and the man talked and
smoke d while Hernandez went back to the car. When Kwon rejoined him, Hernandez told Bradford to get out of the car and stand in the parking lot. Bradford got out of the car and stood in the lot, but then he went back into the car and slept again.
Hernandez and Kwon went back to the apartment with the cracked window. Hernandez wiggled the screen open, opened the rest of the window, and then hopped in and opened the front door for Kwon. Both of them looked for things to grab. Kwon took a laptop and a bag or purse that had lipstick, a wallet, and an ID card inside. Hernandez12

grabbed a dark

- colored backpack. Kwon later saw three laptops inside the backpack. She also threw the purse away. Hernandez later gave the backpack and its laptops to his
father in th e Bay Area.

10. Counts 20, 21, and 22: 502 Oeste Drive and 621 Russell Boulevard During fall quarter of 2013, Ryan P

. lived in a duplex at 502 Oeste Drive.
Keith R. lived in the duplex’s other unit, which was at 621 Russell Boulevard. On October 10, 2 013, Ryan , Keith , and their roommates went out at approximately 9:30 p.m. and returned home at approximately 1:30 a.m. October 11. When they left , Ryan ’s MacBook Pro was on the sofa in his living room, and
Keith ’s laptop was inside a backpack on his living room couch. When Ryan awoke the next morning, it was cold in the house, and he saw that the front door was open. His laptop was missing from the liv ing room. When Keith awoke, he noticed that his front door was open, and a video console’s tray was open with no disk in it. Minutes later, Ryan arrived at Keith ’s and said his laptop had been stolen. Keith looked and discovered his laptop, a backpack, and a video game were missing. Cook opined that Hernandez’s phone moved toward the duplex at 502 Oeste/621 Russell at approximately 2:00 a.m. October 11. It then moved north by 2:20 a.m. Givens’s phone was at his residence at 1801 Drexel until it moved toward the duplex at approximately 2:30 a.m. After 2:30 a.m., Hernandez’s and Givens’s phones were near
each other in downtown Davis. A few minutes later, Givens’s phone returned to near 1801 Drexel, and Hernandez’s phone went further north. Hernandez’ s phone was again in the vicinity of the duplex shortly before 3:30 a.m. In the evening of October 11 after the burglary, Hernandez’s phone received a text asking to let the texter know “if u know anybody who got a mac boot up cd for that other
one.” On October 28, 2013, Bradford posted two MacBooks for sale on Instagram.13

1 1

. Count 25: 1213 Alvarado Drive During fall quarter of 2013, Larry O

. , Karim O

. , and George C

. lived at 1213 Alvarado Drive in the Fountain Circle Townhomes complex. During the night of October 13, 2013, Karim and George left the townhome to get food. They locked the front door when they left. Larry was in his bedroom upstairs doing homework. H is bedroom door was shut, and he was wearing noise

- cancelling headphones listening to
music while he did his homework. When the roommates returned home, they discovered the front door had been kicked in. The door was off its frame, and the wooden frame was frayed at the lock.
Karim noticed that his silver MacBook was missing from the living room couch, and a second older MacBook laptop was missing from his upstairs room. George ’s MacBook Pro laptop, iPhone 4, and his backpack with a textbook were missi ng from the kitchen.
Kwon testified that she and Hernandez had walked around outside the apartment, looked inside, and saw no one there. Hernandez rammed his body into the front door and
broke it down. They both went inside, and Hernandez directed Kwon to go upstairs,
which she did. She opened a bedroom door and saw a man sitting at a desk in front of a computer wearing large headphones that covered all of his ears. The two briefly made eye contact, and then Kwon ran downstairs and out the door, telli ng Hernandez there was someone upstairs. They both got in her car and drove back to 1801 Drexel. Early on October 13 , Hernandez had texted Givens, “1213 Alvarado Avenue.” That evening, Givens responded, “Okay.” Hernandez replied, “Check the perimeter.” Cook opined that Hernandez’s and Kwon’s phones were near each other north of UC Davis after 10:00 p.m. on October 13. Roughly an hour later, Hernandez’s phone was in the vicinity of downtown Davis. At approximately 11:45 p.m., his phone moved from the vicinity of 1213 Alvarado toward 1801 Drexel. Givens’s phone remained in the vicinity of 1801 Drexel the entire night.14

The afternoon after the burglary, Hernandez and Bradford texted each other about exchanging a laptop for drugs. That same afternoon, Bradford posted on Instagram a photo of a number of MacBooks, an iPhone, other phones, and a backpack for sale. Early on October 15, 2013, Givens texted Hernandez about his “stuff” and said they needed “to hit Benicia.” Later that s ame day, Givens asked Hernandez by text, “You trying to start selling this stuff ? L

- o

- l, I just started.” Months later, police e

- mail ed George a photo of his laptop, phone, and backpack
taken from Bradford’s phone.

12. Count 32: 280 8 Sycamore Lane
Du ring fall 2013, Roderic V

. lived at 280 8 Sycamore Lane. In the early morning
of October 25, 2013, Roderic left his silver 13

- inch MacBook Pro laptop on the couch in the house’s common area. When he awoke, his laptop was gone. The front door had
been unl ocked when he and his roommates when to bed. Cook opined that Hernandez’s phone was in downtown Davis beginning at 11:00 p.m. October 24, 2013. Reviewing GPS data, Cook opined that Bradford’s phone was also in downtown Davis after 11:00 p.m. on October 24 and at 12:42 a.m. on October 25. On October 26, Bradford texted Kwon saying that , “last night I was stranded. I had to drop the shit I had.” When Kwon asked where, Bradford responded, “At like two downtown. I had a Mackie.” On a different occasion, Hernandez pointed out to Kwon a house on Sycamore Lane he had burgled.

13. D orm burglaries and law enforcement investigation On October 5, 2013 , Kwon texted Hernandez that “the dorms were full of PCs.” Using the student identification card of a resident, Bernadette G

. , the pair gained access to the Cuarto Residence Halls in the middle of the night. They checked doors and windows looking for Mac Books. If they found an open door, they would walk in, grab whatever they could, and leave.15

Surveillance videos from the early morning hours of October 16 and 17 depicted Kwon and Hernandez walking through Cuarto. Former students testified of having th eir laptops stolen on those nights along with other items such as backpacks, wallets , and a
TV

. Cook opined that Kwon’s phone was in the vicinity of Cuarto on October 16, 2013, at approximately 3:00 a.m. Hers and Hernandez’s phones were in the vicinity of Cuarto after 11:15 a.m. that morning. Cook also opined that on October 17, Hernandez’s phone was shut off between approximately 2:00 a.m. and 7:00 a.m. But Kwon’s phone was in the vicinity of Cuarto during that time. Investigating the thefts, Detective Kevin Skaife of the UC Davis Police Department made a surprise visit to Bernadette ’s dorm room in Cuarto on October 22,
2013

. With information from Bern adette and from the university, Detective Skaife
identified Kwon as a suspect. He also identified Hernandez and Kwon as the people in
the surveillance videos. Kwon learned about UC Davis’s investigation from Bernadette . Kwon told
Hernandez. Kwon was n ot a United States citizen, and she and Hernandez planned to marry in part to keep her from being deported. Kwon also wanted to marry him because
she loved him. Kwon discussed her marriage plans with Bradford. On October 23, 2013, Hernandez and Bradfor d exchanged messages about Kwon. Hernandez’s brother, “Bubba,” who was living at 1801 Drexel, complained about Kwon. Bradford wrote, “Bro, we need to keep Esther between me and you anyway. We got a foreign bitch unda full control. [¶] .

. . [¶] We got ta make her think I really love her so you can keep yo bitches tamed lol.” On November 5, 2013, Detective Skaife contacted Kwon to schedule an interview. They agreed to meet the following day. Kwon told Hernandez about the scheduled meeting, and he tol d her to deny everything and not to bring him up. Bradford and Hernandez exchanged messages about what Kwon should say in the interview.16

At the interview on November 6, Kwon initially denied any involvement in the dormitory burglaries. She later said s he had been walking around the dorms with a subject named Jerem y, and she saw him s teal a laptop charger. After the interview, Detective Skaife authored a search warrant for Kwon’s cell phone and call detail records
for her account. The next day, Novembe r 7, he met with Kwon, served the warrant, and seized her cell phone. He subsequently extracted data from the phone, including messages, call records, and photographs, and including data that had been “deleted.” Meanwhile, beginning on November 6, 2013, Bradford and Kwon exchanged multiple messages in which Bradford expressed romantic feelings toward Kwon

. Kwon explained why she loved Hernandez but also that Bradford “could be the one” for her

. Sometime after meeting with Detective Skaife, Kwon w as with Hernandez in his room. Hernandez showed her his shotgun and told her that people who rat are going to get what’s coming to them. P hotograph s on Hernandez’s cell phone taken in October 2013 depicted him with a sawed

- off shotgun.

14. Counts 33, 3 4, and 35: 1513 and 1517 Anderson Road Joseph W

. , the resident of a duplex unit at 1517 Anderson Road grew medicinal marijuana in his house. Hannah and Jeffrey C

. and their two children lived in the duplex’s other unit at 1513 Anderson Road.
On Decembe r 6, 2013, Givens texted Hernandez about doing “the big one tonight or tomorrow,” and he mentioned Bradford. The next morning, Kwon , Hernandez , and
Givens went in Kwon’s car to break into “a drug dealer’s house, Joey.”
David B

. lived across the street from the duplex at 1517/1513 Anderson. On December 7, 2013, he was outside his house when he saw two men walk by. Both were wearing black beanie caps on a Sunday at noon, and they were looking in circles and all
directions. The two crossed the street. While one stood on the curb, the other went in the side gate of the half

- plex and disappeared behind the house. David called 911.17

As David spoke with the dispatcher, the man who had gone through the gate came
out from behind the house. O ne of the men broke the door in at Joseph ’s house with his shoulder, and both men went inside. As the two men entered, David noticed a woman standing on the curb in front of the half

- plex. It was Kwon.
One man came out of Joseph ’s home carryi ng a television. The other man came
out of the C

. s’ home carrying bags. The two men and the woman quickly walked away. Hernandez carried a “giant” green or blue plastic bin to Kwon’s car and put the bin in the
trunk. The three got into the car, and Kwo n drove them straight to 1801 Drexel. Minutes after the burglary, police officers and the duplex’s residents arrived at the

scene. Joseph ’s front door appeared to have been kicked in and part of the frame or doorjamb was cracked. His grow room “had bee n trashed.” A large steel case and a green tub that both contained harvested marijuana were missing.
The C.s’ rear sliding door was open. Their living room couch had footprints on it,
and a large postal box of Christmas presents that had been on the coffee table was missing. Police found the missing box in the backyard. The box had been ripped open.
Ba ck at 1801 Drexel, Hernandez and Givens unloaded the bin. It contained “[a] lot of marijuana.” Later that night, a photo of m arijuana on a cardboard box appeared on Givens’s phone. Givens’s phone also contained a video depicting Bradford l ying on a bed in Givens’s bedroom counting money. The same video appeared on Bradford’s phone the following night, December 8, along with ot her photos of cash and bags of marijuana. On December 10 , Givens texted Hernandez that Hernandez, Bradford, and Hernandez’s brother “can sell that shit” and that Givens did not “want a cut.”
David identified Kwon and Hernandez in photo lineups.

15. Counts 38 and 39: 1112 Chestnut Lane
In fall 2013, Anthony F

. , Daniel K

. , and Matthew S

. , members of the UC Davis cycling team, lived in a house at 1112 Chestnut Lane. During finals week, a man came to18

the door and told Daniel K. they were going to be ha ving a party that night and not to mind the noise. There was no party or noise that night. On December 16, 2013, Anthony returned home from work at about 5:30 a.m. and saw that all the lights inside the house were on. That surprised him because they we re off when he left, and all his roommates had left for winter break. The sliding glass door in his bedroom was open, and all of the bedrooms were disheveled. Anthony discovered that his Felt carbon fiber road bicycle and Matthew ’s carbon
Cerv é lo S5 road bicycle were missing from the garage. A Canon 40D digital camera and its lens, jewelry he had recently purchased, a duffel bag, some currency, and a Brinks home safe with $200 cash were missing from Anthony ’s bedroom. A blue Canon
Power shot camera a nd some money were taken from Anthony ’s room. The thieves took
from Matthew ’s room a wall

- mounted computer monitor, a microphone, an iPod Nano, prescription bottles, and a bag containing an airsoft rifle. Shortly after 3:00 a.m. on the morning of the bu rglary, a photograph of Matthew ’s airsoft rifle appeared on Givens’s phone.

16. Counts 40 and 41: 753 Anderson Road

In fall 2013, Daniel R

. and Chase H

. lived with other roommates in a house at 753
Anderson Road. Before leaving the house for winter bre ak, Daniel R. , who was the last roommate to leave, locked all the doors and closed the windows. Three days later , on December 19, Daniel R. and Chase stopped by the house on their way to Tahoe. The
front door was unlocked. T he back sliding glass door and the kitchen window were open. Bedroom doors had been kicked in. Daniel R. ’s bedroom drawers had been rifled through, and two watches were missing from his dresser’s top drawer. One of his
watches was a Nixon with a leather band.
Chase had left his silver MacBook Pro under his mattress before he left for break. He discovered the laptop had been taken. He was also missing a black backpack, a19

graphing calculator, a pocketknife , medication, and two watches. One watch was a fake
Rolex with a blue f

ace and silver band. Other roommates were missing televisions. Beginning December 16, Bradford and another person exchanged text messages about a broken laptop. On December 19, Bradford asked the same contact, “you still
need a MacBook?” On December 20, Bradford posted a 13

- inch MacBook for sale. Cook opined that on December 19 at 4:35 a.m., Hernandez’s phone was in the vicinity of 753 Anderson. Afterward, the phone was shut off until almost 1:30 p.m. when
it was in the vici nity of an apartment at 3030 Cowell Boulevard.

1 7

. Counts 42 and 43: 611 Russell Boulevard During fall quarter 2013, Samuel S

. lived with two roommates in a duplex at 611
Russell Boulevard. When Samuel returned to the house after winter break on January 3, 2014, he noticed signs of a break

- in. He realized his bedroom door, which he had locked before leaving for the break, was u nlocked. Inside his bedroom, he saw that his window

was broken, and its screen was on the floor. His Westinghouse television that had been mounted on the wall, some watches, and an older MacBook Pro laptop were missing.
Samuel later met with police and identified his missing television.

18

. Search warrants Davis police officers executed a search warrant at 1801 Drexel on December 19,
2013. Givens, Bradford, and other roommates were present. Bradford was wearing Tyler ’s gold Nixon Watch. Bradford’s p hone was found on top of a TV stand. In Givens and Bradford’s bedroom, officers found Joseph ’s green plastic tub of marijuana, scales,
Matthew ’s prescription bottle, and two airsoft guns, one of which belonged to Matthew

. Givens and Bradford were arreste d.
Officers also found Tyler ’s Xbox game and controllers along with other consoles, games, and DVDs. They found Matthew ’s silver iPod Nano, Daniel K. ’s blue Canon

camera, and Anthony ’s Hewlett Packard laptop and his black Skagen watch.20

Also on December 19, 2013, officers executed a search warrant at 3030 Cowell
Boulevard. Hernandez and his girlfriend, Summer , answered the door. Documents identifying Hernandez were found in one of the bedrooms. O fficers found Chase ’s silver
MacBook Pro laptop and his prescription bottle, and bags of marijuana. Hernandez was
arrested. On January 3, 2014, officers executed a search warrant at an apartment at 1659
Drew Circle where Hernandez lived. He and Summer were present, and Hernandez was
taken in to custody

. Officers found, among other items, Samuel ’s Westinghouse television, another victim’s checkbook, and Chase ’s Nixon watch with a brown leather strap. After Hernandez’s arrest, Bradford continued to advertise electronics for sale on Instagram, but he stopped selling MacBook laptops.

1 9

. Verdicts and sentences
A jury found Hernandez guilty of conspiracy to commit burglary (count 1) ; conspiracy to receive stolen property ( count 2) ; 28 counts of first

- degree burglary (including counts 5, 8

- 9, 12, 7 & 15, 19, 20

- 21, 25, and 42) with true findings that the residences were occupied in 1 4 of those burglaries, seven counts of receipt of stolen property more than $950 in value (including counts 13, 22, and 43) ; possession o f a firearm with a felony prior, prohibited ammunition possession ; and misdemeanor possession of marijuana for sale. (Pen. Code, §§ 182, subd. (a)(1); 459; 459/667.5, subd. (c); 496, subd. (a); 29800, subd . (a); 30305, subd. (a); Health & Saf. Code, § 113 59, sub. (b).) ( Statutory section citations that follow are found in the Penal Code unless otherwise
stated .) In a bifurcated court trial, the trial court found true that Hernandez had a prior strike and a prior serious felony conviction. (§§ 667, subd s . (a)(1) , (b)

- (i); 1170.12.)21

After denying Hernandez’s Romero 1 motion to strike his strike prior, t he trial

court sentenced Hernandez to an aggregate prison term of 93 years: the upper term of six years on the first

- degree burglary conviction in count 6; 27 consecutive terms of 16 months (one

- third the middle term) on the remaining first

- degree burglary convictions ; a consecutive term of eight months (one

- third the middle term) for the firearm possession ; a consecutive term of eight months (one

- third the middle term) for the ammunition possession, totaling 43 years 4 months, doubled for the strike prior to 86 years 8 months, plus a five

- year serious felony prior enhancement ; and a consecutive term of 16 months (one

- third the middle term) for an additional first

- degree burglary in c ase No. 10

- 3244 following Hernandez’s probation violation. The c ourt imposed a concurrent jail term of 180 days for the marijuana possession. The court stayed upper terms of six years and three years on the conspi racy convictions in counts 1 and 2, respectively, pursuant to section 654. It also stayed upper terms of three years for the receipt of stolen property
convictions pursuant to section 654. The jury found Bradford guilty of two counts of conspiracy (coun ts 1 and 2) ; eight
counts of first

- degree burglary (counts 8

- 9, 7 & 15, 19, 20

- 21, and 42) with true findings that the residences were occupied in five of those burglaries ; seven counts of receipt of stolen property more than $950 in value (including count s 13, 22, and 43) ; and misdemeanor possession of marijuana for sale. (§§ 182, subd. (a)(1); 459; 459/667.5, subd. (c); 496, subd. (a); Health & Saf. Code, § 11359, sub. (b).) The trial court sentenced Bradford to an aggregate prison term of 13 years fou r months: the lower term of two years on the first

- degree burglary conviction in count 7 ; seven consecutive terms of 16 months (one

- third the middle term) for the remaining burglary counts ; and three consecutive terms of eight months (one

- third the middle term)

1 People v. Superior Court (Romero) (1996) 13 Cal.4th 497.22

for three of the receipt of stolen property convictions (counts 13, 24, 35). The court imposed concurrent lower terms of 16 months on the remaining receipt of stolen property convictions, and a concurrent jail term of 180 days for the marijuana con viction. The court imposed lower terms of two years and 16 months on the conspiracy convictions in counts 1 and 2, respectfully, and then stayed them pursuant to section 654. The jury found Givens guilty of two counts of conspiracy (counts 1 and 2) ; 16
counts of first

- degree burglary (including counts 8

- 9, 12, 7 & 15, 19 , 20

- 21, 25, 42) with true findings that the residences were occupied in nine of those burglaries ; four counts of receipt of stolen property more than $950 in value (including count 4 3) ; and misdemeanor possession of marijuana for sale. ( §§ 182, subd. (a)(1); 459; 459/667.5, subd. (c); 496, subd. (a); Health & Saf. Code, § 11359, sub. (b).) The trial court sentenced Givens to an aggregate prison term of 19 years four
months: the lo wer term of two years for the burglary conviction in count 6 ; 13 consecutive terms of 16 months (one

- third the middle term) on 13 of the remaining burglary convictions ; concurrent lower terms of two years each for the burglary
convictions in counts 21 and 34 ; and a concurrent jail term of 180 days for the marijuana
conviction. The court imposed the lower terms of two years and 16 months for the conspiracy convictions in counts 1 and 2, and it stayed them pursuant to section 654. It imposed lower terms of 16 months for each of the receipt of stolen property convictions, and it stayed execution under section 654

. All defendants filed timely notices of appeal.


### D ISCUSSION

I Bradford’s Conviction of Conspiracy to Commit Burglary (Count 1) Conspiracy is essentially an agreement by two or more persons to commit an unlawful act. ( People v. Ware (2022) 14 Cal.5th 151, 163 ( Ware ) .) The crime has four23

elements: “(1) the existence of an agreement between at least two persons; (2) the specific i ntent to agree to commit an offense; (3) the specific intent to commit the offense that is the object of the agreement; and (4) an overt act in furtherance of the conspiracy, which may be committed by any conspirator.” ( Ibid ., § 182, subd. (a)(1).) The e xistence of an agreement “is the crux ” of criminal conspiracy. ( People v. Homick (2012)
55 Cal.4th 816, 870.)
Bradford contends that insufficient evidence supports his conviction of conspiracy to commit burglary. He claims there is no evidence he entered into an agreement to commit burglary. He asserts t here is no evidence he planned any of the burglaries or was personally involved with them, nor is there evidence he agreed to commit burglary in advance of any or all of them. He argues that c ircumstanti al evidence shows only that he fenced property stolen by others. He admits he knew the property he received from others was stolen, but that knowledge, he argues, is not substantial evidence that he agreed to commit the crime of burglary.

“ ‘ When consid ering a challenge to the sufficiency of the evidence to support a conviction, we review the entire record in the light most favorable to the judgment to
determine whether it contains substantial evidence

— that is, evidence that is reasonable, credible, an d of solid value

— from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.’ [Citation.] We determine ‘whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of
fact could have found the essential elements of the crime beyond a reasonable doubt.’ [Citation.] In so doing, a reviewing court ‘presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.’ ” ( People v. Edwards (2013) 57 Cal.4th 658, 715.)

“ ‘ “ 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 credibility of a witness and the truth or falsity of the facts upon which a24

determination depends. [Citation.] We resolve neither credibility issues nor evidentiary conflicts; we look for substantial evidence. [Citation.]” [Citation.] A reversal for
i nsufficient evidence “is unwarranted unless it appears ‘that upon no hypothesis whatever is there sufficient substantial evidence to support’ ” the jury’s verdict. ’ ” ( People v.
Manibusan (2013) 58 Cal.4th 40, 87.) Evidence is sufficient to prove a conspi racy to commit a crime “ ‘if it supports an inference that the parties positively or tacitly came to a mutual understanding to commit a crime.’ ” ( People v. Rodrigues (1994) 8 Cal.4th 1060, 1135, abrogated on another ground in People v. Leon (2020) 8 Cal. 5th 831, 848.) “[T]he existence and nature of the relationship among the conspirators is undoubt edly relevant to whether such agreement was formed, particularly since such agreement must often be proved circumstantially.

‘ “The existence of a conspiracy may be inferred from the conduct, relationship , interests, and activities of the alleged conspirators before and during the alleged conspiracy.” ’ ” ( People v. Homick, supra , 55 Cal.4th at p. 870, italics omitted.) As a result, “it is not necessary for t he prosecution to prove the alleged conspirators made an express or formal agreement or that they ever met.” ( People v. Austin (1994) 23 Cal.App.4th 1596, 16 06 , disapproved on another ground in People v. Palmer (2001) 24 Cal.4th 856, 861, 867.)

“ The agre ement may be inferred from the conduct of the defendants mutually carrying out a common purpose in violation of a penal statute.” ( People v. Lipinski (1976)
65 Cal.App.3d 566, 575.)
A conspirator does not have to participate in the conspired crime. ( Peop le v.
Malotte (1956) 46 Cal.2d 59, 65.) “ Each party to a conspiracy is criminally responsible for all acts done in furtherance of the conspiratorial design. [ Citations .] In legal contemplation, ‘the act of one is the act of all.’ ( People v. Kauffman (1907) 152 Cal. 331,
334 [] .) In a concerted criminal venture, each party is equally culpable and should suffer the same consequences.” ( People v. Nance (1960) 181 Cal.App.2d 147, 150

- 15125

[defendant who did not participate in burglary was liable for con spiracy to commit burglary for agreeing to help dispose of the stolen goods].) The prosecutio n must establish that the defendant “had the specific intent both to agree to the conspiracy and to commit the object offense.” ( Ware, supra , 14 Cal.5th at
p. 164 .) To establish the requisite specific intent, the prosecution must show that the defendant “intended to play some part in achieving the conspirator’s unlawful ends. Put differently, ‘[t]here must be something more than “[m]ere knowledge, approval of or acquiescence in the object or the purpose of the conspiracy.” ’ ” ( Id . at p. 166.) There is no direct evidence that Bradford entered into an agreement with the other defendants to commit burglary. Thus, the issue before us is whether there is substanti al circumstantial evidence from which a rational juror could reasonably infer that Bradford entered into an agreement to commit burglary, and whether he specifically intended to agree to the conspiracy and to commit burglary. Substantial evidence support s the jury’s determination that Bradford entered into an agreement with Hernandez and Givens to commit burglary. Any rational juror hearing the evidence could have made that determination beyond a reasonable doubt. C ontrary to Bradford’s argument, there was at least one burglary about which the jurors could conclude Bradford participated in and committed an overt act in furtherance of a conspiracy to commit burglary. Bradford was with Hernandez and Kwon when they burgled 1660 Drew Circle. Hernandez told Bradford to get out of the car and stand in the parking lot. Bradford complied and stood in the parking lot for a while before getting back in the car and falling asleep. The jury could reasonably conclude that in this instance, Bradford specifically ag reed to the conspiracy and to the burglary, and his accompanying Hernandez and Kwon and standing in the parking lot at Hernandez’s order was an overt act in furtherance of the conspiracy.
The jury could also infer from all the circumstantial evidence that Bradford had the specific intent to agree to the conspiracy and to commit burglary

. Jurors could infer26

this in part from the numerous times Bradford consistently posted stolen items for sale quickly after Hernandez had stolen them. This happened so regularly that the jury could conclude that Bradford agreed with Hernandez to commit burglary so he could sell the
stolen goods. Hernandez and Givens stole a 15

- inch MacBook Pro from 1708 Drexel. Five days later, Bradford posted a 15

- inch MacBook Pro for sale on Instagram. Hernandez stole two MacBook Pros and an HP laptop from 2734 Albany. After the burglary but on the s ame day, Bradford advertised a MacBook Pro on Instagram. Hernandez stole a MacBook Pro with a mint green case from 727 Anderson. Approximately one month later, that same MacBook Pro with its mint green case appeared on Bradford’s phone. Hernandez stole a MacBook Pro and a Nexus tablet from
1727 Pomona. Two days later, Bradford advertised a MacBook Pro and an iPad for sale on Instagram. A month later, Hernandez stole a MacBook Air laptop from 1727 Pomona. Two days after that burglary, Bradford adverti sed a MacBook Air laptop for sale on Instagram. Hernandez stole a MacBook Pro and two other laptops from 502 Oeste/621
Russell. Seventeen days later, Bradford posted two MacBooks for sale on Instagram. Hernandez stole three MacBooks, an iPhone, and a b ackpack from 1213 Alvarado. That same afternoon, Bradford posted on Instagram a photo of a number of MacBooks, an iPhone, other phones, and a backpack for sale. Hernandez stole two watches and a MacBook Pro from 753 Anderson. The next day, Bradford post ed a 13

- inch MacBook
for sale. The jury could reasonably infer from such consistent cooperation that Hernandez and Bradford agreed to commit burglary to sell stolen property. Some of Bradford’s communications provide further evidence from which the jury

c ould infer an agreement and specific intent to commit burglary . Bradford told Kwon that on the previous night, he had been in downtown Davis at 2:00 a.m. with “a Mackie” he was trying “to drop” within hours after Hernandez stole a MacBook Pro from 2808 Sy camore. Days later, Bradford asked Hernandez, “You unlocked all the Macs.” The27

next day, Bradford e

- mail ed Hernandez, “You gave Q 50.” Hernandez replied to Bradford by text: “I gave you the pad and you getting 50 cuz I was supposed to get 9.
And what about the 8 tomorrow how we finna get that? Bro fuckin call me.” The jury could infer from these communications that Bradford’s relationship with Hernandez was more than simply being aware of the burglaries. The two were in a business relationship,
and the sharing of profits required Hernandez to steal MacBooks and other laptops for Bradford to sell. The jury could inf er from Bradford asking Hernandez if he had
unlocked the Macs he had stolen and from Hernandez asking Bradford to call him to discuss something for the next day that Bradford had agreed to the conspiracy to burgle
homes. Hernandez’s and Bradford’s living circumstances also support a specific intent to commit burglary. Bradford lived at least part time at 1801 Drexel with Hern andez and Givens. Bradford lived among the stolen property that cycled through the house, including through the bedroom he shared with Givens. Indeed, on the day Hernandez and
Givens stole a significant amount of marijuana from 1517 Anderson , Givens’s ph one contained a video depicting Bradford lying on a bed in Givens’s bedroom counting money. The same video appeared on Bradford’s phone the following night along with other photos of cash and bags of marijuana. The jury could infer from these videos in

t heir context at 1801 Drexel that Hernandez, Givens, and Bradford were each part of the conspiracy to burgle the home to get marijuana to sell.
Bradford relies on Ware, supra , 14 Cal.5th 151, to argue that his benefiting from the conspiracy between Hernande z, Givens, and Kwon to commit burglary , or even his encouragement of those burglaries, did not make him a co conspirator. Ware is distinguishable.
T he defendant in Ware was a gang member convicted of conspiracy to commit
murder stemming from a gang rival ry . The prosecution presented no evidence that the defendant had either committed or aided and abetted any act of violence. Instead, to28

establish a conspiracy, the prosecution relied on the defendant’s gang membership, his access to a gun on at least one occasion during the two

- year

- long conspiracy, his social media post s celebrating violence against rival gangs, and evidence of his involvement in a shooting . The evidence from the shooting consisted of photos of him and other gang members taken before and about a mile from where the shooting occurred, messages the defendant sent to the victim to dissuade her from testifying against the driver of the car
from which the shot was fired, and a Facebook post by the defendant calling out the driver for talking with the police. ( Ware, supra , 14 Cal.5th at pp. 156

- 161.) The California Supreme Court held that this evidence was insufficient to establish a conspiracy to commit murder. As we have quoted above, the court declared that the prosecution must show that a defendant intended to play a role in the conspiracy

. The

court stated, “To establish the requisite specific intent connecting an individual defendant to the charged conspira cy, the prosecution must show that the defendant intended to play some part in achieving the conspirator ’ s unlawful ends. Put differently, ‘[t]he re must be something more than “[m]ere knowledge, approval of or acquiescence in the object or the purpose of the conspiracy.” ’ [Citations.] A cheerleader, no matter how enthusiastic, is not a coconspirator unless the prosecution can prove the cheering was intended to play some role in achieving the object offense. Likewise, a member of a group may receive

som e benefit from others’ misdeeds, but without more, a mere beneficiary is not a coconspirator. Unlike a Penal Code section 182.5 gang conspiracy charge, in which knowingly benefiting from the conspiracy is a basis for liability, a Penal Code section
182 tr aditional conspiracy requires the prosecution to demonstrate that the individual defendant intended to play a role in the object offense, not merely profit from it after the fact.” ( Ware, supra , 14 Cal.5th at p. 166.)
The evidence in Ware showed only that the defendant was an active gang member, had access to guns at some point during the conspiracy, tried to help the driver after his arrest for the shooting, and voiced his support for violence against rival gangs. ( Ware,29

supra , 14 Cal.5th at p. 168.) Th e court held, “Considering the evidence as a whole, we conclude that no reasonable jury could have found beyond a reasonable doubt that [the defendant] had the requisite intent to participate in a conspiracy to commit murder.” ( Ibid .)
In contrast to the d efendant in Ware , Bradford was not a mere cheerleader. He did not merely encourage or benefit from the burglaries. The jury could reasonably infer from the evidence we have described that Bradford agreed to the conspiracy and to committing burglary so th at everyone in the conspiracy could profit. He was present at one burglary, as if acting as a lookout for a short time. And his habitual posting of items for sale quickly after Hernandez had stolen them and his communications with Hernandez reasonably im plied to the jury the existence of an agreement between them to commit both burglary and receipt of stolen property. Substantial evidence thus supports Bradford’s conviction under count 1 of conspiracy to commit burglary.

II Lack of Jury Instruction on Number of Conspiracies (Counts 1 and 2) Although a split of authority exists, the more recent authority holds that the number of conspiracies committed is a question of fact, and where the evidence supports

a lternate finding s of one or more than one conspiracy, a trial court must instruct the jury sua sponte to determine the number of conspiracies. ( People v. Kopp (2019)
38 Cal.App.5th 47, 85, review granted on another issue Nov. 13, 2019, S257844 ( Kopp ) ; People v. Meneses (2008) 165 Cal.App

. 4th 1648, 166 8

- 1671 ; People v. Jasso (2006)
142 Cal.App.4th 1213, 1220

- 1223 ( Jasso ) ; cf. People v. Liu (1996) 46 Cal.App.4th 1119, 1133; People v. McLead (1990) 225 Cal.App.3d 906, 921

. )
Bradford and Givens contend , and the Attorney General concedes in supplemental briefing, that the trial court erred by not instructing the jury to determine whether there

was one or more than one conspirac y

. A lthough defendants were charged and convicted30

of committing two separate conspiracies, the evidence supports a n alternate finding they
committed only one conspiracy

— an agreement to commit residential burglaries to obtain property to sell for money

— and the trial court bore a duty to direct the jury to determine
whether defendants committed one or more tha n one conspirac y

. D efendants argue and the Attorney General also concedes that the error was prejudicial under the Watson standard of prejudice

. 2 I f the jury had been correctly instructed, it is reasonably probable defendants would have received a more favorable
verdict. (Because the parties agree the error was prejudicial under Watson , we need not address Givens’ s argument that the error is prejudi cial under the Chapman standard. 3 ) Although Hernandez did not raise this argument, his conspiracy convictions suffer from
the same error

. The parties disagree on the proper remedy. D efendants contend that both of their conspiracy convictions must be rev ersed. They further argue that because both of their conspiracy convictions must be reversed, each of their burglary convictions that were based on vicarious liability must also be reversed. Those convictions for Bradford are counts 7, 8, 9, 15, 19, 20, 21, and 42, and for Givens counts 7, 8, 9, 12, 15, 19, 20, 21,
and 25. Alternatively, defendants argue that one of their conspiracy convictions must be reversed, as the evidence was insufficient to support two conspiracies. Bradford argues
that under th is theory, his conviction under count 1, conspiracy to commit burglary, must
be reversed. He asserts that no substantial evidence supports that conviction against him, and count 2, conspiracy to receive stolen property, is more commensurate with his

2 People v. Watson (1956) 46 Cal.2d 818, 836.

3 Chapman v. California (1967) 386 U.S. 18, 24

.31

culpa bility. Givens contends his conviction under count 2 must be reversed, as count 1 was more commensurate with his culpability. The Attorney General argues that under our discretion to reverse, affirm, or modify a judgment, we should affirm the conspiracy conviction s in count 1 and strike the
conviction s in count 2 for each of the defendants . Because the jury convicted on both counts, had the information charged only a single conspiracy, the jury would have found defendants guilty of a single co nspiracy to commit first degree burglary and receive and
sell stolen property. The Attorney General claims that t hese circumstances justify our affirming the conviction in count 1, as it carried the greater maximum prison term
between the two counts , and our striking the conviction in count 2

. Published authority supports each side’s arguments. The defendants rely on Jasso,

supra , 142 Cal.App.4th 1213, where the Court of Appeal under similar circumstances
reversed all the conspiracy convictions. In that matte r, the defendant was convicted of three counts of conspiracy to transport controlled substances into prison. ( Id . at p. 12 15.) The trial court did not instruct the jury to determine whether there was one overall conspiracy or multiple conspiracies. ( Ibid .) The defendant argued instructional error. ( Id . at p. 1220.) The Court of Appeal agreed and held the error was prejud icial. ( Id . at
p. 1223.) Given the strong evidence that the multiple efforts to smuggle drugs into the prison were part of a single conspiracy rather than three separate counts of conspiracy, it was reasonably probable the jury would have convicted the defendant of a single conspiracy had it been instructed correctly. ( Ibid .)
T he Jasso defendant claimed that the evidence established only one conspiracy as a matter of law, and he asked the court to simply strike two of his three convictions

. ( Jasso, supra , 142 Cal.App.4 th at p. 1223 .) The court declined, and it reversed all three convictions. It explained, “Defendant does not contend that there is insufficient evidence to support the jury’s verdict. Moreover, this is not a case where, fo r example, a single act is the basis for two counts of conspiracy. (E.g., People v. Patrick [(1981)]32

126 Cal.App.3d 952 [single act of kidnapping cannot support separate conspiracy convictions for kidnapping and false imprisonment].) We simply find that the jury should have been directed to decide the factual issue that would have been posed by the omitted instruction.” ( Jasso , at p. 1223.)
The Attorney General relies on Kopp, supra , 38 Cal.App.5th 47 (review granted) , and Patrick, supra , 126 Cal.App.3d 952, to argue we may reverse one but not both conspiracy convictions. In Kopp , the jury convicted the defendants of conspiracy to commit murder and conspiracy to dissuade a witness to ensure that two key witnesses did not testify against one of the defend ants at trial . ( Kopp , at p. 55 , review granted .) The trial court did not instruct the jury to determine whether there were one or two conspiracies. ( Id . at p. 80 , review granted .) The defendants argued instructional error. ( Ibid

. , review granted. ) The Attorney General argued there was no error because the evidence did not support an alternate finding of a single conspiracy. ( Id . at p. 85 , review granted .) The Court of Appeal not only disagreed with the Attorney General, it concluded
th e evidence of a single conspiracy was stronger in its case than it was in Jasso . ( Kopp,

supra , 38 Cal.App.5th at p. 87 , review granted .) With evidence of only one conspiracy, the court struck one of the two conspiracy counts. I t explained, “Considering the record before us, especially considering the prosecutor’s closing argument, the evidence of the conspiracies, and the alleged overt acts, this seems to be one of those unique cases wherein it is apparent that only one conspiracy existed. Thus, a prope rly instructed jury would have only found the existence of a single conspiracy.” ( Id . at p. 88, italics added , review granted .)
In Patrick , the jury convicted the defendant of kidnapping, false imprisonment, and two separate conspiracies to commit those c rimes. ( Patrick, supra , 126 Cal.App.3d at p. 965.) The Court of Appeal struck the false imprisonment conviction, as that offense was a lesser included offense of kidnapping. ( Ibid .) But the defendant also argued33

instructional error, that the offense of conspiracy to commit false imprisonment had to be stricken because the jury was not instructed to distinguish between the two conspiracies. ( Ibid .) The Court of Appeal agreed. It stated , “[T]he instructions given to the jury allowed them to convict Patrick of two conspiracy offenses based on exactly the same conduct. The indictment charging the two conspiracies alleged the same 15 overt acts for each conspiracy. The jury was not instructed that a single agreemen t to commit acts which, if completed, would constitute more than one substantive crime, is but a single conspiracy. [Citation.] Accordingly, Patrick’s conviction on the charge of conspiring to commit false imprisonment must be stricken.” ( Ibid .)
We conc lude that Kopp and Patrick p rovide the better precedent. Th is case was presented to the jury as a single conspiracy. Although the information pleaded two counts of conspiracy, it alleged the same 58 overt acts for each conspiracy. The jury
instructions listed the same 56 overt acts for each conspiracy. During closing argument, the prosecutor argued the defendants were guilty of participating in one conspiracy. Although two conspiracy convictions were charged, the goal of each was the same

— steal proper ty to sell it for money. The three defendants “were all part of an ongoing conspiracy to burglarize homes, burglarize students, and steal MacBooks in the city of Davis.” The People’s theory of the case was “this is a huge conspiracy.” “ It was like a bus iness. It was a burglary enterprise. Each of them [ha d ] their different roles, but they were all involved in a conspiracy to commit burglary.” Significantly, d efendants concede the evidence supports only one conspiracy
conviction for each defendant. Thus , like the Kopp court , considering the prosecutor’s closing argument, the alleged overt acts, and the evidence of the conspiracies, we conclude that one, but on ly one, conspiracy existed. A properly instructed jury would have found the existence of only a single conspiracy. ( See Kopp, supra , 38 Cal.App.5th at p. 88 , review granted .) In th at circumstance, the proper remedy is to dismiss one of the two conspirac ies.34

Givens argues that Kopp and Patrick are distinguishable from this case. The Kopp court held that the evidence before it precluded a finding of two separate conspiracies. The case was not one where a defendant “ ‘formed separate confederations with v arious parties at different times for different transactions.’ ” ( Kopp, supra , 38 Cal.App.5th at
p. 86 , review granted , quoting People v. Meneses, supra , 165 Cal.App.4th at p. 1671.)
Gi vens contends that unlike in Kopp , the evidence in this matter does not necessarily preclude a jury from finding more than one conspiracy. The jury could
determine that Hernandez formed a separate conspiracy with Bradford for receiving stolen property and another separate conspiracy not involving Bradford for committing

r esidential burglaries in Davis. Hernandez could have formed a conspiracy with Kwon to burgle dorm rooms at UC Davis in which Givens and Bradford were not involved. Or he could have formed a conspiracy with Kwon and “Dane” to fence stolen property in the Bay Area without Bradford’s or Givens’ s involvement. Givens argues that, like in Jasso , th e fact the jury could have reasonably concluded there was one overall conspiracy did not prevent the jury from deciding otherwise. Thus, both of the conspiracy convictions should be reversed so the jury can make the factual decision the omitted instruction
would have directed it to make. Givens’ s argument notwithstanding, all the parties agree that had the jury been instructed correctly to determine whether there was one conspiracy of committing burglary to get property to sell for money or more than one conspi racy, the jury would have found there was only one conspiracy. A proper instruction would have correctly defined the one conspiracy as including burglary and receipt of stolen property. Moreover, the evidence in the record supports the existence of only one conspiracy. Thus, unlike in Jasso , this case is one of those unique cases like Kopp where only one conspiracy existed. T he jury would have found the existence of only one conspiracy had it been instructed properly. Whether Hernandez could have forme d a conspiracy with other persons is of no moment; the issue tried was whether there was a conspiracy35

between the three defendants. Because the defendants would have been found guilty of only one conspiracy and not two had the jury been instructed correct ly , they must be sentenced for the one conspiracy. Givens contends we also should not rely on Patrick because, as the Jasso cour t stated, Patrick involved only a single act of kidnapping that could not be used to support separate conspiracy convictions for kidnapping and false imprisonment. ( Jasso, supra , 142 Cal.App.4th at p. 1223.) We respectfully disagree with the Jasso court’s and defendants’ understanding of Patrick . A conviction of an underlying crime is not an element of the crime of conspiracy. “A conspiracy exists where two or more people agree to commit a crime, they specifically intend both to agree and to commit the crime, and one of them performs an overt act in furtherance of their agreement. (§§ 182, subd. (a)(1), 184.)” ( Kopp, supra , 3 8 Cal.App.5th at p. 83 , review granted .) The overt act need not be the crime agreed upon or even a criminal attempt. ( People v. Marquez (1994) 28 Cal.App.4th 1315, 1325

- 1326. ) Because the “essence of the crime of conspiracy is the agreement, .

. . it is the number of the agreements (not the number of the victims or number of statutes violated ) that determine[s] the number of the conspiracies.” ( People v. Meneses, supra , 165 Cal.App.4th at p. 1669, italics added.)
The conviction in Patrick for conspiracy to commit false imprisonment was not reversed because the kidnapping conviction could not support two conspiracy counts. It
was reversed because it was based on the same 15 overt acts charged and established for the kidnapping conspiracy co nviction. ( Patrick, supra , 126 Cal.App.3d at p. 965.) Indeed, the defendant ’s convict ion of kidnapping or any substantive crime in the action

was not necessary to support either of the conspiracy claims. The identical 15 overt acts were alleged for both conspiracy claims, and the evidence established that both conspiracy claims were based on one agreement. The jury, however, was not instructed36

that a single agreement is but a single conspiracy. Hence, the second conspiracy claim was reversed. ( Ibid .) The case’s reasoning and remedy mirror the issues before us

. Having concluded the proper remedy is to reverse one of the two conspiracy convictions, we must determine which one to reverse. The Attorney General contends that because a correctly instructed jury would have found defendants guilty of one conspiracy to commit burglary and receive stolen property, we should prescribe the sentence for the felony which has the greater maximum term , as required by section 182. Under section 182, when two or more persons conspire “to commit two or more felonies which have different punishments and the commission of those felonies constitute but one offense of conspiracy, the penalty shall be tha t prescribed for the felony which has the greater maximum term.” (§ 18 2, subd. (a).) The defendants contend they should be punished for the conspiracy conviction that
was most commensurate with their individual conduct. Givens argues he should be sentenced for conspiracy to commit burglary, and Bradford claims he should be sentenced for conspiracy to receive stolen property. Defendants rely on People v. Rojas (2015) 237 Cal.App.4th 1298, a sex offense case that did not involve a conspiracy. The Rojas court stated that continuous sexual abuse in violation of section 288.5, subdivision (a), and any discrete sexual offense committed against the same victim within the same time period must be charged in the alterna tive; a defendant may be convicted of either offense, but not both. ( Id . at p. 1308.) Where dual convictions occur, one must be vacated. There is authority that in that circumstance, the court will leave standing the
conviction of the offense that is mo st commensurate with the defendant’s culpability, which is usually the conviction that results in the greater penalty. ( Id . at pp. 1308

- 1309.)
W e agree with the Attorney General . Had the jury been correctly instructed, there would have been only one cons piracy conviction to commit two or more felonies. In that circumstance, section 182 requires that the defendants be sentenced to the term prescribed for the felony that has the greater maximum term. Rojas does not apply here37

as it concerned alternative c harges, not a single conviction of conspiring to commit two or more felonies, a conviction whose sentence is set by statute. Burglary has a greater maximum term than receiving stolen property. The maximum term for first degree burglary is six years, while the maximum term for receipt of stolen property is three years. (§§ 461; 496, subd. (a); 1170, subd. (h)(1).) We thus will affirm defendants’ convictions on count 1, conspiracy to commit burglary, and reverse their convictions on count 2, conspiracy to commit receipt of stolen property. Furthermore, because we affirm the convictions on count 1, Bradford’s and Givens’s burglary convictions based on vicarious liability are also affirmed

.
III Sufficiency of Evidence for Hernandez’s Conviction on Count 5 Hernandez contends that insufficient evidence supports his conviction of first

degree burglary under count 5 for burgling the residence at 831 Anderson Road. Recall that the victim, Rui , testified that after she returned home from attending class the

morn ing of July 11, 2013, she discovered that her 13

- inch silver MacBook Pro laptop and her camera were missing. Cell phone evidence indicated that Hernandez’s cell phone migrated toward the area of 831 Anderson at approximately 10:35 a.m. The day after the burglary, pictures of a silver MacBook Pro laptop appeared on Hernandez’s iPhone. Hernandez texted pictures of the laptop from his phone as he tried to exchange it for marijuana.
Rui testified that her MacBook looked exactly like the MacBook depicted on Hernandez’s phone, except that in those photos and unlike her MacBook, the MacBook’s camera was covered by a piece of paper. Rui also did not recognize the log

- in page on the laptop photographed on Hernandez’s phone. It did not look like the log

- in page that appeared when she turned on her MacBook. The log

- in page from the laptop on38

Hernandez’s phone appear ed when something was stolen and the person use d Find my iPhone or Find my iMac app s to locate it. Rui did not have or use such an app.
To prove Hernandez committed first degree burglary, the prosecution had to establish that Hernandez (1) entered into a structure that was then being used for dwelling purposes (2) with the intent to commit a theft or felony. ( People v. Anderson (2009)
47 Cal .4th 92, 101.) “[P] ossession of recently stolen property by itself is not sufficient to support a finding of guilt of any offense

— including theft

- related offenses

— and, accordingly, there must be other corroborating evidence of the defendant’s guilt.” ( Pe ople v. Moore (2011) 51 Cal.4th 1104, 1130.) For theft

- related offenses, the corroboration need only be slight. ( Id. at p. 1131.)
Su bstantial evidence does not support Hernandez’s conviction. There was no evidence from which the jury could conclude beyond a reasonable doubt that the MacBook laptop depicted on Hernandez’s phone was Rui ’s stolen laptop

. The evidence shows only that Hernandez’s cell phone migrated to the vicinity of 831 Anderson the morning of July 11, 2013, during the time Rui was away from the house

. Rui ’s laptop was taken from the house, and the day after the burglary, photos of a MacBook Pro laptop that had a log

- in page that did not match Rui ’s laptop appeared on Hernandez’s cell phone to be exchanged. Rui did not have or use the app that would have displayed the log

- in page that appeared on the laptop on Hernandez’s phone. Since there is no evidence to determine that the displayed laptop was Rui ’s stolen laptop , a rational juror
could not reasonably infer beyond a reasonable doubt t hat Hernandez entered the dwelling at 831 Anderson with the intent to steal

. T he Attorney General speculates the log

- in page on the laptop depicted on Hernandez’s phone plausibly could have resul ted from Hernandez’s unsuccessful login attempts or other efforts to prepare the laptop for sale. There is no evidence in the record supporting the assertion. We will reverse Hernandez’s conviction on count 5.39 IV
Sentencing Issues

A. Assembly Bill No. 51 8 Section 654 prohibits a court from punishing a defendant more than once for the

same act or course of conduct . ( People v. Hestor (2000) 22 Cal.4th 290, 294.) Prior to 2022, the statute required that an act or omission punishable in different ways by different statutes be punished under the provision that provided the longest potential term of imprisonment. (Former § 654, subd. (a).) Assembly Bill No. 518 (Stats. 2021, ch. 441, § 1 [A ssembly B ill 518]) amended section 654 effective January 1, 2022, t o grant a court discretion to punish such an act under either of such provisions. (§ 654, subd. (a).)
Defendants contend that A ssembly B ill 518 applies retroactively to them and requires they be resentenced on those counts where the trial court imposed th e longest potential term of imprisonment under former section 654. The Attorney General agrees,
as do we.
A ssembly B ill 518 applies retroactively to all cases not final when the statu t e took effect, such as this one. ( People v. Mani (2022) 74 Cal.App.5 th 343, 379

- 380.) We will direct the trial court on remand and resentencing to apply section 654 as amended by
A ssembly B ill 518. At resentencing, the trial court may conduct a full resentencing as to all counts as appropriate based on the law and circum stances that apply when resentencing occurs. ( People v. Buycks (2018) 5 Cal.5th 857, 893.)

B. Staying Bradford’s sentence on count 22
Bradford contends the trial court violated section 654 by imposing separate punishments for his convictions of first

- degree burglary of 502 Oeste Drive in count 21
and receipt of stolen property taken during that burglary in count 22. He argues that no substantial evidence supports the trial court’s implied finding that defendant harbored40

mo re than a single intent or objective for those two counts. The Attorney General agrees
with Bradford. Whether a course of conduct is divisible and gives rise to more than one act for purposes of section 654 depends on the defendant’s intent and objectiv e. If all the offenses were incident to one objective, the defendant may be punished for any one of
those offenses but not for more than one. ( Neal v. State of California (1960) 55 Cal.2d 11, 19.) Substantial evidence does not support a finding that Br adford’s vicarious burgling and actual receipt of stolen property from 502 Oeste Drive were incident to more than one objective. The property stolen in the burglary in count 21, a silver MacBook Pro, was the same property that supported the conviction for receipt of stolen property in count 22. In both counts, Bradford’s intent was to obtain stolen property to sell. Because his intent was the same, section 654 barred the trial court from executing separate sentences on both counts. (See People v. Allen (1999) 21 Cal.4th 846, 866

– 867 [affirming burglary and receipt of stolen property convictions and staying punishment for the receipt of property convictions under section 654].) On remand, we will direct the trial court to stay execution of its sentence on either
count 21 or count 22.

C. Senate Bill No. 1393 as to Hernandez At the time of sentencing, state law prohibited trial courts from striking a five

- year enhancement imposed for a prior serious felony conviction under section 667, subdivision (a)(1). ( §§ 667, subd. (a)(1); 1385, subd. (b).) Effective January 1, 2019, Senate Bill No. 1393 (Stats. 2018, ch. 1013, §§ 1, 2 [S eante B ill 1393]) deleted those provisions and gave courts discretion to strike or dismiss serious felony prior
enhancements. (§ 1385, subd. (b).)41

The trial court imposed a five

- year enhancement on Hernandez under section 667, subdivision (a)(1) for a prior serious felony conviction. Hernandez contends S enate B ill 1393 is retroactive, and that we should remand to allow the court to exercise its discretion on whether to impose the enhancement. The Attorney General agrees. We also agree. S enate B ill 1393 applies retroactively to all cases such as this that
were not final when the legislation became effective. ( P eople v. Jones (2019)
32 Cal.App.5th 267, 273.) We will remand for the court to consider whether to strike the
enhancement.

D. Senate Bill No. 567 as to Hernandez
When Hernandez was sentenced, section 1170 gave a trial court discretion when sentencing under a statute that specified three possible prison terms to select what it determined was the appropriate term. (Former § 1170, subd. (b).) Effective January 1, 2022, Senate Bil l No. 567 (Stats. 2021, ch. 731, § 1.3 [S enate B ill 567]) amended section 1170 to limit the trial court’s discretion. A s amended, section 1170 requires a trial court to impose a sentence not to exceed the middle term unless “there are circumstances in
agg ravation of the crime that justify the imposition of a term of imprisonment exceeding the middle term, and the facts underlying those circumstances have been stipulated to by
the defendant , or have been found true beyond a reasonable doubt at trial by the jury or by the judge in a court trial.” (§ 1170, subd. (b)(2).) In addition, S enate B ill 567 amended section 1170 to further limit a trial court’s sentencing discretion when the defendant presented with certain circumstances. Unless the court finds that the aggravating circumstances outweigh the mitigating circumstances such that imposing the lower term would be contrary to the interests of justice, the court must impose the lower term if any of the following circumstances was a contributing factor in the commission of the offense: (1) the defendant had experienced psychological, physical, or childhood trauma; (2) the defendant was a youth at the time of42

the offense (defined as under the age of 26 years); or (3) the defendant is or was a victim of intimate partner violence or human trafficking. (§ 1170, subd. (b)(6).) S enate B ill 567’s amend ments to section 1170 apply retroactively to all nonfinal cases. ( People v.
Zabelle (2022) 80 Cal.App .5th 1098, 1109.) The trial court imposed a sent ence on Hernandez that did not comply with S enate
B ill 567’s requirements. It imposed upper terms based on aggravating factors which had not been found true by the jury or admitted by Hernandez; specifically, that Hernandez
was a leader in the crimes, and he engaged in conduct that showed planning, sophistication, and professionalism. (Cal. Rules of Court, rule 4.421(a)(4), (8).) Also, Hernandez was 22 years old when he committed the offenses, and there is evidence he was subject to abuse resulting in childhood trauma . The court m ade no finding that his youth or history of abuse were a contributing factor to his committing his crimes or that imposing the lower terms would be contrary to the interests of justice.
Defendant contends he is entitled to the ameliorative benefits of S enate B ill 567 and that we must remand for resentencing. The Attorney Genera l agrees. We agree the
matter should be remanded for the trial court to determine in the first instance whether defendant should have been sentenced to the lower terms. It is undisputed he was a youth at the time of his crimes. At a minimum, the trial c ourt must determine whether defendant’s youth was a contributing factor to his committing the crimes and whether imposing the lower terms would be contrary to the interests of justice. We need not address the imposition of the upper terms because at resentencing, the trial court may conduct a full resentencing as to all counts as appropriate based on the law and circumstances that apply when resentencing occurs. ( People v. Buycks , supra , 5 Cal.5th at p. 893.)43

E. Hernandez’s ineligibility for youth of fender parole hearing Hernandez is ineligible for parole consideration as a youthful offender under section 3051 because of his prior strike conviction . (§ 3051, subd. (h).) He argues that
his exclusion violates his right to equal protection under the fe deral and state
constitutions

. It does not. To establish a violation of equal protection, Hernandez must show he is similarly
situated to other defendants who receive more favorable treatment under section 3051

. ( People v. Foster (2019) 7 Cal.5th 1202, 1 211

- 1212.) He must also show there is no rational relationship between the disparity of treatment and a legitimate government purpose. ( People v. Chatman (2018) 4 Cal.5th 277, 288

- 289.) Her nandez cannot make either showing.
It is well established that youthful offenders with prior strikes are not similarly
situated to youthful offenders who have not suffered any prior strikes. ( People v. Delgado (2022) 78Cal.App.5th 95, 102; People v. Wilkes (2020) 46 Cal.App.5th 1159,
1165

- 1166.) Un like first

- time offenders, a person convicted of prior strikes “is a recidivist who has engaged in significant antisocial behavior and who has not benefited from the intervention of the criminal justice system. He is the prototype of the repeat
offender f or whom the three strikes legislation was drafted.” ( People v. Cooper (1996)
43 Cal.App.4th 815, 829.) Even if the two groups were similarly situated, the Legislature has a legitimate government purpose to punish defendants with prior strikes more harsh ly. “The system of imposing greater punishment on all persons who commit a felony

- grade crime after having committed one or more serious or violent felonies in the past, is rationally related to the legitimate public objective of discouraging recidivism.” ( People v. Kilborn (1996)
41 Cal.App.4th 1325, 1332.) A recidivist “presents too gr eat a risk of recidivism to allow the possibility of early parole.” ( People v. Wilkes, supra , 46 Cal.App.5th at p. 1166.)44

Herna ndez cites People v. Edwards (2019) 34 C al.App.5th 183 as authority for holding the different treatment unconstitutional. That case does not apply . In Edwards , the Court of Appeal held the statutory exclusion of youth offenders sentenced under the “One Strike” law from the youth offender parol e consideration violated equal protection. ( Id. at p. 199 .) The court found no rational basis for excluding One Strike defendants
convicted of crimes short of homicide when first

- time murderers were not excluded. ( Id

. at pp. 196

- 197

. ) The case does not address recidivism as a rational purpose for the distinction here. Indeed, Edwards noted the element of criminal history was not at issue. ( Id . at p. 199.) Because the Legislature had a rational basis for excluding recidivist youth
offenders such as Hernandez from youth offender parole eligibility, the exclusion does not violate equal protection.

F. Cruel and unusual punishment
Hernandez claims his 93

- year prison sentence violates the Eight Amendment’s proscription against cruel and unusual punishment and the California Constitution’s counterpart. Because Hernandez is entitled to a full resentencing which may yield a lower sentence, this contention is moot.


### D ISPOSITION Defendants’ convictions under count 2, conspiracy to receive stolen property, are

r eversed. Hernandez’s conviction under count 5, first degree burglary, is reversed. In all other respects, the judgments are affirmed except that the matter is remanded for a full resentencing as to each defendant on all counts as appropriate based on the law and circumstances that apply when resentencing occurs. As part of resentencing, the trial
court shall (1) apply A ssembly B ill 518 to each defendant’s sentence where it imposed the longest potential term of imprisonment under former section 654 ; (2) s tay execution of its sentence against Bradford on either count 21 or count 22 as required by section 654 ;45

(3) consider under S enate B ill 1393 whether to strike Hernandez’s enhancement imposed under section 667, subdivision (a)(1); and (4) apply S enate B ill 567 to Hernandez’s
sentence and determine whether he should be sentenced to the lower term on counts where the court may impose the lower, middle, or upper term.

HULL, Acting P. J.

We concur:

DUARTE, J.

ASHWORTH, J. 

 Judge of the El Dorado County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.