Opinion
E065641
08-07-2017
THE PEOPLE, Plaintiff and Respondent, v. ANTHONY DEWAYNE SCOTT, Defendant and Appellant.
Ava R. Stralla, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal, and Kristen Ramirez, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. FWV1503830) OPINION APPEAL from the Superior Court of San Bernardino County. Ingrid Adamson Uhler, Judge. Affirmed with directions. Ava R. Stralla, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal, and Kristen Ramirez, Deputy Attorneys General, for Plaintiff and Respondent.
I
INTRODUCTION
Defendant Anthony Dewayne Scott drove the getaway car for an armed second degree robbery committed by another person. (Pen. Code, § 211.) A jury convicted defendant on two counts: 1) for aiding and abetting and 2) as an accessory after the fact. The court sentenced defendant to a determinate prison term of 11 years.
All further statutory references are to the Penal Code. --------
On appeal, defendant argues his conviction for accessory after the fact must be reversed because he cannot be convicted as a principal and accessory to the same crime. We agree with the parties that defendant's one-year prison prior in case No. FSB804234 should be stricken not stayed. Subject to that modification, we affirm the judgment.
II
STATEMENT OF THE CASE
At 1:30 a.m., on October 9, 2015, Juan C. was at a Fontana USA gas station inflating his car's tires. Another person was inflating a bike's tires. When Juan C. felt a hard object against the back of his head, he turned and saw a man, wearing black pants and a hooded dark jacket, and pointing a black handgun at him. The person on the bike took off. The man told Juan C. not to look at him or he would kill him.
The man took Juan C.'s wallet and cell phone from his back pockets. The wallet contained a Mexico ID card, a ring, $65, and two credit cards. The cell phone had a picture of Juan's daughter on the home screen. The man said, "Don't move. I'm gonna kill you," and left. Then he returned and warned, "If you try to follow me or call the police, I'm going to kill you."
Juan C. waited a few seconds before driving away. In his rear view mirror, Juan C. spotted the robber's feet near a tree and a white wall behind the gas station. Juan C. also saw a stopped red car. A man inside was wearing a dark hooded jacket. The male driver's face was obscured. Juan C. observed the robber entering the red car. As Juan C. passed the red car, he reported the robbery to the police, using another cell phone. Juan C. remained on the phone, describing the direction he observed the red car traveling.
Fontana Police Officer Hackett made contact with Juan C. Juan C. described the robbery suspect as a Black male adult, 20 to 30 years old, 5 feet 7 inches, 150 pounds, and wearing a gray sweatshirt.
Another police officer, Ancona, received the report of an armed robbery at the USA gas station and a description of a small red sedan. The officer observed a red Toyota with a Black male driver. Ancona followed the Toyota into the apartment complex. As the officer exited the patrol vehicle, he heard a sound like an object hitting the chain link fence and falling on the ground.
Ancona pointed his weapon at the driver, later identified as defendant, and ordered him to raise his hands and remain in his vehicle. Defendant was cooperative and made no attempt to flee. Near the fence, Ancona found a .45-caliber magazine for a handgun and two loose .45-caliber bullets. In the car, Ancona found a wallet with Juan C.'s identification and numerous cell phones, including one belonging to Juan C. A dark gray hoodie with cuffed sleeves was on the passenger seat. No gun was found.
In a recorded interview, defendant said he had been in San Bernardino most of the evening until he decided to visit a woman in the apartment complex although he could not provide her name. He said he had driven to Rialto and then to Fontana. He did not need to obtain gas having done so earlier. Defendant claimed he did not have a passenger in the car when driving between Rialto and the apartment complex. He said his friends and family were always in and out of his car and that he did not know how or why Juan C.'s wallet and cell phone were in the Toyota.
Police conducted an area check but did not locate the robbery suspect or a gun. Juan C. identified the red car as the one he had seen earlier. Juan C. was unable to identify defendant as the driver of the red car. Defendant was not the man who robbed him at the gas station.
Defendant did not testify.
III
DUAL LIABILITY
Defendant's two offenses were based on his initial act of driving the getaway car and his subsequent act of discarding the loaded magazine. Defendant maintains that, although aiding and abetting the crime of robbery and the crime of accessory after the fact were based on factually separate conduct, dual liability cannot be imposed because the underlying robbery continued until the police officer stopped defendant in the apartment parking lot. However, it was after stopping defendant that the officer discovered the loaded magazine near the cinder block wall and found the stolen wallet and cell phone in the vehicle.
"In California both perpetrators and aiders and abettors are equally liable as principals. . . . '"A person aids and abets the commission of a crime when he . . . , (i) with knowledge of the unlawful purpose of the perpetrator, (ii) and with the intent or purpose of committing, facilitating, or encouraging commission of the crime, (iii) by act or advice, aids, promotes, encourages or instigates the commission of the crime." [Citations.]' (People v. Hill (1998) 17 Cal.4th 800, 851; see Pen. Code, § 31.)
"On the other hand, a person is an accessory to a crime when 'after a felony has been committed, [he] harbors, conceals or aids a principal in such felony, with the intent that said principal may avoid or escape from arrest, . . . having knowledge that said principal has committed such felony . . . .' (Pen. Code, § 32; see People v. Riley (1993) 20 Cal.App.4th 1808, 1816; People v. Mouton (1993) 15 Cal.App.4th 1313, 1324.) [¶] . . . [¶]
"California cases are divided over whether to adopt the rule that a person cannot be convicted or sentenced as both a principal and an accessory to the same felony. Several cases have expressed approval of the rule, though on varying grounds and largely in dicta. (People v. Prado (1977) 67 Cal.App.3d 267, 271-274; People v. Francis (1982) 129 Cal.App.3d 241; People v. Laskiewicz (1986) 176 Cal.App.3d 1254, 1256.) . . . Two other cases, however, have expressed disapproval of that rule, although again largely in dicta. (People v. Riley, supra, 20 Cal.App.4th at pp. 1813-1817; People v. Mouton, supra, 15 Cal.App.4th at pp. 1321-1325.) Only in Riley did the Court of Appeal actually affirm separate convictions (and imposition of separate concurrent sentences) as both a principal and an accessory to the same crime. (People v. Riley, supra, 20 Cal.App.4th at pp. 1813-1817.)" (In re Eduardo M. (2006) 140 Cal.App.4th 1351, 1357-1359.)
In People v. Mouton, supra, 15 Cal.App.4th 1313, defendant aided and abetted a murder and later concealed the shooter's jacket and gun and gave false statements to the police. (Id. at p. 1324.) Although the defendant argued he could not be convicted of both, the Court of Appeal held: "[T]here is no bar to conviction as both principal and accessory where the evidence shows distinct and independent actions supporting each crime." (Id. at p. 1324.) The court further noted, "Although defendant was technically convicted of being an accessory to his own crime, in substance he was convicted for two different sets of actions." (Id. at pp. 1324-1325.) In People v. Riley, supra, 20 Cal.App.4th at page 1812, the defendant was convicted of second degree murder as the driver of a truck in which a passenger shot and killed a person and of being an accessory to a murder by giving his business partner the murder weapon the next day, either for disposal or safekeeping. In affirming both convictions, the Court of Appeal held: "Once the murder was completed, defendant's further acts of attempting to dispose of the murder weapon were entirely separate and distinct, and served a further and different purpose. The imposition of separate liability for these distinct and independent actions was proper." (Id. at pp. 1816-1817.)
Defendant relies heavily on In re Malcolm M. (2007) 147 Cal.App.4th 157, a case in which the juvenile court made true findings that Malcolm both possessed an assault weapon as an aider and abettor and was an accessory after the fact to possession of the same assault weapon. (Id. at p. 164.) Malcolm had been present in a vehicle while another person possessed an assault rifle and Malcom then attempted to conceal the weapon in the vehicle. (Id. at pp. 160-161.) The appellate court held that possession of the assault rifle was a continuing offense that extended throughout the entire time that dominion and control was asserted over the weapon. Accordingly, Malcom aided and abetted another person's continued felonious possession of the weapon. (Id. at pp. 69-70.)
The circumstances in the present case are far different. Defendant's conviction for being an accessory after the fact is not barred by his conviction as a principal for the robbery. Unlike in Eduardo M.—in which the facts underlying the accessory conviction involved escaping from the scene and denying involvement—and unlike in Malcolm M.—in which the underlying crime was still in progress at the time the defendant attempted to help the perpetrator avoid arrest—here defendant's conduct as a getaway driver for the robbery was completed when he dropped off the robber. (See People v. Cooper (1991) 53 Cal.3d 1158, 1160-1161; People v. Debose (2014) 59 Cal.4th 177, 232-233; People v. Johnson (1992) 5 Cal.App.4th 552, 559; CALCRIM No. 1603: "A perpetrator has reached a place of temporary safety with the property if he or she has successfully escaped from the scene, is no longer being pursued, and has unchallenged possession of the property".)
Instead, defendant's conviction as an accessory depended upon "entirely different conduct." (People v. Riley, supra, 20 Cal.App.4th at p. 1814; see In re Malcolm M., supra, 147 Cal.App.4th at p. 169.) Separately and subsequently, defendant sought to protect himself and the gunman from apprehension by attempting to dispose of the gun magazine. Once the gunman successfully escaped, the acts constituting the robbery had ceased by the time of defendant's later conduct. (See Malcolm M., at p. 170.) Accordingly, the independent and additional act of tossing the magazine constituted the crime of accessory after the fact, even though it occurred soon after the acts constituting the robbery. Defendant was properly convicted of both crimes. (See Riley, at pp. 1814-1815.)
At most, there was an evidentiary conflict that the jury resolved against defendant. (See People v. Maury (2003) 30 Cal.4th 342, 403.) As in Mouton and Riley, the accessory conviction rested upon the fact that defendant attempted to conceal or dispose of the weapons after completing the underlying crime. Defendant was properly convicted of robbery and accessory after the fact because these convictions were based on factually separate acts and involved distinct criminal intents. (See In re Malcolm M., supra, 147 Cal.App.4th at pp. 170-171; People v. Riley, supra, 20 Cal.App.4th at pp. 1816-1817.)
IV
DISPOSITION
We direct the superior court to strike the one-year prior prison term enhancement. (See People v. Perez (2011) 195 Cal.App.4th 801, 805.) Otherwise, we affirm the judgment.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J. We concur: MILLER
Acting P. J. FIELDS
J.