Filed 4/13/16 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE,
Plaintiff and Respondent,

v.

TRAVION WEDDINGTON et al.
,
Defendant s and Appellant s

. B256361
(Los Angeles County Super. Ct. No. PA071550 )

APPEAL S from judgment s of the Superio r Court of Los Angeles County
, Harvey
Giss , Judge. Affirmed with directions

. John F. Schuck , under appointment by the Court of Appeal, for Defendant and Appellan t Travion Weddington

. Roberta Simon, under appointment by the Court of Appeal, for Defendant and Appellant Willie Nunnery

. Christine C. Shaver, under appointment by the Court of Appeal, for Defendant and Appellant Taliah Bashir.
Kamala D. Harris
, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters , Senior Assis tant Attorney General, Paul M. Roadarmel, Jr.
, Supervising Deputy Attorney General, and Allison H. Chung
, Deputy Attorney General, for Plaintiff and Respondent.

_________________________________2

Travion Weddington, Willie Nunnery, and Taliah Bashir appeal from the judgment s entered following a jury trial in which t he y w ere convicted of one count of first degree burglary in violation of Penal Code section 459, 1 one co unt of conspiracy to commit residential burglary (§ 182, subd. (a)(1)) , four counts of attempted first degree burglary (§§ 664, 459) , one felony count of evading a peace officer in willful disregard for safety (Veh. Code, § 2800.2, subd. (a)), and one coun t of possession of burglar’s tools (§ 466)

. Following a bifurcated bench trial, the trial court found true the gang enhancement allegations as to all three defendants on all counts of conviction. (§ 186.22, subd. ( b)(1).) The court s entenced Weddington to an aggregate term of 18 years
8 months in state prison ; Nunnery to a total term of 14 years 4 months in state prison; 2 and Bashir to an aggregate term of 15 years in state prison

. A ppellant s conten d: 3 (1) the attempted burglary convictions must be reve rsed for
insufficient evidence because appellants’ conduct did not progress beyond planning and preparation ; (2) the true finding on the gang enhancement must be reversed for lack of
substantial evidence that the underlying offenses were gang

- related ; (3) the evidence is
insufficient to sustain the conviction on count 4 against Nunnery and Weddington for evading a peace officer in willful disregard for safety because they were merely passengers in the vehicle driven by Bashir; (4 ) the conviction on count 4 must also be
reversed based on the trial court’s failure to instruct the jury on the lesser included offense of misdemeanor evading a peace officer; and ( 5 ) a remand for resentencing for the conviction of possession of burglary tools is required based on t he trial court’s

1 Undesignated statutory references are to the Penal Code.

2 Nunnery pleaded guilty to count 5, misdemeanor b attery (§ 243, subd. (c)(2)) and received a one

- year consecutive sentence. However, the abstract of judgment omits reference to the sentence on count 5, incorrectly reflecting an aggregate term of 13 years 4 months.

3 Each of the appellants has joined an d adopted by reference all arguments raised by co

- appellants that may accrue to his or her benefit. ( People v. Stone (1981) 117 Cal.App.3d 15, 19, fn. 5; Cal. Rules of Court, rule 8.200(a)(5).)3

misunderstanding of its sentencing discretion

. We find no merit to appellants’ contentions, and affirm

. FACTUAL BACKGROUND September 7, 2011 4
Elizabeth Barba and her husband Jose Fernandez lived on the 11000 block of
Gerald Avenue in Gran ada Hills. On September 7, 2011, about 10:30 a.m., Fernandez

was walking to his truck on the street when he noticed a red Chrysler Sebring parked nearby . Two African

- American males were seated in the vehicle, but the driver’s seat was empty. The outside temperature was about 100 degrees that day, and Fernandez thought it suspicious that someone would be sitting in a ca r in the heat. Fernandez went back inside
, and when he came out, the car was gone. About half an hour later,
Fernandez s aw the Sebring c oming down the street. A s the car passed
, Fernandez could
see the driver
, who appeared to be an 18

- t o 25

- year

- old woman , as well as the same
passengers he had seen earlier.
Sometime after Fernandez had left
, Barba noticed a red car parked across the

stre et. The car pulled away, but returned five or ten minutes later. Barba saw the driver,
whom she later identified as Bashir, get out of the car and approach Barba’s front door.
When Bashir reached the front door she pounded on it loudly for about 30 seco nds

. Barba became frightened. She gathered her children and went to the master bedroom as the pounding continued

. When the pounding stopped, Barba saw Bashir return to the red

car , where two male passengers were waiting. The car then drove away

. About 11:00 a.m. that day, as Los Angeles Police Officer John Parker was on patrol near Havenhurst Avenue in Granada Hills , he noticed a red Chrysler Sebring driven by a woman with two male passengers who were slouching down in their seats

. Officer Parker follo wed the vehicle and next saw it stopped in the alley behind Barba’s
house. Weddington got out of the car, and as he walk ed toward the trunk of the Sebring
,

4 Because the jury acquitted appellants on count 13, we omit a recitation of the evidence related to that count.4

he looked in Officer Parker’s direction and immediately got back into the car. The Sebring then ac celerated quickly away. Officer Parker followed the Sebr ing as it sped out of the alley

— going 30 to 35 miles per hour in a 15

- mile per hour zone

— and turned right without stopping at the end of the alley or signaling for the turn. Officer Parker
tried to get behind the Sebring to condu ct a traffic stop, but the Sebring sped onto the 118 Freeway with Officer Parker still in pursuit. Officer Parker accelerated, followed the Sebring onto the freeway, and turned on the patrol vehicle’s lights and siren. The Sebring exited the freeway and came to a stop

. Officer Parker requested backup units and conducted a traffic stop. Weddington and Nunnery were passengers in the car driven by Bashir, who was driving on a suspended license

. T he Sebring was impounded and s earched

. The destination on the GPS on Weddington ’s cell phone was an address located in the southern part of Los Angeles. In the search, p olice recovered a crowbar, a window punch, two flathead screwdrivers, one with a bent tip, a Phillips

- head screwdri ver, a tire repair tool, a pair of

two

- way radios, one black glove, two empty backpacks, and a pair of white gloves. Another pair of black gloves was recovered from Nunnery’s pocket. Los Angeles Police Officer Benjamin Sadeh described how these items cou ld be used in a burglary and opined that most of these items were common burglary tools. September 26, 2011 5 Midmorning on September 26, 2011, a multi

- unit team of the Los Angeles Police Department conducted undercover surveillance of the red Chrysler Sebr ing starting in the
southern part of Los Angeles and continuing north along the 405 Freeway into the San Fernando Valley

. Officers in a helicopter tracked the Sebring using a powerful magnifying camera
, which enabled them to see people on the ground from an altitude of 6,500 to 8,000 feet. The officers in the helicopter were in contact with numerous officers on the ground in unmarked vehicles who were using the information provided by the

5 The trial court dismissed count 12 pursuant to defense motions for judgment of acquittal. (§ 1118.1.) Accordingly, evidence relating to that count is omitted.5

airship to follow the Sebring and relay street names and house numb ers back to the helicopter. The helicopter tracked the Sebring as it exited the freeway in Northridge and slowly drove through side streets , occasionally stopping in front of homes

. Eventually,

t he Sebring stopped in front of a house on the 9000 block of Gothic Avenue. After about five minutes, t he female driver exit ed the vehicle , walk ed to the front door of the house,
and knock ed on the door for one to two minutes. N o one opened the door. T he woman
returned to the Sebring and drove away. The Sebring s topped in front of the home of Julianne McCloskey on the 9000 block of Gerald Avenue. Once again, the driver got out of the car, walked up to the front door of the house, knocked, and stood there for about a minute and a half

. No one came
to the door. T he driver then peeked over the side gate of the house before returning to the
car. After a few minutes the Sebring pulled away. 6 The Sebring then parked across the street from a home on the 16000 block of Tupper Street. Again, the driver exited the vehic le and knocked on the front door of the
house for about a minute. No one came to the door. The driver looked over the gate on the side of the house before returning to the Sebring. After about five minutes the Sebring drove away.
Police next observed th e Sebring stop in front of the home of Kin Fong on the
16000 block of Labrador Street. Fong was not home. The female driver got out of the car and walked up the driveway to the front door of the house. After knocking on the

6 Although McCloskey had been home part o f the day, she had not seen appellants on her property or in the area of her house. However, sometime between March 31 and April 15, 2011, Bashir had approached McCloskey at her house
, claiming she was selling some kind of cleaner. McCloskey became suspi cious when she learned that Bashir had only one bottle of the cleaner, and told Bashir she did not allow solicitors on her property and was not interested. The encounter stuck in McCloskey’s memory because Bashir had retorted, “Well, did your children eat today?” McCloskey offered to give Bashir food if she needed to feed her children, but Bashir responded with an expletive and walked away.6

door for a minute or two and receiving no response, she walked to the side gate and
looked in to t he backyard. As she had done after knocking on the doors of the previous homes, t he woman went back to the Sebring and sat in the driver’s seat. This time, however, the Sebring did not p ull away. A fter about five minutes, a thin male emerged
from the back seat of the Sebring and went t hrough the gate to the backyard

. A heavier
male then got out of the front passenger seat of the Sebring and joined the thinner man in the backyard. The me n opened a window through which they entered the house. After about 10 to 15 minutes, both men exited through the front door carrying small bags and pillowcases which appeared to be weighted down. 7
A marked police car followed the Sebring when it left the Fong residence

. As

p olice attempted to conduct a traffic stop, t he Sebring began to p ull over to the right and
slow down, but suddenly accelerated and sped away. During the ensuing police chase, the Sebring ran several red lights in heavy traffic, and m oney, coins, jewelry, clothing, and video game cartridges were thrown from all four of the Sebring’s windows. Some of
the coins hit the windsh ield of the closest police car.
T he Sebring eventually crashed
, and the three occupants of the vehicle ran in
dif ferent directions. Police took up the chase on foot, and Bashir, Weddington, and Nunnery were apprehended and taken into custody. As Nunnery was being apprehended, he spun around and elbowed the arresting officer in the face, breaking his nose. 8 Gang Evi dence In a bifurcated bench trial, t he prosecution presented evidence in support of the gang enhancement allegations that Weddington, Nunnery
, and Bashir were all members

7 When Fong returned home, she found her house had been ransacked and property worth more than $1,000 was missing.

8 Based on this conduct, Nunnery was charged individually in count 5 with battery with injury on a peace officer, with a special allegation of personal infliction of great bodily injury on a peace officer. (§ 243, subd. (c)(2).) Following the jury’s dead lock on count 5, the court declared a mistrial as to that count, and Nunnery pleaded guilty to misdemeanor battery.7

of the Clover subset of the “Seven Trey Gangster Hustler Crip” criminal street gang ( STGH) , an offshoot of the original Crips gang

. They all had numerous STGH tattoos. The prosecution gang expert testified that gang tattoos were earned by “putting in work” for the gang, that is, committing crimes for the gang’s benefit. An individual wi th STGH tattoos who is not a member of STGH but is present in the gang’s territory risks serio us injury or even being killed. The prosecution also presented evidence about a traffic stop on August 11, 2011, in which Weddington and Nunnery were passengers i n a car driven by Fawzy Shabib. Police conducting the stop found two loaded handguns in the vehicle. A DNA profile obtained from the handgun close st to Weddington matched his DNA profile. That handgun was loaded with six live rounds and its safety was o ff. During the stop, the officer noted Weddington ’s and Nunnery’s numerous gang

- related tattoos. Subsequently,
the officer saw a YouTube video featuring Shabib claiming membership in the Clover
subset of the STGH gang, throwing gang signs, and using gang vernacular to disparage other gangs. The prosecution’s gang expert opined that the circumstances of the traffic stop were consistent with Weddington ’s and Nunnery’s active membership in STGH. According to the prosecution gang expert, t he burglary and att empted burglaries represented a signature crime of STGH, known as “floccin’
, ” in which Crip gang members leave their territory in the southern part of Los Angeles to commit daytime burglaries of residences in the San Fernando Valley suburbs. The term “flo ccin’” is
derived from so

- called “knock

- knock burglaries,” in which one of the perpetrators knocks on the door of a target residence to determine if anyone is home. The gang expert
described a YouTube video he had seen by a STGH gang member known as “Cowb oy” which depicted floccin’ as a residential daytime burglary in which jewelry and other small items are taken and the perpetrators f lee in a getaway car. The expert explained
that i f a woman participates in the crime, she is usually the driver of the get away vehicle.8 DISCUSSION
I. Substantial Evidence Supports t he Attempted Burglary Convictions Appellants contend the re was no evidence that appellants’ conduct had progressed beyond planning and preparation , and t herefore the ir convictions for attempted bu rglary
i n counts 2, 9, 10, and 11 must be reversed for insuf ficient evidence. We disagree. A criminal attempt occurs when there is a specific intent to commit the crime and
a direct but ineffectual act done toward its commission. ( People v. Hajek and Vo (2014) 58 Cal.4th 1144, 1192; People v. Bonner (2000) 80 Cal.App.4th 759, 764.) “The overt act element of attempt requires conduct that goes beyond ‘ mere preparation ’ and ‘ show[s] that [defendant] is putting his or her plan into action. ’ ” ( People v. Wat kins (2012) 55 Cal.4th 999, 1021 ; People v. Toledo (2001) 26 Cal.4th 221, 230.) “ The act that goes

‘ beyond mere preparation ’ need not constitute an element of the target crime [citation], and it ‘ “ need not be the ultimate step toward the consummation of the design.” ’ [Citation.] Instead, ‘ “it is sufficient if [the conduct] is the first or some subsequent act
directed towards that end after t he preparations are made. ” ’ [Citation.] In other words,

. . . the act must represent ‘ “some appreciable frag ment of the crime.” ’ ” ( People v.
Watkins
, supra , 55 Cal.4th at p. 1021; People v. Hajek and Vo
, supra , 58 Cal.4th at

p. 1192; People v. Superior Court ( Decker ) (2007) 41 Cal.4th 1, 8 ( Decker ) .) Our Supreme Court has “recognized that ‘[w]henever the desi gn of a person to commit crime is clearly shown, slight acts in furtherance of the design will constitute an attempt.’ ” ( Decker
, supra , 41 Cal.4th at p. 8 ; People v. Davis (2009) 46 Cal.4th 539,
606 .) In the face of such manifest intent, “an act done to ward the commission of the crime may be sufficient for an attempt even though that same act would be insufficient if the intent is not as clearly shown.” ( People v. Bonner
, supra , 80 Cal.App.4th at p. 764.) Indeed, “the plainer the intent to commit the o ffense, the more likely that steps in the early stages of the commission of the crime will satisfy the overt act requirement.” ( People v. Dillon (1983) 34 Cal.3d 441, 455; People v. Anderson (1934) 1 Cal.2d 687, 690.)9

A ppellants characterize the ir acts of driving through neighborhoods and knocking
on doors merely as preparation to commit burglary, which falls short of the overt act necessary to establish an attempt. We disagree

. I n reviewing appellants’ challenge to the sufficiency of the evidence
, we exa mine the whole record in the light most favorable to the judgment, draw ing all reasonable
inferences in favor of the verdict
, and presuming “in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.” ( Peop le v. Kraft (2000) 23 Cal.4th 978, 1053 ; People v. Maciel (2013) 57 Cal.4th 482, 515 .) “ ‘The standard of review is the same in cases in which the People rely mainly on circumstantial evidence. [Citation.] “Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence [citations], it is the jury, not the appellate court which must be convinced of the defendant’s guilt beyond a r easonable doubt.” ’ ” ( People v. Snow (2003) 30 Cal.4th 43, 66.) “ ‘ “If the circumstances reasonably justify the trier of fact ’ s findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary find ing does not warrant a reversal of the judgme nt. ” ’ ” ( People v. Kraft
, supra , 23 Cal.4th at pp. 1053

– 1054 ; People v. Zamudio (2008) 43 Cal.4th 327, 358 .) It is not the role of the appellate court to reweigh the evidence or reevaluate witnesses’ credibil ity. ( People v. Whisenhunt (2008) 44 Cal.4th 174, 200.) “An appellate court must accept logical inferences that the jury might have drawn from the circumstantial evidence.” ( People v. Maury (2003) 30 Cal.4th 342, 396.) Indeed,
reversal for lack of subs tantial evidence is warranted only if “ ‘upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].’ ” ( People v.
Bolin (1998) 18 Cal.4th 297, 331; accord, People v. Zamudio
, supra , 43 Cal.4th at p. 357; People v. Pr e (2004) 117 Cal.App.4th 413, 421.) Instructing on the elements required to prove an attempted burglary , t he trial court explained that “[a] direct step is one that goes beyond planning or preparation and shows that a person is putting his or her plan into action.” T he court further instructed that “[a] person who attempts to commit burglary is guilty of attempted burglary even if, after10

taking a direct step towards committing the crime, he or she abandoned further efforts to complete the crime

. ” 9 (CALCRI M No. 460 ; 1 Witkin, Cal. Crim inal Law ( 4th ed. 2012) Elements, § 71, p. 363; see also People v. Staples (1970) 6 Cal.App.3d 61, 69; People v.
Carter (1925) 73 Cal.App. 495, 500 .) Here, the evidence amply supported the jury ’s find ing that appellants had

co mpleted their planning and preparation to commit burglaries when they traveled from the southern part of Los Angeles to the San Fernando Valley with tools in the car to aid in the commission of those burglaries. Appellants’ unusual conduct, which included driving slowly through the targeted neighborhoods, parking in front of certain residences for several minutes, knocking on the front doors of those houses for one to two minutes, and peering over gates into backyards
, was not the behavior of an innocent v isitor to a neighborhood. The jury could thus reasonably conclude that appellants’ acts constituted direct movements toward the commission of burglary after the preparations had been made, representing implementation of the plan and the commencement of th e consummation of the crime. ( People v. Watkins
, supra , 55 Cal.4th at p. 1021; Decker
, supra , 41 Cal.4th at p. 8 ; People v. Toledo
, supra , 26 Cal.4th at p. 230 .) Further, e ven though appellants apparently decided not to complete the burglaries
of some of the homes they targeted, the evidence supported the jury’s conclusion that appellants had already taken steps to implement their plan. At this point, a voluntary
withdrawal

— even one occasioned by a change of heart (of which there is no evidence here)

— woul d constitute no defense to the charge of attempted burglary. ( People v.
Robinson (1960) 180 Cal.App.2d 745, 750

– 751; see also People v. Stewart (1893)
97 Cal. 238, 240 [“The fact that [defendant] abandoned his wicked purpose upon the approach of other par ties has not the slightest tendency to purge him of the legal consequences of his criminal conduct. If an assault with the intent here alleged is made,

9 Appellants do not challenge the propriety of these instructions.11

it is no less a crime, though the aggressor should abandon his intentions before the
consummation of th e act, by reason of the pains of a stricken conscience alone”].)
The re was also abundant evidence in this case from which the jury could infer appellants’ intent to commit a string of residential burglaries. Appellants were apprehended on September 7 with burglary tools in their car. And t hey followed the identical pattern for the residence they actually burglarized as they had for all th e other targeted homes: In mid morning during the week when most people are at work, appellants drove a significant dis tance from their homes to a San Fernando Valley suburb, slowly cruising through residential neighborhoods. They parked on the street in
front of a house, and while the two men waited in the car, Bashir got out and stood at the front door for an unusually long time, knocking for one to two minutes. When no one came to the door, she looked over the gates of two of the homes

. After Bashir returned to the Sebring, appellants remained parked on the street for several more minutes before
either moving on to th e next target or burglarizing the home

. (See People v. Prince (2007) 40 Cal.4th 1179, 1257 ( Prince ).)
In Prince , the defendant challenged the sufficiency of the evidence in support of his attempted burglary conviction as appellants do here, on the ground that the evidence “consisted of nothing more than an innocent knock at the door, accompanied by an inquiry after a friend.” ( Prince , supra , 40 Cal.4th at p. 1257.) Citing the defendant’s completed bur glary a month after the attempt and his pattern of con duct in committing the attempted burglary and other crimes, the Supreme Court found “ample evidence that [the] approach to the [victim’s] residence also constituted an attempted burglary in which defendant’s activities went beyond mere preparation

. ” ( Ibid .) Here, as in Prince , t he completed burglary together with a ppellants’ strikingly similar methods of operation for every one of the targeted residences clearly
demonstrated their intent to burgla rize homes in the area

. ( Prince , supra , 40 Cal.4th 1179; s e e also People v. Davis
, supra , 46 Cal.4th at pp. 606

– 607; People v. Ansaldo ( 1998) 60 Cal.App.4th 1190, 1197 .) And unlike Prince , no innocent purpose was even suggested, nor is any apparent from appellants’ conduct. As set forth above, in the face12

of suc h overwhelming evidence of intent to commit the target crime, only “ ‘slight acts in furtherance of the design will constitute an attempt.’ ” ( Decker
, supra , 41 Cal.4th at p. 8 ; People v. Davis
, supra , 46 Cal.4th at p. 606 .) Moreover, w here , as here, int ent is so clearly demonstrated
, “ ‘ “ the courts should not destroy the practical and common

- sense administration of the law with subtleties as to what constitutes preparation and what
constitutes an act done toward the commission of a crime. ” ’ ” ( People v. Davis , supra , 46 Cal.4th at p. 606.) In challenging the sufficiency of the evidence to support appellants’ convictions for attempted burglary, appellants and the dissent focus narrowly on Bashir’s conduct of approaching and knocking on the front door of each of the targeted homes to argue that appellants’ conduct amounted to no more than prepar ation to commit burglary. (See conc. & dis. opn. at p p

. 1

– 6 , post .) But our substantial evidence review requires that we consider the totality of the evidence pr esented, including the reasonable inferences to be drawn from that evidence, and conduct our review in the light most favorable to the judgment. ( People v. Maciel
, supra, 57 Cal.4th at p. 515; People v. Johnson (1980)
26 Cal.3d 557, 576.) Such review doe s not permit an appellate court to second

- guess the jury in its evidentiary assessments. ( People v. Zamudio
, supra , 43 Cal.4th at p. 357

– 358.)
The dissent contends that appellants’ “scouting or casing did not constitute an unequivocal commitment to breaki ng in to the houses: They might break into the house, but they might keep looking. In fact, defendants did not break into any of these houses and instead kept looking until they found what they considered a suitable target.” ( C onc. & dis. opn. at pp. 3

– 4, post .) By focus ing on appellants ’ “equivocation
, ” however, the
dissent reweighs the evidence to determine that the circumstances might reasonably be reconciled with a finding that appellants’ conduct had not yet crossed the line from mere preparation t o implementation of their plan

. But t he jury evaluated the same evidence
and reached a different determination
, reasonably concluding that appellants’ conduct

— driving slowly through neighborhoods far from where they lived and equipped with tools
for commi tting burglaries , parking in front of certain residences for several minutes,13

knocking on the front doors of those houses for an unusual length of time , and peering into backyards

— constituted direct movements toward the commission of burglary after the pre parations had been made. Whether such conduct demonstrated “equivocation” was for the jury to decide, and t he reviewing court’s opinion that the facts may be susceptible to more than one reasonable interpretation can not form the basis for reversal
of the judgment. ( People v. Kraft
, supra , 23 Cal.4th at pp. 1053

– 1054; People v.
Zamudio
, supra , 43 Cal.4th at p. 358.) The dissent distinguishes the recent case of People v. Zaun (March 25, 2016, C078962) __

_ Cal.App.4th __

_ [2016 Cal.App. Lexis 225 ] ( Zaun ) on the ground that in this case, “unlike in Zaun , there is no evidence that the defendants’ intent to burgle was frustrated by the presence of unwanted occupants.” (Conc. & dis. opn. at p. 5 , post .) In
Zaun , the defendant challenged the sufficiency of the e vidence in support of his convictions for attempted burglary on the ground that the evidence established only that he and his associates were casing houses, but not that they had formed the requisite intent to commit burglary. ( Zaun , at p.

___ [2016 Cal.A pp. Lexis 225, at *3 ] .) There, as in
Prince and this case
, the defendant and his associates took turns knocking on the doors of houses, making some pretense for the visit if someone answered the door, and burglarizing three homes where no one answered the door. The court noted that the
circumstantial evidence of the defendant’s intent was susceptible of two interpretations by the jury, one innocent, the other guilty. Citing the familiar principles of substantial evidence review set forth above, the court concluded that the defendant’s attempted burglary convictions were based on logical inferences the jury had drawn from the evidence, which the court must accept on appeal. ( Id. at p.

___ [2016 Cal.App. Lexis 225, at *3

– * 4 ] ; People v. Maury
, supra , 30 Cal .4th at p. 396.) Here, as in Zaun , substantial evidence supported the jury’s conclusion that appellants intended to commit burglary. In this case, the jury also reasonably determined
that appellants ’ acts of cruising through a residential neighborhood, kn ocking on doors and looking over fences constituted the implementation of their plan to burglarize homes
in the area after th e preparations had been made. As set forth above, s uch acts “ ‘need14

not be the ultimate step toward the consummation of the design ,’ ” but may even be the first act that goes “ ‘beyond mere preparation’ ” and represents “ ‘ “some appreciable fragment of the crime.” ’ ” ( People v. Watkins
, supra , 55 Cal.4th at p. 1021; People v. Hajek and Vo
, supra , 58 Cal.4th at p. 1192; People v. T oledo
, supra , 26 Cal.4th at p. 230 [“Under the provisions of section 21a, a defendant properly may be found guilty of [an attempt crime] whenever, acting with the specific intent to commit the offense

. . . , the defendant performs an act that goes beyond mere preparation and indicates that he or sh e is putting a plan into action ”] .)
A n examination of the whole record in this case reveals abundant evidentiary support for the jury’s determination that appellants had progressed beyond planning and preparation , and their conduct constituted the execution of the planned burglaries. Based on the totality of the evidence, we therefore reject appellants’ challenge to the sufficiency of the evidence supporting the ir convictions for attempted burglary

. II. Substant ial Evidence Supports the Trial Court’s True Findings on the Gang Allegations Appellants contend that t he trial court’s true finding s on the gang enhancements must be reversed because the only evidence supporting them was the conclusory opinion of the pros ecution’s gang expert. We disagree. The standard of appellate review for determining the sufficiency of the evidence supporting an enhancement is the same as that applied to a conviction. ( People v. Wilson (2008) 44 Cal.4th 758, 806; People v. Mejia (201 2) 211 Cal.App.4th 586, 614.) And l ike a conviction lacking substantial evidentiary support, a true finding on a gang enhancement that is not supported by substantial evidence violates a defendant’s federal and state constitutional rights and must be reve rsed. ( People v. Ochoa (2009) 179 Cal.App.4th 650, 656

– 657.) “In order to prove the elements of the criminal street gang enhancement, the prosecution may, as in this case, present expert testimony on criminal street gangs.” ( People v. Hernandez (2004) 33 Cal.4th 1040, 1047

– 1048.) “ ‘Expert opinion that15

particular criminal conduct benefited a gang’ is not only permissible but can be sufficient to support [a] gang enhancement.” ( People v. Vang (2011) 52 Cal.4th 1038, 1048.) Appellants observe that expert testimony that is unsupported by any evidence that the crime was gang

- related is insufficient to support a gang enhancement. ( People v.
Ochoa
, supra , 179 Cal.App.4th at p. 657.) Relying on the court’s reversal of the gang
enhancement for insufficient evi dence in People v. Ramon (2009) 175 Cal.App.4th 843, 849, 851, 853 , appellants contend that reversal is required here, where the “actual, direct evidence shows only offenses committed by gang members, not that the offense[s] were committed with the specifi c intent to benefit the gang or that the offenses had any gang

related purpose whatsoever.” But appellants’ argument ignores the evidence upon which the trial court was entitled to rely that supported its fi ndings on the gang enhancement. There are two “p rongs” to the gang enhancement under section 186.22, subdivision (b)(1). ( People v. Albillar (2010) 51 Cal.4th 47, 59 ( Albillar ).) The first prong requires that the prosecution prove the underlying felony was “gang

- related.” ( Id

. at p. 60; People v. Gar deley (1996) 14 Cal.4th 605, 622.) The second prong “requires that a defendant commit the gang

- related felony ‘with the specific intent to promote, further, or assist in any cri minal conduct by gang members.’ ” 10 ( Albillar , at p . 64; § 186.22, subd. (b)(1 ).)
S ection 186.22, subdivision (b)(1) provides three alternative s for establishing the first prong

— that the underlying offense was “gang

- related

. ” The offense may be

10 “ In addition, the prosecution must prove that the gang (1) is an ongoin g association of three or more persons with a common name or common identifying sign or symbol; (2) has as one of its primary activities the commission of one or more of the criminal acts enumerated in the statute; and (3) includes members who either indiv idually

or collectively have engaged in a ‘ pattern of criminal gang activity ’ by committing, attempting to commit, or soliciting two or more of the enum erated offenses (the so

- called

‘ predicate offenses ’ ) during the statutorily defined period. (§ 186.22, subds. (e) and (f).) ” ( People v. Gardeley
, supra , 14 Cal.4th at p. 617.) Appellants’ challenge here goes only to the sufficiency of the evidence in support of the “gang

- related” and specific intent elements.16

committed: (1) for the benefit of a gang; (2) at the direction of a gang; or (3) in

ass ociation with a gang. (See Albillar
, supra , 51 Cal.4th at pp. 59

– 60.) Because the first prong is worded in the disjunctive, a gang enhancement may be imposed without evidence of any benefit to the gang so long as the crime was committed in association
wi th or at the direction of another gang member. ( People v. Leon (2008) 161 Cal.App.4th 149, 162; People v. Morales (2003) 112 Cal.App.4th 1176, 1198 .) T he first

prong therefore may be established with substantial evidence that two or more gang
members com mitted the crime together, unless there is evidence that they were “on a frolic and detour unrelated to the gang.” ( People v. Morales
, supra , 112 Cal .App. 4th at

p. 1198; see also Albillar
, supra , 51 Cal.4th at pp. 61

– 62 .)
The record in this case amply sup ports the trial court’s finding that appellants
committed the underlying offenses as gang members acting in association, thus satisfying
the “gang

- related” prong of the statute. (See Albillar
, supra , 51 Cal.4th at p. 62 [“defendants came together as gang members to attack [the victim] and, thus
, . . . they committed these crimes in association with the gang”]; People v. Morales
, supra , 112 Cal.App.4th at p. 1198 [“the jury could reasonably infer the requisite association from the very fact that defendant c ommitted the charged crimes in association with fellow gang members”].)
T he prosecution presented s ubstantial evidence that all three appellants were active members of STGH. They all had STGH tattoos. And the circumstances of the August 18, 2011 traffic stop involving Nunnery and Weddington were consistent with active STGH gang membership. T he burglary and attempted burglaries represented a signature crime of STGH, known as “floccin ’
, ” i n which Crip gang members leave their territory in the southern part of Los Angeles to commit daytime burglaries of residences in the San Fernando Valley suburbs. Indeed, the burglary in this case followed the exact pattern of the typical “floccin’” burglary depicted in the YouTube video , wherein the perpetrators commit a daytime break

- in to steal jewelry and other small items and flee in a getaway car. T here was no evidence to suggest the “floccin’” here constituted a “frolic
and detour” distinct and independent of the criminal activities of the gang.17

The fact that these three gang members came together to commit these crimes also satisfies the second prong of section 186.22, subdivision (b)(1), that the “defendant commit the gang

- related felony ‘with the specific intent to promote, further, or assist in any cri minal cond uct by gang members.’ ” ( Albillar
, supra , 51 Cal.4th at p. 64.) “There is no statutory requirement that this ‘criminal conduct by gang members’ be distinct from the charged offense, or that the evidence establish specific crimes the defendant intended

to assist his fellow gang members in committing.” ( Albillar
, supra , at p. 66; People v. Vazquez (2009) 178 Cal.App.4th 347, 354.) Indeed, as our Supreme Court has held, “if
substantial evidence establishes that the defendant intended to and did commit the charged felony with known members of a gang, the jury may fairly infer that the defendant had the specific intent to promote, further, or assist criminal conduct by those gang members.” (

Albillar
, supra , 51 Cal.4th at p. 68.) Contrary to appellants’ asser tion, the expert’s testimony in this case was not merely the expert’s unsubstantiated opinion about how the gang determination should be made. Rather, t he expert’s opinion was support ed by evidence concerning the manner in
which these crimes were carried out and appellants’ active gang membership.
A ppellants’ substantial evidence challenge to the trial court’s gang enhancement
determination is without merit.
III. Appellants’ Convictions for Evading a Peace Officer in Willful Disregard for Safety Find Sub s tantial Evidentiary Support in t he
Record Neither Weddington nor Nunnery was alleged to have been driving the Sebring at any time on September 26, 2011. Appellants therefore contend the evidence is insufficient to support Weddington ’s and Nunnery’s convi ction s on count 4 for evading a peace officer in a willful or wanton disregard for safety . We disagree. To establish a violation of Vehicle Code section 2800.2, subdivision (a), the prosecution was required to prove that while driving a vehicle in a willf ul or wanton disregard for the safety of persons or property, the appellants fled or attempted to elude a police officer pursuing in a vehicle . (Veh. Code, § 2800.2, subd. (a); People v. Sewell18

(2000) 80 Cal.App.4th 690, 695, disapproved on another ground in People v. Howard (2005) 34 Cal.4th 1129, 1139, fn. 5; CALCRIM No. 2181.) “ ‘ “ Wantonness includes the
elements of consciousness o f one’ s conduct, intent to do or omit the act in question, realization of the probable injury to another, and reckless dis regard of consequences. ” [Citation.]

. . . The word “ wil l ful ” in th is connection means “ intentional ” [citations]. The intention here referred to relates to the disregard of safety, etc., not merely to the act done in disregard thereof.’ ” ( People v. Sch umacher (1961) 194 Cal.App.2d 335, 340.) Vehicle Code section 2800.2, subdivision (b) further provides that “a willful or wanton disregard for the safety of persons or property includes, but is not limited to, driving while fleeing or attempting to elude a pursuing peace officer during which time either three or more violations that are assigned a traffic violation point count under [Vehicle Code] Section 12810 occur, or damage to property occurs. ”
The prosecution in this case presented alternative theorie s to establish the charge of evasion against Weddington and Nunnery : T he evasion was a natural and probable consequence of a burglary aided and abetted by Weddington and Nunnery, or a natural and probable consequence of a burglary that appellants conspire d to commit. At the heart of the natural and probable consequences doctrine lies reasonable foreseeability. Our Supreme Court has explained: “ ‘ A person who knowingly aids and abets criminal conduct is guilty of not only the intended crime [target offens e] but also of any other crime the perpetrator actually commits [nontarget offense] that is a natural and probable consequence of the intended crime. The latter question is not whether the aider
and abettor actually foresaw the additional crime, but wheth er, judged objectively, it was reasonably foreseeable. [Citation.]’ [Citation.] Liability under the natural and probable consequences doctrine ‘ is measured by whether a rea sonable person in the defendant’ s position would have or should have known that t he charged offense was a reasonably foreseeable consequenc e of the act aided and abetted.’ ” ( People v. Medina (2009) 46 Cal.4th 913, 920 ( Medina ) ; People v. Mendoza (1998) 18 Cal.4th 1114, 1133; People v. Prettyman (1996) 14 Cal.4th 248, 260

– 262.)19

The hi gh court continued: “ ‘[A]lthough variations in phrasing are found in decisions addressing the doctrine

— “probable and natural,” “natural and reasonable,” and “reasonably foreseeable”

— the ultimate factual question is one of foreseeability.’ [Citation.] T hus, ‘ “ [a] natural and probable consequence is a foreseeable

consequ ence

. ” ’ ” ( Medina
, supra , 46 Cal.4th at p. 920; People v. Coffman and Marlow (2004) 34 Cal.4th 1, 107.) “ A reasonably foreseeable consequence is to be evaluated
under all the factual c ircumstances of the individual case [citation] and is a factual issue to be resolved by the jury. ” ( Medina
, supra , 46 Cal. 4th at p. 920 .) The natural and probable consequences doctrine applies with equal force to cases involving the vicarious liability of conspirators for a crime committed in furtherance of the conspiracy. ( People v. Prieto (2003) 30 Cal.4th 226, 249

– 250 .) “One who conspires with others to commit a felony is guilty as a principal. (§ 31.) ‘ “Each member of the conspiracy is liable for the acts of any of the others in carrying out the common purpose, i.e., all acts within the reasonable and probable consequences of the common unlawful design.” ’ ” ( In re Hardy (2007) 41 Cal.4th 977, 1025

– 1026.) “ ‘[E]ach conspirator is bound by the act s of a confederate in furthering the common design of the conspiracy by escaping or resisting arrest, even though such acts may have been “ dictated by the exigencies of the momen t. ” ’ ” ( People v. Garewal (1985) 173 Cal.App.3d 285, 296, quoting People v. Smith (1966) 63 Cal.2d 779, 794.) Appellants acknowledge that a rational jury could find it reasonably foreseeable that the driver of a vehicle fleeing after the commission of a felony might attempt to evade police. They nevertheless maintain it was not f oreseeable that, while evading the police, Bashir would drive the car in willful or wanton disregard for the safety of persons

or p roperty. In support of their claim, appellants assert that Bashir’s reckless driving was not foreseeable “based on the plann ing, the accomplished burglary, or the previous encounter with the police on September 7, 2011.” To the c ontrary, there was abundant evidence that Nunnery and Weddington expected Bashir to drive the getaway vehicle in whatever manner was necessary to elud e the police and avoid apprehension, regar d less of

any danger to persons or property. Given appellants’ flight from police after the20

attempted burglary on September 7, it was certainly predictable that Bashir would again attempt to evade police after the burglary on September 26. During the police chase that
followed th e burglary of the Fong residence
, all of the occupants of the vehicle threw stolen property and other items out of the car, some of which hit one of the pursuing police cars. Moreover, des pite the lack of evidence that Nunnery and Weddington were directing or controlling the manner in which Bashir was driving, the evidence established that both men took advantage of the crash that resulted from Bashir’s reckless driving by exiting t he vehic le and fleeing on foot. Appellants’ argument also ignores the principle that “ ‘to be reasonably foreseeable “[t]he consequence need not have been a strong probability; a possible consequence which might reasonably have been contemplated is enough.” ’ ” ( Medina
, supra , 46 Cal.4th at p. 920.) Given the substantial evidence that execution of the common design included the use of a getaway car to avoid apprehension, Weddington and Nunnery certainly could have foreseen Bashir’s reckless driving in evading the police . T heir convictions on count 4 are supported by substantial evidence.
IV. The Trial Court Had No Sua Sponte Duty to Instruct the Jury on the Lesser Included Offense of Misdemeanor Evading Appellants assert that although Bashir may have driven the Sebring with willful or wanton disregard for safety, there was sufficient evidence that the offenses as committed by Weddington and Nunnery w ere less than that charged to warrant instruction on the
lesser included offense of misdemeanor evasion. (Veh. Cod e, § 2800.1; People v. Springfield (1993) 13 Cal.App.4th 1674, 1680

– 1681.) According to appellants, the trial court erred in failing to instruct, sua sponte, on the lesser included offense of misdemeanor evading. We disagree. Appellants did not request a n instruction on misdemeanor evading. Nevertheless,

“ ‘ “[i]t is settled that in criminal cases, even in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the
evidence. [Citations.] The general principles of law governing the case are those principles closely and openly connected with the facts before the court, and w hich are21

necessary for the jury’ s understanding of the case.” [Citation.] That obligation has been held to include g iving instructions on lesser included offenses when the evidence raises a question as to whether all of the elements of the charged offense were present [citation], but not when there is no evidence that the offense was less than that charged. ’ ” ( People
v. Breverman (1998) 19 Cal.4th 142, 154.) However, “[s] peculation is insufficient to require the giving of an instruction on a lesser included offense.” ( People v. Mendoza (2000) 24 Cal.4th 130, 174.) Indeed , “the
existence of ‘ any evidence, no matter ho w weak’ will not justify instructions on a lesser included offense, but such instructions are required whenever evidence that the defendant is guilty only of the lesser offense is ‘ substantial enough to merit consideration’ by the jury. [Citations.] ‘ Sub stantial evidence ’ in this context is ‘ “evidence from which a jury composed of reasonable [ persons] could

. . . conclude[] ” ’ that the lesser offense, but not the greater, was committed. ” ( People v. Breverman
, supra , 19 Cal.4th at p. 162.) “[A]
lesser i ncluded instruction need not be given when there is no evidence that the offense is less than that charged.” ( People v. Mendoza
, supra , 24 Cal.4th at p. 174

. ) “It is well settled that ‘the trial court need not, even if requested, instruct the jury
on the existence and definition of a lesser and included offense if the evidence was such that the defendant, if guilty at all, was guilty of the greater offense.’ ( People v. Kelly (1990) 51 Cal.3d 931, 959.)” ( People v. Trimble (1993) 16 Cal.App.4th 1255, 1260 .) Here, there was no evidence that appellants Weddington and Nunnery committed misdemeanor evading but not felony evading. Thus, the evidence did not warrant an
instruction on the lesser included offense. The only distinction between the crimes of felon y and misdemeanor evading is that in committing the felony, the pursued vehicle is driven “ ‘in a willful or wanton disregard for the safety of persons or property.’ ” ( People v. Springfield
, supra , 13 Cal.App.4th at p. 1 680; Veh. Code, § 2800.2 .) The cr ime of misdemeanor evading is22

accomplished without willful or wanton disregard for safety. (Veh. Code, § 2800.1.) 11 Thus, if the evidence shows that the defendant “fle [ d] or attempt [ ed ] to elude a pursuing peace officer in violation of [Vehicle Code] S ect ion 2800.1 and the pursued vehicle [was] driven in a willful or wanton disregard for the safety of persons or property,” the defendant is guilty of felony, not misdemeanor evading. (Veh. Code, § 2800.2.) The fact that Weddington and Nunnery were passenger s in the car is irrelevant to the question of whether the vehicle was driven “ ‘in a willful or wanton disregard for the safety of persons or property.’ ” ( People v. Springfield
, supra , 13 Cal.App.4th at p. 1680; Veh. Code, § 2800.2.) Only one person cou ld drive the getaway car at a time, and that person was Bashir. However, despite the lack of evidence that Nunnery or Weddington directly controlled the vehicle, the evidence supported an inference that both men
contributed to and took full advantage of B ashir’s reckless driving in heavy traffic by throwing money, coins, jewelry, clothing, and video game cartridges from the getawa y car’s windows, and then exiting the vehicle and fleeing on foot after the crash. Indeed, appellants’ complete disregard for t he safety of persons or property is exemplified by Nunnery’s battery on the police officer as he was being apprehended following the crash. Weddington ’s and Nunnery’s own conduct during the evasion and after the getaway car crashed demonstrated that if th ey were guilty of any crime of eva ding at all , it was the felony and not the misdemeanor: A s full participants in the efforts to elude the police and avoid apprehension, they indisputably committed the crime “in a willful or wanton disregard for the safet y of persons or pro perty.” (Veh. Code, § 2800.2.)
The dissent asserts that because substantial evidence support ed a finding “ that it was reasonably foreseeable that Bashir would flee from and attempt to evade police
officers , but not with wanton and willf ul disregard for persons and property,” instructions

11 Vehicle Code section 2800.1 provides in rele vant part: “Any person who, while operating a motor vehicle and with the intent to evade, willfully flees or otherwise attempts to elude a pursuing peace officer’s motor vehicle, is guilty of a misdemeanor.” ( Id. , subd. (a).)23

on the lesser offense were required. (C onc. & dis. opn. at p. 8
, post .) In support of this conclusion, the dissent speculates that the greater risk to the occupants of the getaway

car , increased punish ment if they were caught , and the low probability of actually getting

away reduced the foreseeability that Bashir would drive recklessly in order to avoid apprehension aft er the burglary. ( Ibid. ) Thus, according to the dissent, “reckless driving
from the scene of the crime was not inevitable.” ( Ibid. ) However, no evidence supports the dissent’s supposition, and, as set forth above, an instruction on a lesser included offense is not required on the basis of mere s peculati on

. ( People v. Mendoza
, supra , 2 4 Cal.4th at p. 174

. ) Furthermore, no instruction on a lesser included offense is justified simply on the basis of “ ‘ any evidence, no matter how weak.’ ” ( People v. Breverman
, supra , 19 Cal.4th at p. 162.) Finally
, it bears repeating that no instructio nal duty arises if
the evidence establishes that the defendant, if guilty at all, was guilty of the greater
offense. ( People v. Kelly
, supra , 51 Cal.3d at p. 959; People v. Trimble
, supra , 16 Cal.App.4th at p. 1260.) Here, the evidence did not warrant an instruction on the lesser offense because
there was simply no evidence that appellants Weddington and Nunnery committed misdemeanor evading but not felony evading. In the absence of substantial evidence the offense was anything less than that charged, the trial court had no sua sponte duty to instruct the jury on the lesser included offense of misdemeanor evading

. V. Appellants Have Forfeited Any Claim on Appeal Regarding the Trial
Court’s Exercise of Its Sentencing Discretion as to Count 8
Pursuant to se ction 186.22, subdivision (d), the trial court imposed and stayed a felony sentence on count 8, possessio n of burglary tools. A ppellants contend that the trial

court appears to have been unaware that it had discretion to impose a misdemeanor rather
than a felony sentence on that count . Appellants thus maintain that remand is required to enable the trial court to exercise its discretion regarding their sentences on the count 8
conviction. However, b ecause appellants failed to request that the trial court treat the conviction for possession of burglary tools as a misdemeanor and did not object to the trial court’s discretionary sentencing choice, we conclude appellants’ claim is forfeited

.24

( People v. Scott (1994) 9 Cal.4th 331, 356.) In any event, the rec ord does not support appellants’ contention that the trial court was unaware of the scope of its sentencing
discretion . R emand is therefore unwarranted in this case.
In both of its sentencing memoranda, the prosecution stated that section 186.22,
subdivis ion (d) “transforms the misdemeanor PC section 466 into a felony with a 1, 2, or 3 year range.” Neither Weddington nor Bashir filed a sentenc ing memorandum. Nunnery filed two sentencing memoranda , but did not address the trial court’s discretion
under se ction 186.22, subdivision (d) to sentence count 8 as a misdemeanor or a felony

. At their sentencing hearings, none of the appellants requested that the trial court sentence
count 8 as a misde meanor rather than as a felony. “In order to encourage prompt de tection and correction of error, and to reduce the number of unnecessary appellate claims, reviewing courts have required parties to raise
certain is sues at the time of sentencing. In such cases, lack of a timely and meaningful objection forfeits or waive s the claim. ” ( People v. Scott
, supra , 9 Cal.4th at p. 351; People v. Gonzalez (2003) 31 Cal.4th 745, 748 [“a party in a criminal case may not challenge the trial court’s discretionary sentencing choices on appeal if that party did not object at trial”]; see also People v. Welch (1993) 5 Cal.4th 228, 234

– 235.) In this case, appellants had ample opportunity to contest the prosecutor’s statement in the sen tencing
memoranda that count 8 should be sentenced as a felony pursuant to section 186.22
, subdivision (d), but failed to do so. At the sentencing hearing, when the prosecutor advocated for felony sentencing on count 8, and the court indicated its intent to impose the high term, appellants remained silent. Their claim on appeal is therefore forfeited.
In any event, the record does not support appellants’ contention that the trial court was unaware of its discretion to impose a misdemeanor as opposed to a felony sentence for count 8. Appellants point to the trial court’s apparent confusion over the imposit ion of the sentence on count 8 during Nunnery’s sentencing hearing as evidence that the court
was unaware of its discretion and thus failed to exercise it. While the colloquy during Nunnery’s hearing leaves some ambiguity about the court’s understanding o f its sentencing choices under section 186.22, subdivision (d), the court’s statements during25

Bashir’s sentencing hearing reveal the court was fully aware of its sentencing discretion and purposefully exercised it: “Then that takes us back to count eight, the 466, which is a misdemeanor burglary tools; and it was called to my attention that 186.22 (b) [ sic ] converts that into a felony, and it could either be one year misdemeanor

. . . with no less than 180 in the county jail or one, two or three; and I’m i mposing the high term of three

years because of the gang allegation under the (d) section and under 654 I am imposing it and staying it

. . . . ” (Italics added.) On appeal, we presume that the trial court followed established law and thus properly exercis ed its discretion in sentencing a criminal defendant. ( See, e.g., People v. Coddington (2000) 23 Cal.4th 529, 644 [reviewing court presumes trial court knew and applied correct statutory and case law], overruled on another ground in Price v. Superior
Cour t (2001) 25 Cal.4th 1046, 1069, fn. 13; People v. Esparza (2015) 242 Cal.App.4th
726 , 742 .) Thus, we may not assume the court was unaware of its discretion simply
because it failed to e xplicitly refer to its alternat ive sentencing choices. ( People v. Bol ian (2014) 231 Cal.App.4th 1415, 1421; People v. Fuhrman (1997) 16 Cal.4th 930, 933,
944

– 947 .)

DISPOSITION The judgment s are affirmed

. The trial court is directed to correct Nunnery’s abstract of judgment to reflect imposition of a one

- year consecutive s entence on count 5, for an aggregate term of 14 years 4 months in state prison, and forward a corrected copy to the Department of Corrections and Rehabilitation.
CERTIFIED FOR PUBLICATION.

LUI, J.
I concur:

JOHNSON, J.ROTHSCHILD, P. J., conc urring and dissenting:

I concur in parts II, III, and V of the majority’s discussion , I concur in part and respectfully dissent in part to part I, and I respectfully dissent from part IV

. I. Attempted Burglary A jury convicted defendants of burglary of a house on Labrador Street and attempted burglary of houses on Gothic Avenue, Gerald Avenue, and Tupper Street.
The majority affirms all of the convictions. I, however, believe that the evidence is insufficient to support the jury’s verdicts that defendant s are guilty of the three attempted burglaries. I would therefore reverse the convictions for attempted burglary on counts 9 (Gothic Avenue), 10 (Gerald Avenue), and 11 (Tupper Street). The defendants drove from the southern part of Los Angeles to the Sa n Fernando Valley. After reaching the Northridge area, they drove slowly in and out of residential streets for about an hour and a half, stopping for a minute or two outside several houses. Bashir was driving, Nunnery was in the front passenger seat, and Weddington was in a rear seat. When they stopped outside a residence on Gothic Avenue, they waited in the
car for about five minutes. Bashir then walked to the front door and knocked while Weddington and Nunnery waited in the car. When no one answered, Bashir returned to
the car. Defendants then drove to a house on Gerald Avenue. Bashir knocked on the door and, when no one answered, peeked over a side gate. She returned to the car where defendants waited for a couple minutes. They then drove to a ho use on Citronia Street,
where Bashir knocked on the door and returned to the car when no one answered. 1 They remained there for a couple minutes, then drove to a house on Tupper Street, where Bashir again knocked on the door, peeked over a gate, and retur ned to the car. After waiting for about five minutes, defendants drove to a residence on Labrador Street.

1 T he information included a count alleging that d efendants attempted to burgle

a house on Citronia Street, based on knocking on the front door of the house. The court dismissed the count pursuant to Penal Code section 1118.1 for reasons not apparent in the record

.2

Bashir knocked on the door to the Labrador Street house, looked over the fence, returned to the car, and waited with the others for about five minute s. Bashir remained
in the car while Weddington exited the car and entered the backyard of the house. Within a couple minutes, Nunnery joined Weddington in the backyard. They then entered the house through a back window. About 10 minutes later, the two left the house via the front door carrying property taken from the house. The majority correctly states the general principles concerning the law of attempt, which distinguishes preparation to commit a crime from acts that go beyond mere preparation and c onstitute “ ‘ “ ‘some appreciable fragment of the crime.’ ” ’ [Citation.]” (Maj. opn. ante , at p. 8.) As our Supreme Court has explained, the required act “ ‘ must reach far enough towards the accomplishment of the desired result to amount to the

commenc ement of the consummation .’ ” ( People v. Miller (1935) 2 Cal.2d 527, 530 ( Miller ).) The “consummation” of a burglary occurs when the perpetrator enters a building with the intent to commit larceny or any felony. (Pen. Code, § 459; Magness v. Superior Co urt (2012) 54 Cal.4th 270, 273 .) “Commencement” in this context is the point at which the perpetrator’s actions are no longer equivocal and it appears that the
crime “ will be consummated unless interrupted by circumstances independent of the will
of the a ttempter. ” ( People v. Buffum (1953) 40 Cal.2d 709, 718 ; see also People v. Dillon (1983) 34 Cal.3d 441, 4 55 [“when the acts are such that any rational person would
believe a crime is about to be consummated absent an interven ing force, the attempt is
unde r way ”]; People v. Murray (1859) 14 Cal. 159, 160 [the attempt “must be manifest by acts which would end in the consu mmation of the particular offens e, but for the intervention of circumstances indep endent of the will of the party ”].)
In Miller
, supra , 2 Ca l.2d 527, the Supreme Court emphasized that the line between preparation and attempt is crossed only when the perpetrator’s conduct “cease[s] to be equivocal.” ( Id. at p. 531.) In that case, the defendant threatened in the presence
of others to kill Albe rt Jeans because Jeans had allegedly “been annoying his wife” and
“the authorities would not take charge of the matter.” ( Id. at p. 529.) That afternoon, Jeans was working at a ranch owned by the town constable. Defendant went to the ranch3

and, holding a rifle, walked toward both the constable and Jeans. The constable was
250 or 300 yards away and Jeans was about 30 yards behind the constable. After walking about 100 yards toward them, the defendant loaded his rifle, but never lifted it to take
aim. J eans ran off at a right angle to the defendant’s line of approach. The defendant continued walking toward the constable, who took the defendant’s gun without
resistance. ( Ibid. )
The Miller court explained that one does not commit a “direct act, however slight, toward consummation of the intended crime” so long as the person’s conduct remains equivocal: “It is that quality of being equivocal that must be lacking before the act becomes one which may be said to be a commencement of the commission of the

cr ime, or an overt act, or before any fragment of the crime itself has been committed.” ( Miller
, supra , 2 Cal.2d at p. 531.) Applying this rule, the court reversed the defendant’s conviction for attempted murder, explaining that “up to the moment the gun w as taken from the defendant no one could say with certainty whether the defendant had come into the field to carry out his threat to kill Jeans or merely to demand his arrest by the constable.” ( Id. at p. 532.) Here, the defendants’ actions with respect to the houses were at least as equivocal as the defendant’s actions in Miller . Before deciding upon any house to burgle, defendants drove slowly through residential streets, stopping for a minute or two in front of several houses, looking for the right on e; when they identified a potential target, Bashir got out of the car to scout the house by knocking on the door and looking into the side yard; when she returned, the defendants remained in the car outside each house for several minutes apparently conside ring whether to break into that house or to continue their search. They rejected each house, not because something interfered with the execution of a burglary, but because, after considering each of the houses, they
themselves decided to look for another target. Thus, defendants’ scouting or casing
did not constitute an unequivocal commitment to breaking in to the houses: They might break into the house, but they might keep looking. In fact, defendants did not break into any of these houses and instead kept looking until they found what they considered a4

suitable target. After Bashir cased that house, she sat in the driver’s seat as the getaway driver. Weddington and Nunnery exited the car, approached the house, and broke in through a window. Thus, th eir particular modus operandi shows that, at the earliest,
the defendants unequivocally selected their target when the two men exited the car and walked onto the property of the house they actually burgled. I agree with the majority that our review require s t hat we consider the totality of the evidence presented, including the reasonable inferen ces drawn from the evidence,
in the light most favorable to the judgment. I also agree with the principle cite d by the majority that we “ ‘ “ ‘should not destroy th e practical and common

- sense administration
of the law with subtleties as to what constitutes preparat ion and what constitutes an act
done to ward the commission of a crime.’ ” ’ [Citation.]” (Maj. opn. ante , at p. 12.) Here, c ommon sense and the to talit y of the evidence point to one reasonable interpretation: Although defendants intended to break into one or more residences
in the San Fern ando Valley, they never decided to break into the Gothic Avenue,
Gerald Avenue, and Tupper Street houses, and, there fore, never moved beyond mere preparation as to those homes. Further, the cases upon which the majority rely are distinguishable. In People v. Prince (2007) 40 Cal.4th 1179, the defendant, who had previously entered several women’s homes to attack his v ictims, had been stalking Patricia Van. Van’s neighbor saw defendant looking into backyards in the area. The defendant knocked

on Van’s door and, when Van answered, asked for a person who did not live there. ( Id. at pp. 1202, 1257.) At that point, the observant neighbor approached defendant
from behind and “challenged him brusquely.” ( Id. at p. 1202.) The defendant then left.
The Supreme Court held that these facts were sufficient to constitute attempted burglary
because the defendant’s acts “ went be yond mere preparation but were frustrated by the vigilance of the victim’s neighbor

. ” ( Id. at p. 1257, italics added.) Here, by contrast,

no neighbor or other intervening force frustrated or interrupted the defendants’ plans; they simply moved on to scou t other houses.5

In People v. Superior Court (2007) 41 Cal.4th 1 ( Decker ) , the defendant entered into a contract with a man who agreed to kill the defendant’s sister. The defendant gave the man a down payment of $5,000, and “had effectively done all that h e needed to do

to ensure that” the sister would be killed. ( Id . at p. 14.) The hired killer, however, was

an undercover detective. “But for” that fact, the court explained, “it [was] likely that [the defendant’s] conduct would have resulted in the murde r” of his sister. ( Id. at p. 13.) Here, by contrast with Prince and Decker , the evidence does not show that the defendants had done all they needed to do to ensure a burglary would be executed. Nor was it the absence of an outside force that prevented a burglary of the houses. Rather,
it was the defendants’ own decision to keep looking for a target that prevented the burglaries.
In People v. Zaun (March 25, 2016, C078962) ___ Cal.App.4th ___ [2016 Cal.App. Lexis 225] ( Zaun ), four associates employed “[ t]heir normal approach” to committing burglaries: One of them would knock on the door of a residence and, if no one answered, they would “force the door open and steal what they could.” ( Id

. at *1].) When they tried this approach on two particular house s, a resident answered the door. The person who knocked asked if a certain person lived there or engaged in some conversation, then left. A jury convicted the defendant of attempted burglary of both
home s and the Court of A ppeal affirmed. According to t he Third District Court of Appeal, the jury could reasonably conclude that the “defendant and his associates had
the specific intent to commit burglary in each case, and the appearance of the [residents] at their respective doors served to interrupt the in tended crimes.” ( Id

. at *5

- *6].) Here,
unlike in Zaun , there is no evidence that the defendants’ intent to burgle was frustrated by the presence of unwanted occupants. Nor is there evidence that they would have consummated the crimes but for the presenc e of occupants in the houses. Rather,6

knocking and looking around was only part of their preparation, as demonstrated by their decision not to burgle the houses and to keep looking for another target. 2 The majority relies on the rule that “ ‘ “slight acts in furtherance of the design will constitute an attempt.” ’ [Citation s .]” (Maj. opn. ante , at p. 12.) The “slight acts” rule, however, “ still presupposes some direct act or movement in execution of the design, as distinguished from mere preparation .” ( Miller
, supra , 2 Cal.2d at p. 531 .) That is, the “slight” act must occur after equivocation has ceased and consummation of the crime
has commenced. ( Ibid. ) Because the defendants had engaged only in scouting or casing activities preparatory to a burgla ry, no act, slight or otherwise, had occurred beyond

mere preparation until after they selected the Labrador residence for their crime. I would therefore reverse the convictions for attempted burglary on counts 9, 10 and 11.
II. Duty to Instruct on Lesse r Included Offense of Misdemeanor Evading Under Vehicle Code section 2800.1, 3 “[a] ny person who , while operating a motor vehicle and with the intent to evade, willfully flees or otherwise attempts to elude a pursuing peace officer’ s motor vehicle, is guilt y of a misdemeanor .” If the driver of the
car also drives “ in a willful or wanton disregard for the safety of persons or property ,” the driver has violated section 2800.2, which can be punished as a felony. 4 (See People v. Springfield (1993) 13 Cal.App.4 th 1674, 1679

- 16 80 [t he “ only distinction between the

2 The evidence r egarding the September 7, 2011, incident at Elizabeth Barba ’s residence is a closer case. There, after Bashir knocked on the door and returned to the car, defendants drove to an alleyway behind the house. Weddington then g o t out of the car and appeared t o be approaching the back of the house when he saw a police officer , and then changed directions and returned to the car . This situation fits more closely to the facts in People v. Vizcarra (1980) 110 Cal.App.3d 858, and Zaun , supra ,

___ Cal.App.4th ___ [ 2016 Cal.App. Lexis 225] . Therefore, I would affirm the attempted burglary conviction on count 2.

3 Unless otherwise indicated, all subsequent statutory refere nces are to the Vehicle Code.

4 A violation of section 2800.2 is a so

- called wobble r because it can be punished

as a misdemeanor or a felony. ( People v. Statum (2002) 28 Cal.4th 682, 685

. )7

two crimes is that in committing the greater offense the defendant drives the pursued
vehicle ‘ in a willful or wanton disregard for the safety of persons or property. ’ ”].) The court instructed the jury as to the charge of violating section 2800.2 without also instructing the jury that it could find defendant guilty of the lesser offense of violating section 2800.1. I believe this was prejudicial error. As the majority states, a trial court has a duty t o instruct the jury sua sponte

“ ‘ “on lesser included offenses when the evidence raises a qu estion as to whether all
of the elements of the charged offense were present [cita tion], but not when there is no
evidence that the offense was less than that char ged. ” ’ ” ( Maj. opn. ante , at p. 21, quoting People v. Breverman (1998) 19 Cal.4th 142, 154 ( Breverman ) .) The lesser offense instruction must be given when substantial evidence could support a finding that the defendant is guilty of the lesser offense. ( Id . at p. 162.) It is undisputed that Bashir, the driver of the getaway car, drove the car with willful and wanton disregard for the safety of persons or property. Weddington and Nunnery, however, did not drive the car at all

— they were passengers. As th e majority states, they can nevertheless be liable for violating section 2800.2 if Bashir’s reckless driving was a natural and probable consequence of either their aiding and abetting of
the burglary or their conspiracy to commit the burglary. 5 (See Peopl e v. Croy (1985)
41 Cal.3d 1, 12, fn. 5 ; People v. Prettyman (1996) 14 Cal.4th 248, 261 .) As the majority concludes, “ ‘ “the ultimate factual question [under the natural and probable consequences doctrine] is one of foreseeability.” . . .’ [Citations.]” (Maj. opn. ante , at p. 19.) Foreseeability in this context is based on an objective standard; that is,

“ ‘ “ ‘whether a rea sonable person in the defendant’ s position would have or should

5 It is also possible that Weddington and Nunnery could be liable as direct aiders and abettors of Bashir’s criminal driving regardless of the natural and prob able consequences doctrine. If, for example, they actively encouraged or directed Bashir to drive with willful and wanton disregard for the safety of persons or property, they would be liable for the greater crime even if it was not a natural and probable consequence of the burglary. There is, however, no evidence of such encouragement or direction.8

have known that the charged offense was a reasonably for eseeable co nsequence of the

act aided and abetted. ’ ” ’ ” ( People v. Smith (2014) 60 Cal.4th 603, 611 .) I agree with the majority that it was reasonably foreseeable to one in Weddington’s and Nunnery’s positions that Bashir, as the driver of the getaway car,
would f lee from and attempt to evade police officers following their burglary. I also agree that there was sufficient evidence from which the jurors could conclude that it was reasonably foreseeable that Bashir would do so with willful and wanton disregard for

p ersons and property. I thus concur in the majority’s substantial evidence analysis and the result in part III of the majority opinion. In determining whether to instruct on the lesser offense of misdemeanor evading, however, the issue is not whether sub stantial evidence supports the verdict on the greater offense, but whether substantial evidence also supports the lesser offense: That is, that
it was reasonably foreseeable that Bashir would flee from and attempt to evade police officers, but not with wa nton and willful disregard for persons and property. I believe substantial evidence for that conclusion is found in the record. The greater crime involves greater risk to the occupants of the getaway car (as well as to persons in their path), increased p unishment, and little chance of success. Thus, reckless driving from
the scene of the crime was not inevitable. Indeed, the facts are susceptible of either crime and the jury should have been permitted to determine which, if any, crime the passengers

com mitted. The majority points out that Weddington and Nunnery “took full advantage of Bashir’s reckless driving” as they threw items out of the car’s windows and ultimately fled on foot after the car crashed. (Maj. opn. ante , at p. 22.) The majority also s tates that Nunnery’s disregard for safety of person or property is evidenced by his battery on the apprehending officer. ( Ibid. ) These facts, however, shed no light on the question
of whether, from an objective point of view, persons in the defendants’ p ositions as participants in a burglary would reasonably foresee Bashir’s reckless driving.9

Because the evidence was sufficient to support a conclusion that misdemeanor evading, and not felony evading, was a foreseeable consequence of the defendants’ burg lary, the court erred in failing to instruct the jury with the lesser offense. Further, because it is a close question whether a natural and probable consequence of the burglary was the greater or lesser crime, the error was prejudicial. (See Breverman , supra , 19 Cal.4th at p. 149 .) I would therefore reverse Weddington’s and Nunnery’s convictions for felony evading.

ROTHSCHILD, P. J.