THE PEOPLE v. ANTWONE JOYNER (2010)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Antwone R. Joyner was convicted of first degree residential burglary (Pen.Code, §§ 459, 460) ¹ with a special findings by the jury that the offense had been committed to benefit a criminal street gang (§ 186.22, subd. (b)(1)) ² and by the court in a bifurcated proceeding that Joyner had suffered one prior serious or violent felony conviction within the meaning of the “Three Strikes” law (§§ 667, subds.(b)-(i);  1170.12, subds. (a)-(d)) and section 667, subdivision (a)(1), and had served a separate prison term for a prior felony conviction (§ 667.5, subd. (b)).  He was sentenced to an aggregate state prison term of 18 years.   On appeal Joyner does not challenge his conviction or the jury's special finding but contends the court improperly imposed a five-year criminal street gang enhancement pursuant to section 186.22, subdivision (b)(1)(B), rather than a two-, three- or four-year enhancement pursuant to section 186.22, subdivision (b)(1)(A).   We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

1. The Information

Neighbors of the victim reported a residential burglary in progress to police.   One of the neighbors subsequently identified Joyner, a member of the Rollin 30's criminal street gang, as the driver of the car in which the two intruders had been riding before attempting to enter the house.

Joyner was charged by information with one count of first degree residential burglary.   The information expressly notified Joyner the offense charged “is a serious felony within the meaning of Penal Code section 1192.7(c).”  In addition, the information specially alleged “pursuant to Penal Code section 186.22(b)(1)(A) that the above offense was committed for the benefit of, at the direction of, and in association with a criminal street gang with the specific intent to promote, further and assist in criminal conduct by gang members.”   Finally, the information identified a 2004 conviction for attempted robbery and specially alleged Joyner had suffered a prior serious felony conviction within the meaning of section 667, subdivision (a), and the Three Strikes law and had served a separate prison term for that prior felony conviction.

2. The Verdict and Sentence

The jury convicted Joyner of residential burglary and found true the special allegation the offense had been committed to benefit a criminal street gang.   Following the verdict, the trial court found true the prior conviction allegations.   Joyner was sentenced to an aggregate state prison term of 18 years, consisting of the middle term of four years for residential burglary, doubled to eight years under the Three Strikes law, plus five years for the prior serious felony enhancement.   Over defense objection the trial court also imposed a five-year criminal street gang enhancement under section 186.22, subdivision (b)(1)(B)), rather than a two-, three- or four-year enhancement under section 186.22, subdivision (b)(1)(A).

DISCUSSION

Due process requires a criminal defendant be given fair notice of the charges against him to provide an opportunity to prepare a defense and to avoid unfair surprise at trial.  (People v. Toro (1989) 47 Cal.3d 966, 973, disapproved on another ground in People v. Guiuan (1998) 18 Cal.4th 558;  People v. Lohbauer (1981) 29 Cal.3d 364, 368-369;  see People v. Tardy (2003) 112 Cal.App.4th 783, 786.)   Constitutional principles of due process are satisfied, however, as long as the accusatory pleading apprised the defendant of the potential for the enhanced penalty and alleges every fact and circumstance necessary to establish its applicability.  (People v. Thomas (1987) 43 Cal.3d 818, 826;  Tardy, at p. 787.)

Joyner concedes the information expressly alleged the residential burglary was committed to benefit a criminal street gang in the language of section 186.22, subdivision (b)(1), and does not challenge the jury's true finding on the gang enhancement.   The information also expressly notified Joyner that residential burglary is a “serious felony” within the meaning of section 1192.7, subdivision (c);  and Joyner does not contend this classification is improper or he was unaware of it.   Nonetheless, he argues his sentence was unlawfully enhanced under section 186.22, subdivision (b)(1)(B), which specifies the enhancement period when the underlying offense is a serious felony, because the information alleged a criminal street gang enhancement under section 186.22, subdivision (b)(1)(A).

Joyner is correct that the information did not expressly allege he was subject to a five-year enhancement under section 186.22, subdivision (b)(1)(B),³ but the information alleged every fact necessary to place him on notice he was subject to that additional term of imprisonment.  (See People v. Ramirez (2003) 109 Cal.App.4th 992, 999-1000;  People v. Riva (2003) 112 Cal.App.4th 981, 1003.)   Indeed, section 186.22, subdivision (a)(1)(A), itself plainly indicates the length of the criminal street gang enhancement is dependent on the classification of the underlying felony:  “Except as provided in subparagraphs (B) and (C), the person shall be punished by an additional term of two, three or four years at the court's discretion.”   As section 186.22, subdivision (b)(1)(B), requires the imposition of “an additional term of five years” if the underlying offense is a serious felony, Joyner received adequate notice of this potentially harsher punishment.  (See People v. Sok (2010) 181 Cal.App.4th 88, 96, fn. 8 [information's citation to § 186.22, subd. (b)(4)(B), did not preclude imposition of greater minimum term under § 186.22, subd. (b)(4)(A), because defendant “was plainly on notice an alternate penalty or enhancement would be sought in connection with count 9, as well as the factual basis for that special allegation”];  People v. Neal (1984) 159 Cal.App.3d 69, 72-73 [no due process violation by citation in information to wrong enhancement provision if defendant had notice prosecution was seeking enhanced punishment and the facts supporting enhancement];  People v. Tardy, supra, 112 Cal.App.4th at p. 787 [same].)

DISPOSITION

The judgment is affirmed.

We concur:

FOOTNOTES

FN1. Statutory references are to the Penal Code..  FN1. Statutory references are to the Penal Code.

FN2. For simplicity on occasion this opinion uses the shorthand phrase “to benefit a criminal street gang” to refer to crimes that, in the statutory language, are committed “for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members.” (§ 186.22, subd. (b);  see People v. Jones (2009) 47 Cal.4th 566, 571, fn. 2.).  FN2. For simplicity on occasion this opinion uses the shorthand phrase “to benefit a criminal street gang” to refer to crimes that, in the statutory language, are committed “for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members.” (§ 186.22, subd. (b);  see People v. Jones (2009) 47 Cal.4th 566, 571, fn. 2.)

FN3. As Joyner acknowledges, unlike many other sentencing statutes section 186.22, subdivision (b), by its terms does not require the statute to be specifically pleaded in the information or indictment.  (See §§ 1170.12, subd. (a), 667, subd. (e) [Three Strikes law];  § 667.61, subds. (f) & (i) [“One Strike” law];  cf.  People v. Mancebo (2002) 27 Cal.4th 735 [failure to allege specified circumstances under “One Strike” law precluded imposition of sentence enhancements under that statute].).  FN3. As Joyner acknowledges, unlike many other sentencing statutes section 186.22, subdivision (b), by its terms does not require the statute to be specifically pleaded in the information or indictment.  (See §§ 1170.12, subd. (a), 667, subd. (e) [Three Strikes law];  § 667.61, subds. (f) & (i) [“One Strike” law];  cf.  People v. Mancebo (2002) 27 Cal.4th 735 [failure to allege specified circumstances under “One Strike” law precluded imposition of sentence enhancements under that statute].)

WOODS, J. ZELON, J.