Filed 5/11/17 P. v. Vantuinen CA2/3
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent,
v.
DUANE A. VANTUINEN et al.,
Defendants and Appellants.
_____________________________________
In re
EDWIN LYNN VALENTINE,
on
Habeas Corpus.
B261581
(Los Angeles County
Super. Ct. No. BA415000)
B270299
(Los Angeles County
Super. Ct. No. BA415000)
APPEAL from judgments of the Superior Court of Los
Angeles County, Mike Camacho, Judge. Affirmed in part,
reversed in part, and remanded in part with directions. The
habeas corpus petition is denied.
Jennifer A. Mannix, under appointment by the Court of
Appeal, for Defendant and Appellant Duane A. Vantuinen.
2
Susan K. Shaler, under appointment by the Court of
Appeal, for Defendant and Appellant Randall Joseph Whitmore.
Eric R. Larson, under appointment by the Court of Appeal,
for Defendant and Appellant Edwin Valentine.
Kamala D. Harris, Attorney General, Gerald A. Engler,
Chief Assistant Attorney General, Lance E. Winters, Assistant
Attorney General, Victoria B. Wilson and Idan Ivri, Deputy
Attorneys General, for Plaintiff and Respondent.
_________________________
This case involves a conspiracy on the part of defendants
and appellants Duane A. Vantuinen, Randall Joseph Whitmore,
and Edwin Lynn Valentine—working together with Joshua Box,
Lorraine Vasquez, Cory Mulligan, Brian Duran and Margaret
High—to burglarize the homes of Los Angeles and San
Bernardino County newspaper subscribers who requested
temporary vacation stops of newspaper delivery. Most of the
victims were customers of the Los Angeles Times, but some
subscribed to other papers such as the Inland Valley Bulletin.
The evidence demonstrated that Vantuinen, while working
as a machine repairman for various newspaper distributors, stole
vacation stop lists and passed them along to his co-conspirators
who carried out the burglaries. Using these lists, Box and
Whitmore were able to commit burglaries at homes they knew
would be temporarily unoccupied. The other co-conspirators
apparently helped store and dispose of burglarized items.
Valentine and Vantuinen also helped dispose of some of the
stolen property.
3
The defendants were charged by indictment1 with having
engaged in conspiracies to commit residential burglary and
receive stolen property between April 2009 and September 2013.
Following a jury trial, the defendants were convicted of
conspiracy, burglary, and receiving stolen property.
On appeal, defendants raise various contentions of trial
and sentencing error. For the reasons discussed below, we find
that the June 2012 traffic stop of Whitmore for a seatbelt
violation—a detention that ultimately resulted in discovery of the
stolen vacation stop lists—did not violate the Fourth
Amendment. We find the trial court did not err by denying
Whitmore’s mistrial motion, and that Whitmore and Vantuinen’s
convictions need not be reversed because of the way the trial
court responded to a jury question during deliberations. We find
that Vantuinen’s multiple sentencing for separately possessing a
rifle and ammunition that could be fired from that rifle did not
violate section 654, but that his sentence for also possessing a
shotgun should not have been stayed. Finally, we find there was
insufficient evidence to sustain Valentine’s Three Strikes
sentencing based on his 1986 conviction for aggravated assault.
Because Valentine raised this same sentencing issue in his
accompanying habeas corpus petition, we will deny the habeas
petition as moot.

1 The indictment, dated November 22, 2013, named the
defendants in addition to other co-conspirators. However, after
the co-conspirators’ cases were resolved by plea agreements, the
indictment counts were re-numbered as to the three defendants
who went to trial and have now appealed.
4
BACKGROUND
This appeal follows a lengthy trial. Because much of the
trial evidence is not relevant to the issues raised on appeal, we
discuss the evidence in summary fashion, viewed in accordance
with the usual rules of appellate review. (People v. Ochoa (1993)
6 Cal.4th 1199, 1206.)
1. Prosecution evidence.
a. The charged burglaries.
The jury heard testimony from various victims whose
homes were burglarized between April 2009 and September 2013.
The victims’ homes generally were ransacked, and items
including electronics, jewelry, collectible coins, firearms, cars,
family heirlooms, checkbooks, and credit cards were stolen. Some
stolen property was subsequently recovered and returned to the
victims; some was never found.
The testifying victims included the following people:
Richard Stevens from Diamond Bar; Bassanio Peters from
Hacienda Heights; Laura Ann Haydel from Los Angeles; Daniel
Ma from La Puente; Lawrence Gebhardt from Hacienda Heights;
Gary Dumas from Chino Hills; Charles Dickie from Chino Hills;
Nget Fah Chong and her husband Cham Leong Quek from Chino
Hills; Jonathan Joslin from Chino Hills; William Wong from
Chino Hills; Tony Wang and his wife Evangeline Lin from
Hacienda Heights; Lana Boutacoff and her husband Eric Remsen
from Los Angeles; Mildred Ball from Ontario; Carl Smith from
Culver City; Dennis Wilbourn from Ontario; Ronald Paden and
his wife Nantana from Chino Hills; and Sheila Mauricio from
Burbank.
5
b. The police investigation.
The police investigation involved the efforts of multiple law
enforcement agencies: County Sheriffs from Los Angeles,
Riverside and San Bernardino, along with local police from
San Gabriel, Glendora, Arcadia, Burbank and Azusa. At
different times during the course of this conspiracy, each
conspirator was found in the possession of both burglarized
property and illegal drugs (usually methamphetamine).
(1) Whitmore’s first arrest.
In 2009, the San Gabriel Police Department searched the
bedroom of Joshua Box in connection with an unrelated crime.
The search of Box’s bedroom revealed property from 26 different
burglary victims and suggested a possible connection between
Box and defendant Whitmore.
In May 2009, the Los Angeles County Sheriff’s Department
conducted a search of Whitmore’s house and car. Deputies
discovered a number of items that had been stolen from victim
Stevens, including four rifles and a shotgun.
(2) Whitmore’s second arrest.
2
In April 2012, Whitmore tried unsuccessfully to access an
ATM machine using a credit card stolen from one of the burglary
victims. Thereafter, in June 2012, following a routine traffic
stop, police arrested Whitmore on suspicion of possessing stolen

2 Whitmore, like some of the other conspirators, was arrested
more than once during the course of the investigation. Because
the charges involved only receipt of stolen property, he was
released on bail.
6
property.3 Officers searched Whitmore’s car after his arrest,
finding, among other things, a 10-page typewritten list
containing the names and addresses of people who had requested
Los Angeles Times vacation holds, as well as start and stop dates;
and a five-page handwritten list containing similar information.
Police also discovered in Whitmore’s car a backpack containing
burglary tools (including hand drills, drill bits, flashlights, a
screwdriver, screwdriver bits, and bolt cutters), and jewelry,
musical instruments, and a Ninendo game console stolen from
the Lin/Wang family.
(3) Los Angeles County Sheriff’s Department
investigation.
After Whitmore’s arrest, Detective Jack Jordan discovered
more than 40 burglaries in Los Angeles and San Bernardino
counties that had occurred at homes on the Los Angeles Times
vacation lists. Further, by comparing the contacts in Whitmore’s
seized phone with individuals listed as employees of the Los
Angeles Times, Jordan discovered a connection between
defendant Vantuinen and the Los Angeles Times. Specifically,
Jordan learned that Vantuinen worked as a subcontractor
repairing the binding and tying machines used by newspaper
distributors Hrach Besnilian and Gary Veron.
Both Besnilian and Veron testified that they had employed
Vantuinen since 2009 to repair their binding and tying machines,
and both testified that Vantuinen sometimes worked without
supervision. Veron recognized one of the typewritten lists seized

3 The details of this arrest are discussed more fully in
Section 1 of the Discussion.
7
from Whitmore’s car as having been provided to his newspaper
carriers in June 2012, and all the addresses on the handwritten
list seized from Whitmore’s car were Besnilian’s customers. Two
other newspaper distributors, Robert Cronkhite and Freddy
Terrazas, also testified that they had hired Vantuinen and that
he would have had access to their vacation hold lists.
(4) Additional arrests and investigation.
In July 2012, Box and Vasquez were stopped in a car
containing burglary tools and stolen items, including coins,
jewelry, a musical instrument, electronics, and purses. At about
the same time, the San Bernardino Sheriff’s Department
distributed to other law enforcement agencies photographs of the
person who attempted the April 2012 ATM withdrawal using one
of the burglary victim’s stolen credit cards. Detective Jordan
recognized the person at the ATM machine as defendant
Whitmore.
In November 2012, defendant Valentine was arrested
driving a car stolen from one of the burglary victims. Also in
November 2012, Detective Jordan searched Whitmore’s residence
and arrested him for possession of methamphetamine. In a
detached garage near the house, Jordan found property stacked
from floor to ceiling, including items stolen from victims Ma,
Dickie, the Kakukas, Smith, Wong, and Chong. During a
subsequent search of the garage, Jordan found additional stolen
items belonging to Dumas, Paden, Wong, Gebhardt, and
Boutacoff/Remsen.
At some point between December 2012 and January 2013,
Whitmore was rearrested.
In January 2013, officers arrested Box and searched his
house. Officers found Box’s bedroom so full of stolen items that it
8
“looked like a pawn shop.” Stolen property in the room was
linked to nine of the burglary victims. Further, a memory card
found in Box’s bedroom was found to contain a video of Box and
Whitmore entering the home of one of the victims.
(5) Vantuinen’s arrest.
In January 2013, officers conducted a search of Vantuinen’s
Azuza house. In Vantuinen’s bedroom, officers found a 20-gauge
shotgun, a 22-caliber rifle, 22-caliber ammunition, and stolen
property belonging to victims Dickie, Haydel, Dumas, and
Wilbourn. In a shed near the house, officers found 0.4 grams of
methamphetamine that Vantuinen admitted belonged to him.
On January 30, 2013, Vantuinen was arrested. Inside his
backpack were antique coins belonging to victim Dickie.
(6) Cell phone evidence.
Telephone company cell phone data established that there
had been hundreds of phone calls and text messages between
various members of the conspiracy.
2. Defense evidence.
Michael Belanoff testified he ran an online retail business
and had arranged to store some of his inventory in Whitmore’s
garage, including DVD’s, toys, electronics, knives, swords and
computers. Belanoff learned this property was later confiscated
by the police. Valentine stayed at Belanoff’s house from January
to May or June of 2012, and while there was permitted to use
Belanoff’s telephone. Belanoff acknowledged he had suffered
felony convictions for receiving stolen property, forgery and
possession of narcotics for sale.
3. Trial outcome.
The jury convicted Whitmore of the two counts of
conspiracy (Pen. Code, §§ 182/459 and 182/496 [conspiracy to
9
commit residential burglary; conspiracy to receive stolen
property]),
4 five counts of burglary (§ 459), and four counts of
receiving stolen property (§ 496). Vantuinen was convicted of the
same two conspiracy counts, plus two counts of possession of a
firearm by a felon (§ 29800), possession of ammunition by a felon
(§ 30305), and possession of a controlled substance (Health & Saf.
Code, § 11377). Valentine was convicted of the same two
conspiracy counts, but acquitted on all other charges.
The defendants were sentenced to the following prison
terms: Vantuinen – 8 years 4 months; Whitmore – 14 years
4 months; Valentine – 25 years to life.
CONTENTIONS
Whitmore contends that the vacation stop lists were
discovered in his car as the result of an illegal police search; a
mistrial should have been declared after the jury learned he had
suffered prior arrests and convictions; and the trial court did not
adequately answer a jury question during deliberations.
Vantuinen contends the trial court erred by failing to
adequately answer the jury question, and that he was
impermissibly sentenced for both illegally possessing a rifle and
illegally possessing ammunition that could have been loaded into
that rifle.
Valentine contends the trial court erroneously found his
prior conviction for aggravated assault (former § 245, subd. (a))
was a strike under the Three Strikes law.5

4 All further statutory references are to the Penal Code
unless otherwise specified.
5 Valentine raises this issue both directly on appeal and
indirectly via an ineffective assistance of counsel claim in his
10
DISCUSSION
1. The trial court did not err by denying Whitmore’s motion
to suppress evidence seized from the June 2012 warrantless search
of his car.
Whitmore contends the trial court erroneously denied his
motion to suppress the evidence seized from the June 2012
warrantless search of his car. (§ 1538.5.) According to Whitmore,
although Glendora Police Department Officer Russell Ziino had
the right to briefly stop him for failing to wear a seatbelt, Ziino
was not permitted to detain him for 75 to 80 minutes or to search
his car. As we now discuss, we find no error.
a. Factual background.
6
At about 8:00 a.m. on June 24, 2012, Officer Ziino stopped
Whitmore in a black Dodge Durango SUV for driving without
having his seatbelt fastened. As Ziino walked toward Whitmore’s
car, he noticed “numerous items” piled in “the passenger’s
compartment,” and a backpack and violin case on the rear floor.
Whitmore handed Ziino a valid driver’s license, but expired
registration and insurance cards.7 Ziino testified that, during

accompanying habeas corpus petition. Because we agree with
Valentine’s claim on appeal, we need not reach the merits of his
habeas corpus petition and will deny it as moot.
6 The following facts are based on Officer Ziino’s testimony at
the suppression hearing and a recording of the encounter
between Ziino and Whitmore, portions of which were captured by
Ziino’s body microphone.
7 In 2012, California Vehicle Code section 4000,
subdivision (a)(1), provided that “[a] person shall not drive . . .
any motor vehicle . . . unless it is registered and the appropriate
fees have been paid under this code.” Vehicle Code section 4454,
11
this initial contact, Whitmore “appeared nervous. He was
sweaty, which I thought was odd for 8:00 in the morning” when
the temperature was “in the mid 60’s to low 70’s.” Further,
Whitmore “was shaking slightly. He appeared nervous. He was
perspiring. Based on my training and experience, I suspected he
may have been under the influence of [an illegal] stimulant.”
Ziino returned to his patrol car to have dispatch run
Whitmore’s name and license plate number through the police
computer. Ziino testified that at that point, he already suspected
Whitmore of being in possession of stolen property “because of
the items in the car.” Dispatch reported that Whitmore’s driver’s
license was valid, but that Whitmore had a criminal record.
Ziino, now joined by Officer Stein, walked back to
Whitmore’s car and asked if Whitmore used methamphetamines.
Whitmore replied that he last used methamphetamines a few
years earlier. Ziino then asked Whitmore to step out of his car so
Ziino could check him for drug use. Ziino patted Whitmore down
for weapons and asked, “When’s the last time you were arrested?”
Whitmore said he had been arrested about two years earlier for
stealing or attempting to steal copper wire. As a result of the

subdivision (a), provides: “Every owner, upon receipt of a
registration card, shall maintain the same or a facsimile copy
thereof with the vehicle for which issued.” And the version of
Vehicle Code section 4462 in effect in 2012 provided: “The driver
of a motor vehicle shall present the registration or identification
card or other evidence of registration of any or all vehicles under
his or her immediate control for examination upon demand of any
peace officer.”
12
copper wire incident, Whitmore apparently had been convicted of
burglary.
Ziino conducted a sobriety test, ultimately concluding that
Whitmore was not under the influence of a controlled substance.
Ziino then asked for consent to search Whitmore’s car, which
Whitmore refused. The following exchange then occurred:
“[Ziino:] Okay. Do you have a valid insurance card or
registration card?
“[Whitmore:] Yes, I do.
“[Ziino:] Is it in the car somewhere?
“[Whitmore:] Yes. I thought I handed it to you.
“[Ziino:] Both of those were expired, so I’m going to check
your car for current registration and insurance. Okay? What is
in the car that I need to be concerned about?
“[Whitmore:] Nothing. [¶] . . . [¶] There’s no weed or
nothing. I’m just saying it’s [i.e., his vehicle documentation] in
the center console. In the little flip hatch.”
Ziino told Whitmore he was not under arrest, but that Ziino
was going to search the car for proof of current registration and
insurance. Ziino initially looked in the center console because
that was where Whitmore told him the documentation would be.
Inside the center console, Ziino found a valid insurance card, but
no valid registration card. He then searched the glove box and
behind the sun visor, but did not find a current registration card.
Immediately behind the center console, Ziino could see “a
gray backpack with bolt cutters sticking out of it. I also saw
pliers in there.” The backpack was in plain view, “directly behind
the center console . . . in the middle of the car on the floorboards.”
Ziino could see the bolt cutters and pliers because the zipper
compartment of the backpack was open and the tools were
13
protruding from it. Ziino testified he “recognized those [as] items
commonly used as burglary tools.”
Ziino looked in the gray backpack because Whitmore said it
was where he kept his paperwork. Ziino did not find any vehicle
paperwork, but he found more tools and a list of some kind.
Whitmore told Ziino that he used the tools in the backpack for his
work as an electrician. Whitmore said: “I’m on unemployment. I
just got off work as an electrician.”
Ziino then checked two women’s purses that were on the
back seat; one purse was empty and the other contained video
game controllers, one of which had a sticker with the name
“Justin Wang” on it. Whitmore said the game controllers
belonged to his kids. Ziino opened a violin case and a flute case;
each contained an instrument. Ziino testified the reason he
looked inside the gray backpack and the musical instrument
cases was because “I thought it was possible that the registration
card could be in there” and also because “I was trying to confirm
my suspicions of stolen property.”
Based on what he had seen, Ziino called dispatch and asked
them to check on a recent burglary at a local music store to see if
any violins or flutes had been taken; dispatch reported that they
had not.
Whitmore gave Ziino permission to examine his cell phone.
Ziino testified he saw a text message conversation between
Whitmore and somebody listed in his contacts as Van.
Subsequently, Whitmore told Ziino that Van was also called “Big
D.” Ziino testified that in that text message conversation, Van
had sent Whitmore a text asking about “the coins. Have you
brought those coins yet.” Van also texted, “Where you at?,” to
which Whitmore responded, “Out in L.A.,” and then Whitmore
14
texted, “[N]othing yet. Two alarms.” Whitmore said the texts
were “just two guys shooting the shit.”
Ziino asked Whitmore “where he got all this stuff [in the
car] from and [Whitmore] said he got it from his friend Big D. [¶]
. . . in Covina.” Ziino asked, “So if we called him up right now
he’d say yeah, Randall just left my place and he picked up some
stuff?” Whitmore replied, “I don’t see why he wouldn’t.”
Ziino called Big D, identifying himself as a police officer.
Whoever answered the phone denied knowing Whitmore. After
the person hung up on Ziino, the following conversation occurred:
“[Ziino:] He doesn’t know who you are. I called the number
in your phone that says Van.
“[Whitmore:] Come on. He doesn’t know who I am?
“[Ziino:] He says nobody in a black Durango was just at his
house.
“[Whitmore:] What?
“[Ziino:] That’s what he’s saying.
“[Whitmore:] Damn. Wow.
“[Ziino:] So what’s the real story? [¶] . . . [¶]
“[Stein:] Where did Van get this stuff from?
“[Whitmore:] It’s my stuff. I had it [unintelligible] take it
to my house.
“[Stein:] Why would he lie and say he hasn’t seen you? . . . .
“[Whitmore:] I’d like to go and ask him too. . . . It blows
me away.”
After speaking to “Big D.,” which Ziino estimated to have
been 75 to 80 minutes after the traffic stop began, he believed
there was probable cause to arrest Whitmore on suspicion of
possessing stolen property. Ziino arrested Whitmore and had his
car towed to the police station. A subsequent search uncovered
15
two more lists of names, dates and addresses. These turned out
to be newspaper vacation stop lists that included some of the
burglary victims. The search of Whitmore’s car also yielded
stolen property belonging to burglary victims Tony Wang and
Evangeline Lin, “including the violin, flute, a checkbook, jewelry,
a coffee maker, and a Nintendo device.”
b. Trial court’s ruling.
At the suppression hearing, defense counsel argued that
once Ziino determined Whitmore was not under the influence of
drugs, he was required to issue a seatbelt citation and allow
Whitmore to go on his way. Everything that took place
subsequently was an impermissible prolongation of the traffic
stop and, therefore, the vacation stop lists and stolen items
discovered in Whitmore’s car had to be suppressed.
The trial court ruled otherwise, reasoning this had been “a
case involving multiple investigations, starting from a de
minimus seatbelt violation up through and including an
investigation for possession of burglary tools and/or receiving
stolen property. But one evolves into another during the course
of this detention.”
Citing In re Arturo D. (2002) 27 Cal.4th 60 (Arturo D.) and
People v. Webster (1991) 54 Cal.3d 411, the trial court noted that
“just because the defendant produces a valid California driver’s
license . . . does not mean the officer does not have the right to
search for additional regulatory documents.” Therefore, Ziino
could lawfully search the center console, where Whitmore told
him the missing documents would be, and while doing so Ziino
noticed—in plain view—the possible burglary tools protruding
from the gray backpack. The court concluded Ziino’s suspicion
that Whitmore was in possession of stolen property was
16
“supported by the defendant’s own words that in the past, he has
used burglary tools to commit theft, that being the copper wire.”
The court noted that Ziino then gave Whitmore “every
opportunity to justify or explain the need to have these items,
that being the bolt cutter, pliers, [that] could be construed as
burglary tools. . . . Did that flesh out to the defendant’s benefit?
It certainly didn’t. It was to his disadvantage because, again, it
helped heighten the officer’s suspicions that there is illegal
activity afoot given the text messages in the phone, the inability
to confirm through Big D that the defendant had rightful
possessory interest in all these items that were within this
vehicle. At that point . . . I think the officer was reasonable in . . .
forming the opinion that perhaps the defendant was in possession
of burglar tools and perhaps in receipt of stolen property.” The
court held that, “given those justifications,” Ziino reasonably
extended the traffic stop in order to complete his investigation.
Therefore, seizing the vacation stop lists did not violate the
Fourth Amendment.
c. Discussion.
Whitmore contends the vacation stop lists and stolen
property found in his car should have been suppressed because
the traffic stop, although initially lawful, should have been
terminated as soon as Ziino determined Whitmore was not
driving under the influence of illegal drugs.
8 We disagree.

8 Even if Whitmore had been successful in suppressing the
vacation stop lists, it would not have helped Vantuinen and
Valentine. “A person who is aggrieved by an illegal search and
seizure only through the introduction of damaging evidence
secured by a search of a third person’s premises or property has
17
(1) Legal principles and standard of review.
“The Fourth Amendment guarantees ‘[t]he right of the
people to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures.’ Temporary
detention of individuals during the stop of an automobile by the
police, even if only for a brief period and for a limited purpose,
constitutes a ‘seizure’ of ‘persons’ within the meaning of this
provision. [Citations.] An automobile stop is thus subject to the
constitutional imperative that it not be ‘unreasonable’ under the
circumstances. As a general matter, the decision to stop an
automobile is reasonable where the police have probable cause to
believe that a traffic violation has occurred. [Citations.]” (Whren
v. U.S. (1996) 517 U.S. 806, 809–810 [116 S.Ct. 1769].)
“A seizure for a traffic violation justifies a police
investigation of that violation. ‘[A] relatively brief encounter,’ a
routine traffic stop is ‘more analogous to a so-called “Terry stop”
[Terry v. Ohio (1968) 392 U.S. 1 [88 S.Ct. 1868] (Terry)] . . . than
to a formal arrest.’ [Citations.] Like a Terry stop, the tolerable
duration of police inquiries in the traffic-stop context is
determined by the seizure’s ‘mission’—to address the traffic
violation that warranted the stop. [Citations.] Because
addressing the infraction is the purpose of the stop, it may ‘last
no longer than is necessary to effectuate th[at] purpose.’
[Citations.] Authority for the seizure thus ends when tasks tied
to the traffic infraction are—or reasonably should have been—

not had any of his Fourth Amendment rights infringed.” (Rakas
v. Illinois (1978) 439 U.S. 128, 134 [99 S.Ct. 421].)
18
completed. [Citation.]” (Rodriguez v. U.S. (2015) 135 S.Ct. 1609,
1614 [191 L.Ed.2d 492] (Rodriguez).)
“Beyond determining whether to issue a traffic ticket, an
officer’s mission includes ‘ordinary inquiries incident to [the
traffic] stop.’ [Citation.] Typically such inquiries involve
checking the driver’s license, determining whether there are
outstanding warrants against the driver, and inspecting the
automobile’s registration and proof of insurance. [Citations.]
These checks serve the same objective as enforcement of the
traffic code: ensuring that vehicles on the road are operated
safely and responsibly. [Citation.]” (Rodriguez, supra, 135 S.Ct.
at p. 1615.) Therefore, after a legal traffic stop, an “officer may
temporarily detain the offender at the scene for the period of time
necessary to discharge the duties that he incurs by virtue of the
traffic stop.” (People v. McGaughran (1979) 25 Cal.3d 577, 584.)
However, “[a]n investigative stop can grow out of a traffic stop so
long as the officer has reasonable suspicion of criminal activity to
expand his investigation, even if his suspicions were unrelated to
the traffic offense that served as the basis of the stop. [Citation.]”
(U.S. v. Gomez Serena (8th Cir. 2004) 368 F.3d 1037, 1041.)
“The guiding principle in determining the propriety of an
investigatory detention is ‘the reasonableness in all the
circumstances of the particular governmental invasion of a
citizen’s personal security.’ [Citations.] In making our
determination, we examine ‘the totality of the circumstances’ in
each case. [Citations.] [¶] Reasonable suspicion is a lesser
standard than probable cause, and can arise from less reliable
information than required for probable cause, including an
anonymous tip. [Citation.] But to be reasonable, the officer’s
suspicion must be supported by some specific, articulable facts
19
that are ‘reasonably “consistent with criminal activity.” ’
[Citation.] The officer’s subjective suspicion must be objectively
reasonable, and ‘an investigative stop or detention predicated on
mere curiosity, rumor, or hunch is unlawful, even though the
officer may be acting in complete good faith. [Citation.]’
[Citation.] But where a reasonable suspicion of criminal activity
exists, ‘the public rightfully expects a police officer to inquire into
such circumstances “in the proper exercise of the officer’s duties.”
[Citation.]’ [Citation.]” (People v. Wells (2006) 38 Cal.4th 1078,
1083, italics added.)
“[A]s a general matter determinations of reasonable
suspicion and probable cause should be reviewed de novo on
appeal. Having said this, we hasten to point out that a reviewing
court should take care both to review findings of historical fact
only for clear error and to give due weight to inferences drawn
from those facts by resident judges and local law enforcement
officers.” (Ornelas v. United States (1996) 517 U.S. 690 [116 S.Ct.
1657].) A reviewing court must uphold the trial court’s factual
findings if they are supported by substantial evidence. (People v.
Williams (1988) 45 Cal.3d 1268, 1301, disapproved on other
grounds in People v. Diaz (2015) 60 Cal.4th 1176, 1190.)
“A proceeding under section 1538.5 to suppress evidence is
a full hearing on the issues before the superior court sitting as
finder of fact. [Citations.] The power to judge credibility of
witnesses, resolve conflicts in testimony, weigh evidence and
draw factual inferences, is vested in the trial court. On appeal all
presumptions favor proper exercise of that power, and the trial
court’s findings—whether express or implied—must be upheld if
supported by substantial evidence. [Citations.]” (People v.
Superior Court (Keithley) (1975) 13 Cal.3d 406, 410–411.) “Since
20
Proposition 8 . . . [was enacted in 1982] a court may only exclude
evidence from a state criminal proceeding if exclusion is
mandated by the federal exclusionary rule applicable to evidence
seized in violation of the Fourth Amendment. [Citation.]” (Gikas
v. Zolin (1993) 6 Cal.4th 841, 867; accord People v. Coffman
(2004) 34 Cal.4th 1, 43.)
(2) A limited search of Whitmore’s vehicle
was lawful because Whitmore failed to provide adequate
documentation during a valid traffic stop.
Whitmore does not dispute that Ziino properly pulled him
over because he was not wearing a seatbelt. (Veh. Code, § 27315,
subd. (d)(1).) Whitmore also does not dispute that Ziino was
permitted to detain him in order to conduct a field sobriety test
because Ziino had a reasonable suspicion—based on the facts
that Whitmore was shaking and perspiring—that Whitmore was
under the influence of a stimulant. Whitmore contends, however,
that Ziino was required to release him after writing a citation for
the seatbelt violation and determining that he was not under the
influence.
We do not agree. Once Whitmore had lawfully been
stopped, Officer Ziino was entitled to demand Whitmore’s driver’s
license and registration. (E.g., People v. Saunders (2006)
38 Cal.4th 1129, 1137, citing Veh. Code, §§ 4462, subd. (a), 12951,
subd. (b); Arturo D., supra, 27 Cal.4th at p. 67.) Further, because
Whitmore did not produce a valid registration or insurance card,
it was constitutionally proper for Ziino “to conduct a limited
warrantless search of [his] vehicle for the purpose of locating
registration and other related identifying documentation.”
(Arturo D., supra, at p. 71.) Under our Supreme Court’s decision
in Arturo D.: “Limited warrantless searches for required
21
registration and identification documentation are permissible
when, following the failure of a traffic offender to provide such
documentation to the citing officer upon demand, the officer
conducts a search for those documents in an area where such
documents reasonably may be expected to be found. Under this
standard, an officer may not search for such documents on
pretext [citation], or without first demanding that they be
produced [citation], and an officer may not search in containers or
locations in which such documents are not reasonably expected to
be found. [Citation.]” (Id. at p. 86, fn. omitted.)
Under Arturo D., therefore, it was permissible for Ziino to
search the center console of Whitmore’s car because that was
where Whitmore said a valid proof of registration and insurance
would be found. And, when Ziino found a valid insurance card
but not a valid registration, it was permissible for Ziino to search
the glove box and behind the sun visor because those were areas
where proof of registration reasonably may be expected to be
found.
9
(3) Whitmore’s continued detention was
reasonable in light of the totality of the circumstances.
While properly searching the center console for Whitmore’s
proof of insurance and registration, Ziino saw a gray backpack in
which bolt cutters and pliers were visible. The backpack and
tools—which Ziino recognized as commonly used to commit
burglaries—were in plain view. (See Quezada v. City of Los

9 Whitmore asserts “[t]here was no reason for Ziino to believe
a valid registration would be in the car,” but of course there was:
as Whitmore concedes a few lines later, he had “told Ziino the
registration was in the center console.”
22
Angeles (2014) 222 Cal.App.4th 993, 1006–1007 [“The United
States Supreme Court has said, ‘The plain-view doctrine
authorizes seizure of illegal or evidentiary items visible to a
police officer whose access to the object has some prior Fourth
Amendment justification and who has probable cause to suspect
that the item is connected with criminal activity. [Citations.]
The plain-view doctrine is grounded on the proposition that once
police are lawfully in a position to observe an item first-hand, its
owner’s privacy interest in that item is lost; the owner may retain
the incidents of title and possession but not privacy.’ ”].)
At this point, Ziino could have arrested Whitmore based on
probable cause to believe he was violating section 466 (possession
of burglary tools).
10 (See Illinois v. Gates (1983) 462 U.S. 213,
244, fn. 13 [103 S.Ct. 2317] [“Probable cause requires only a
probability or substantial chance of criminal activity, not an
actual showing of such activity.”]; People v. Southard (2007)
152 Cal.App.4th 1079, 1090 [defendant properly convicted of
violating section 466 after found in possession of tools, including
“multiple pairs of pliers, a large pair of bolt cutters,” when
requisite intent proved].) This would have allowed a warrantless

10 Ziino also had a reasonable suspicion that Whitmore was in
possession of stolen property. Whitmore had admitted to a prior
burglary conviction and his car contained common burglary tools.
Whitmore had offered an implausible explanation for the
presence of the tools: He said he had just gotten off work as an
electrician, but also said he was unemployed. Whitmore was
shaking and sweating, symptoms not explained either by the
weather or by drug use. Finally, Whitmore’s vehicle contained
items, including two woman’s purses and a pink backpack, that
appeared not to belong to him.
23
search of Whitmore’s car for stolen property, including a search of
such closed containers as the women’s purses and the instrument
cases. (See People v. Evans (2011) 200 Cal.App.4th 735, 753
[“Under the automobile exception [to the Fourth Amendment],
police who have probable cause to believe a lawfully stopped
vehicle contains evidence of criminal activity or contraband may
conduct a warrantless search of any area of the vehicle in which
the evidence might be found.”]; see also U.S. v. Ross (1982)
456 U.S. 798, 824 [102 S.Ct. 2157] [“The scope of a warrantless
search of an automobile thus is not defined by the nature of the
container in which the contraband is secreted. Rather, it is
defined by the object of the search and the places in which there
is probable cause to believe that it may be found.”].)
Ziino did not immediately arrest Whitmore, however, but
instead extended Whitmore’s detention to permit further
investigation into the facts. This was reasonable. (See United
States v. Arvizu (2002) 534 U.S. 266, 273 [122 S.Ct. 744] [in
determining the lawfulness of a temporary detention, courts look
at the totality of the circumstances to see whether police have
“ ‘particularized and objective basis’ for suspecting legal
wrongdoing”].) Subsequently, with Whitmore’s consent, Ziino
examined Whitmore’s cell phone. Ziino saw suspicious texts from
“Van,” whom Whitmore said was also called “Big D.” Ziino asked
Whitmore “where he got all this stuff [in the car] from and
[Whitmore] said he got it from his friend Big D.” in Covina. Ziino
asked, “So if we called him up right now he’d say yeah, Randall
just left my place and he picked up some stuff?” to which
Whitmore replied, “I don’t see why he wouldn’t.” When Ziino
called “Big D.,” however, whoever answered the phone denied
knowing Whitmore.
24
At this point, which Ziino estimated to have been 75 to
80 minutes after the traffic stop began, Ziino arrested Whitmore
and conducted a search of his car.
11
(4) Whitmore’s contentions are without merit.
Whitmore argues Ziino either lied about not having
dispatch check on whether the registration was current (when
Ziino first returned to his patrol car), or—if he did not—that he
should have because “[a]t that point in time, Ziino’s entire reason
for detaining Whitmore further was based on the expired
registration card.” But a few lines later, Whitmore himself
provides the correct answer: “After speaking with Whitmore,
Ziino suspected Whitmore was under the influence of a
stimulant.” The important point is that very soon after this
traffic stop began there arose several indicators of criminal
activity: Whitmore’s nervous behavior, his lack of a current
registration card, his criminal history involving both drugs and
theft, and the possibility that his car contained stolen property.
(See U.S. v. Calvetti (6th Cir. 2016) 836 F.3d 654, 667 [criminal
history “ ‘related to the same suspicions that the officer was
developing’ ” was “strong indicator[ ]” contributing to “reasonable
suspicion of criminal activity”].)
Whitmore argues “this Court ought not give credence to
Ziino’s claim that Whitmore looked ‘nervous’ as justification for
anything. This claim is an overused sham to prolong . . .
detentions unnecessarily.” It is true that, standing by itself,
nervous behavior is generally an insufficient reason to suspect

11 Whitmore does not contend that the search of his car
incident to his arrest was improper.
25
criminal activity. But many cases have cited it as a legitimate
articulable factor when combined with other suspicious factors.
(See U.S. v. Calvetti, supra, 836 F.3d at pp. 666–667 [although
nervousness was “a relevant but ‘unreliable indicator, especially
in the context of a traffic stop,’ ” when added to other factors it
helped “establish that the officers had reasonable suspicion
necessary to justify expanding the initial stop”]; U.S. v. Awer (1st
Cir. 2014) 770 F.3d 83, 91 [legitimate factors pointing to possible
criminal activity included defendant’s “heavy breathing and
sweating”]; U.S. v. Lyons (7th Cir. 2013) 733 F.3d 777, 782
[“Officer Burns noted that Lyons appeared nervous, and that his
hands were shaking. Although not conclusive, such observations
may contribute to reasonable suspicion.”]; U.S. v. Cotter (8th Cir.
2012) 701 F.3d 544, 547 [that defendant “appeared nevous and
shaky” was legitimate reasonable suspicion factor].)
The point is that it is the totality of circumstances that
determines whether or not a temporary detention was
reasonable. “[W]e must consider ‘the totality of the
circumstances—the whole picture.’ [Citation.]” (U.S. v. Sokolow
(1989) 490 U.S. 1, 8 [109 S.Ct. 1581].) Moreover, the
accumulation of sometimes innocent-appearing details
occasionally provides articulable reasonable suspicion warranting
a continued detention. “ ‘[T]he possibility of an innocent
explanation does not deprive the officer of the capacity to
entertain a reasonable suspicion of criminal conduct. Indeed, the
principal function of his investigation is to resolve that very
ambiguity and establish whether the activity is in fact legal or
illegal—to “enable the police to quickly determine whether they
should allow the suspect to go about his business or hold him to
answer charges. [Citation.]” ’ [Citations.]” (People v. Leyba
26
(1981) 29 Cal.3d 591, 599.) “The fundamental objective that
alone validates all unconsented government searches is, of
course, the seizure of persons who have committed or are about to
commit crimes, or of evidence related to crimes. But
‘reasonableness,’ with respect to this necessary element, does not
demand that the government be factually correct in its
assessment that that is what a search will produce.” (Illinois v.
Rodriguez (1990) 497 U.S. 177, 184 [110 S.Ct. 2793].) Hence,
“[t]he possibility of an innocent explanation . . . does not preclude
an officer from effecting a stop to investigate the ambiguity.
[Citations.]” (People v. Saunders, supra, 38 Cal.4th at pp. 1136–
1137.)
Whitmore complains that “Ziino failed to confirm or dispel
his suspicions quickly. Worse, when one suspicion was dispelled
Ziino manufactured another.” Whitmore is ignoring the trial
court’s finding that Ziino credibly explained how the traffic stop
was reasonably prolonged because he kept discovering new
suspicious circumstances that he properly investigated in order to
determine whether or not Whitmore “was in possession of burglar
tools and perhaps in receipt of stolen property.” (See People v.
Williams, supra, 45 Cal.3d at p. 1301 [reviewing court must
uphold trial court’s factual findings if supported by substantial
evidence].)
The record does not show that Ziino “manufactured”
anything. He spotted the seatbelt violation from his patrol car.
He testified that when he initially approached Whitmore’s car, he
noticed many items strewn about12 and Whitmore being

12 Ziino testified he saw that “the rear passenger’s
compartment was loaded with numerous items” and that he
27
unusually sweaty, shaky and nervous. When Ziino informed
Whitmore he had to produce a valid registration card, Whitmore
told him to look in the center console. When Ziino did that, he
saw burglary tools in the gray backpack. Ziino knew that
Whitmore had fairly recently both used methamphetamine and
been convicted of theft. Whitmore offered numerous implausible
explanations: he was unemployed but had just gotten off work;
the video game items belonged to his children but one of them
had a sticker identifying it as belonging to a Justin Wang; his
text message about “two alarms” did not mean anything. Ziino
tried to corroborate Whitmore’s explanation for the property in
his car by making a phone call, but when the story did not check
out Whitmore expressed total shock.
These accumulated suspicious facts were not all apparent
when Ziino initially stopped Whitmore for the seatbelt violation;
rather, they emerged over the next 75 or 80 minutes. There was,
however, no evidence that Ziino purposely extended Whitmore’s
detention just to give himself time to possibly discover more
suspicious facts. It is far more accurate to say that Ziino
“discovered” these additional suspicious facts than to say that he
“manufactured” them.
Whitmore’s reliance on People v. McGaughran, supra,
25 Cal.3d 577, is misplaced because in that case a ten-minute
delay in issuing a traffic citation, during which time the officer
ran a warrant check, was held illegal because the requirements of
a permissible Terry stop were clearly not met. As our Supreme

“could see clearly through the rear window that there was stuff
inside piled on the rear seats.”
28
Court explained, the officer there purportedly relied on five
different suspicious facts, but three of them were “wholly
innocent” (the driver and his passenger were not local residents,
they appeared to be lost, and they were adults traveling in the
vicinity of a high school), and the other two (high crime area and
a furtive gesture) were insufficient—by themselves—to warrant a
reasonable suspicion of criminal activity. (Id. at pp. 588–590.)
The facts of McGaughran could not be more different than the
facts of the case at bar.
The trial court did not err by denying Whitmore’s
suppression motion.
2. Denying Whitmore’s mistrial motion was not error.
Whitmore contends the trial court erred by not granting
him a mistrial after the prosecution caused the jury to learn he
had suffered prior arrests and convictions, and that when he was
arrested he was possibly in possession of methamphetamine.
a. Background.
During Officer Ziino’s trial testimony, the prosecutor asked
the following series of questions about what he found in
Whitmore’s car when he made the traffic stop:
“Q. At that point in time did you make any other
observations of anything in the car that was relevant to your
investigation?
“A. Yes. I had a conversation with Mr. Whitmore about his
previous convictions and he told me that he was—
“The Court: I tell you what, let’s move onto another area of
examination. [¶] Go ahead, Mr. Inaba [the prosecutor].
“Mr. Inaba: Okay. Maybe I can ask in a different way.
“Q. Without mentioning prior convictions, did [Mr.
Whitmore] mention any incident involving copper?
29
“A. Yes.
“Q. Without mentioning any convictions can you tell us
what he said about the copper?
“A. He told me the last time he was arrested was for
stealing copper wire.
“Q. Did he tell you how long ago that was?
“A. Yes, and I don’t recall the year.
“[Defense counsel]: Objection. Motion to strike this whole
line of questioning.
“The Court: Overruled. But I think we probed that issue
enough. [¶] So let’s move on, Mr. Inaba.
“Q. By Mr. Inaba: You said you don’t remember the year.
Was it— [¶] If I can ask this one more question?
“The Court: Go ahead.
“[Defense counsel]: Objection.
“The Court: Overruled. [¶] Go ahead, let’s get that
information.
“Q. By Mr. Inaba: This stop occurs in June 2012. When
you said [you are] not sure of the year, do you remember whether
or not [it was] in 2012, the year that you did the stop, or some
prior year?
“A. Prior year.
“Q. So 2011 or—
“A. Or earlier.”
Defense counsel subsequently asked for a mistrial because
“[e]vidence was presented by Officer Ziino that’s totally
inappropriate about my client’s criminal history. Not only did he
do it once, but he did it two more times during his testimony, and
it’s absolutely inappropriate and no way I’m going to avail [sic:
prevail?] in front of the jury.”
30
The trial court acknowledged that this kind of information
could prejudice a jury, but denied the mistrial motion because
“the jury only heard that Mr. Whitmore may have been arrested,
and in Officer Ziino’s mind, convicted, but they know not what
for, I don’t think it rises to the level of so prejudicial conduct that
it’s [going to] deny Mr. Whitmore a fair trial. . . . [B]ut I will
admonish the jury if, . . . you wish, and I’ll do it right away, that
they are to disregard any mention by Officer Ziino of a prior
arrest connected to Mr. Whitmore and nothing more.” Defense
counsel declined the offer, saying “I think the admonishment
would raise the specter of the criminal history even further and
highlight it for the jury.”
In later trial testimony, Detective Jordan testified about
going to La Verne on November 29, 2012, to arrest Whitmore.
Jordan testified Whitmore was taken into custody and searched.
The prosecutor asked if the items taken from Whitmore’s
possession included “any kind of controlled substances?” Jordan
testified one item taken from Whitmore appeared to be
methamphetamine. Defense counsel objected and a sidebar
followed. Defense counsel told the trial court: “My objection is
that possession of methamphetamine is filed and charged in a
completely different case. It has nothing to do with this case. It’s
completely irrelevant. He’s only bringing it up to prejudice my
client.” The prosecutor argued the evidence went to motive,
pointing out that “multiple individuals in this case are in
possession of methamphetamine. . . . I think I even . . . stated it
in my opening, that that is the motivation for why they are doing
all these residential burglaries. They are trying to get money to
buy drugs.”
31
The trial court noted there had been evidence that
Vantuinen, Valentine, High, Duran and Mulligan had all been
associated with drugs, and “that can help explain why
individuals would commit thefts, which is typical of people who
abuse drugs. If this helps the People establish or explain why
Mr. Whitmore is involved, well, then, so be it. It is relevant. It’s
not prejudicial to the extent that it’s going to deny Mr. Whitmore
a fair trial. It is motive evidence and I cannot keep it out.”
b. Discussion.
“A motion for mistrial is directed to the sound discretion of
the trial court. We have explained that ‘[a] mistrial should be
granted if the court is apprised of prejudice that it judges
incurable by admonition or instruction. [Citation.] Whether a
particular incident is incurably prejudicial is by its nature a
speculative matter, and the trial court is vested with considerable
discretion in ruling on mistrial motions.’ ” [Citation.] (People v.
Jenkins (2000) 22 Cal.4th 900, 985–986.) A mistrial motion
should be granted if the trial court determines a party’s chances
of receiving a fair trial have been irreparably damaged. (People
v. Welch (1999) 20 Cal.4th 701, 749.)
Whitmore argues he was prejudiced because the jury
learned he had multiple prior arrests and convictions, that “[his]
last arrest was for stealing copper wire in 2011 or 2010”, and that
he was in possession of methamphetamine when he was arrested.
He asserts that “[m]ost jurors likely would view an arrest in 2010
or 2011 as recent relevant to the charged offenses.” The problem
with this part of his argument is that it misstates Officer Ziino’s
testimony, which was only that he believed Whitmore had last
been arrested for stealing copper wire in 2011 “or earlier.” In any
event, we agree there was a danger that Ziino’s testimony might
32
prejudice the jury because theft was precisely the crime
Whitmore was now on trial for: residential burglaries, conspiracy
to commit burglary and conspiracy to receive stolen property.
Even the Attorney General concedes that “Ziino should not have
mentioned appellant Whitmore’s prior conviction and arrest.”
Evidence of a defendant’s prior arrests or convictions is
generally deemed unduly prejudicial and inadmissible. “There is
little doubt exposing a jury to a defendant’s prior criminality
presents the possibility of prejudicing a defendant’s case and
rendering suspect the outcome of the trial.” (People v. Harris
(1994) 22 Cal.App.4th 1575, 1580; see, e.g., People v. Anderson
(1978) 20 Cal.3d 647, 650 [“it has long been held that evidence of
an accused’s prior arrests is inadmissible.”].) However, although
“[a]n improper reference to a prior conviction may be grounds for
reversal in itself [citations] [such evidence may be] nonprejudicial
‘in the light of a record which points convincingly to guilt.’ ”
(People v. Rolon (1967) 66 Cal.2d 690, 693; compare People v.
Harris, supra, at p. 1581 [harmless where evidence of guilt was
“overwhelming”] and People v. Duran (1969) 269 Cal.App.2d 112,
119 [harmless where evidence “convincingly pointed to
defendant’s guilt”] with People v. Rolon, supra, at pp. 693–694
[not harmless in very close case: there were unimpeached alibi
witnesses and the admitted perpetrator testified his accomplice
had been somebody else]) and People v. Allen (1978)
77 Cal.App.3d 924, 935 [not harmless because “an extremely
close case”].)
In this case, the evidence against Whitmore was
overwhelming: the vacation stop lists were found in his car;
stolen property was found in his possession; there was a video of
him entering Ma’s house in order to commit burglary; he was
33
photographed trying to obtain money from an ATM machine
using Dumas’s stolen credit card; and he left his DNA on a
cigarette butt found at the scene of the Dickie burglary. In his
opening brief on appeal, Whitmore has not one word to say about
the vast amount of inculpatory evidence presented against him at
trial. Whitmore relies on People v. Allen, supra, 77 Cal.App.3d
924, but that was “an extremely close case” in which a reference
to the fact the defendant was on parole might well have tipped
the balance. (Id. at p. 935.) The case at bar was far different
from that case.
Hence, the trial court did not err by denying a mistrial
because of the copper wire theft evidence.
Furthermore, we do not believe there was any error in
admitting evidence that Whitmore had methamphetamine in his
possession when arrested. As the trial court recognized, this
evidence went to Whitmore’s motive for being involved in the
conspiracies and for committing the burglaries and receiving
stolen property.13
In his reply brief, Whitmore states: “While the prosecutor
argued [motive] as justification for introducing the
[methamphetamine] evidence. . . . the prosecutor barely
mentioned a methamphetamine motive during closing
argument.” We cannot agree with this characterization of the

13 “Evidence having a tendency to prove motive of the
defendant to commit the particular crime charged is admissible
to assist in resolving a doubt as to the identity of the perpetrator,
no matter how that evidence may reflect on the defendant and
even when it may show that he has committed other offenses.
[Citations.]” (People v. Morales (1979) 88 Cal.App.3d 259, 264.)
34
prosecutor’s following remarks during closing argument:
“Finally, what is the overriding motive in this case that we’ve
seen attached to every single suspect in this case? It’s drugs. It’s
drugs. Mulligan OD’s at the Morongo Casino . . . on heroin.
Methamphetamine is found on Vantuinen, it’s found on
Whitmore, it’s found on Box, it’s found on [Margaret] High and
Brian Duran. It’s related to everything. Drugs are a motive in
this case. [¶] We don’t need to prove motive. There is an
instruction that talks about that. But you can consider motive,
again, as another element amongst the hundreds that link these
defendants together.”
Moreover, even if the methamphetamine testimony should
not have been admitted, we would still find that—as with the
theft arrest testimony—in light of the overwhelming evidence
against Whitmore the result would have been no different
without the evidence. (See, e.g., People v. Davis (2005) 36 Cal.4th
510, 555 [finding Miranda violation harmless because, “[g]iven
the many other damaging admissions defendant made on the
tape recording, the error in admitting this very brief exchange
was harmless beyond a reasonable doubt. Therefore, the trial
court did not abuse its discretion in denying defendant’s motion
for a mistrial.”].)
There was no error in denying Whitmore’s mistrial motion.
3. Trial court did not err in responding to jury question.
Whitmore and Vantuinen contend their convictions must be
reversed because the trial court failed to adequately respond to a
question from the deliberating jury. We disagree.
35
a. Background.
While deliberating, the jury sent the following question to
the trial court: “Legally, is indirect circumstantial evidence
enough to charge someone with committing burglary?’ ” In
response, the trial court said: “Well, not only is it enough to
charge someone, it’s enough to convict someone of a burglary.
But remember the jury instruction regarding circumstantial
evidence. If you can draw two or more reasonable conclusions
from the circumstantial evidence and one reasonable conclusion
points to innocence and another to guilt, you must adopt the one
that points to innocence. However, when considering
circumstantial evidence, you must consider only reasonable
conclusions. You must reject any that are unreasonable. So,
again, hopefully, that will answer [your question].”
Whitmore and Vantuinen contend the trial court’s response
was inadequate because the jury had no business worrying about
what evidence was sufficient for charging a defendant, the court
failed to clarify that there is no such thing as “indirect
circumstantial evidence,” and the jury was likely to have believed
it could convict the defendants based on some standard less than
beyond a reasonable doubt.
b. Discussion.
Section 1138 provides: “After the jury have retired for
deliberation, if. . . they desire to be informed on any point of law
arising in the case, they must require the officer to conduct them
into court. Upon being brought into court, the information
required must be given in the presence of, or after notice to, the
prosecuting attorney, and the defendant or his counsel, or after
they have been called.” “The court has a primary duty to help the
jury understand the legal principles it is asked to apply.
36
[Citation.] This does not mean the court must always elaborate
on the standard instructions. Where the original instructions are
themselves full and complete, the court has discretion under
section 1138 to determine what additional explanations are
sufficient to satisfy the jury’s request for information. [Citation.]
Indeed, comments diverging from the standard are often risky.
[Citation.]” (People v. Beardslee (1991) 53 Cal.3d 68, 97.)
As the Attorney General points out, defendants waived this
issue by not, at the time, objecting to the trial court’s answer.14
(See People v. Kageler (1973) 32 Cal.App.3d 738, 745–746 [failure
to object when trial court answers jury question may be
construed as tacit approval and waives issue for appeal]; see also
People v. Boyette (2002) 29 Cal.4th 381, 430 [“When the trial
court proposed its decision not to respond to the juror’s note . . .
defendant did not object. He thus failed to preserve the issue for
appeal and, indeed, may be held to have given tacit approval of
the trial court’s decision. [Citation.]”].)
But even had the issue been preserved, we cannot see that
there was any error.
The defendants complain the jury’s question manifested a
complete misunderstanding of circumstantial evidence and
demonstrated that they had “invented” an imaginary third kind
of evidence: direct evidence, circumstantial evidence and (the
non-existent) “indirect circumstantial evidence.” Vantuinen
argues, “It is true the trial court instructed the jury on the

14 As Vantuinen acknowledges, by agreement of the parties
defense counsel for Whitmore was standing in for all the
defendants when this jury question was asked and he did not
object to the court’s answer to the question.
37
difference between direct and circumstantial evidence (CALCRIM
No. 233 and how it was to use circumstantial evidence in deciding
guilt or innocence (CALCRIM Nos. [234 & 235]). Yet, neither of
these instructions discuss or include ‘indirect circumstantial
evidence,’ the jury’s definition or categorization of some of the
evidence offered during trial. . . . To conclude that the term
‘indirect circumstantial evidence’ merely was a common or nonlegal
description of circumstantial evidence is speculation at best.
Instead, the most logical conclusion is that the jury was referring
to a lesser form of circumstantial evidence.”
It appears to us, however, that it is defendants who are
mistakenly speculating as to what was going on in the jurors’
minds. In particular, both Vantuinen and Whitmore are ignoring
the actual words of CALCRIM No. 233, which the jury was given
by the trial court as follows:
“Facts may be proved by direct or circumstantial evidence
or by a combination of both. Direct evidence can prove a fact by
itself. For example, if a witness testifies that he saw it raining
outside before he came into the courthouse, that testimony is
direct evidence that it was raining.
“Circumstantial evidence also may be called indirect
evidence. Now, circumstantial evidence does not directly prove
the fact to be decided but is evidence of another fact or group of
facts from which you may logically and reasonably infer the truth
of the fact in question. For example, if a witness testifies that he
saw someone come inside wearing a raincoat covered with drops
of water, that testimony is circumstantial evidence because it
may support a conclusion that it was raining outside.
“Both direct and circumstantial evidence are acceptable
types of evidence to prove or disprove the elements of a charge
38
including intent, mental state, and acts necessary to a conviction.
Neither is necessarily more reliable than the other. Neither is
entitled to any greater weight than the other. You must decide
whether a fact in issue has been proved based on all the
evidence.” (Italics added.)
The defendants have entirely ignored the italicized
language above which told the jury that “indirect evidence” and
“circumstantial evidence” were the same thing. In light of this
instruction, we find it far more likely that—rather than having
invented a third category of evidence called “indirect
circumstantial evidence”—the jury was merely being colloquial
(albeit, redundantly so) in referring to what it believed to be the
opposite of direct evidence. (See People v. Goldstein (1956)
139 Cal.App.2d 146, 152 [“The terms ‘indirect evidence’ and
‘circumstantial evidence’ are interchangeable and synonymous.”];
accord People v. Yokum (1956) 145 Cal.App.2d 245, 250.)
Hence, we disagree with Vantuinen’s assertion that the
trial court somehow communicated to the jury that “some lesser
form of evidence, or possibly even speculation, was sufficient for
conviction.” Rather, we agree with the Attorney General that,
“[w]hile the jury’s use of the adjective ‘indirect’ to describe
circumstantial evidence may have been redundant, it was also
understandable as a matter of common sense and parlance. It is
likely that by using the word ‘indirect’ the jury was simply
distinguishing circumstantial evidence as something different
than ‘direct’ evidence.” “[T]here was no reason for the court to
believe that the jury had invented a new form of evidence out of
thin air on its own initiative.”
The defendants also complain that the trial court’s answer
“allowed the jury to conflate two standards, namely evidence
39
sufficient for charging a crime with evidence sufficient for
conviction of that same crime.[15] In other words, the court failed
to clarify that the jury was not to decide what evidence was
sufficient for charging an individual with a crime.” (Italics
added.)
But the defendants do not dispute that the jury was
adequately and properly instructed on the beyond-a-reasonabledoubt
burden of proof borne by the prosecution, both by the
instructions as a whole and by the two other circumstantial
evidence instructions given to the jury (CALCRIM Nos. 234 &
235), which specifically directed that “before you may rely on
circumstantial evidence to conclude that a fact necessary to find
the defendant guilty has been proved, you must be convinced that
the People have proved each fact essential to that conclusion
beyond a reasonable doubt.”
Moreover, the issue of “charging” was raised during closing
argument when the prosecutor told the jury: “We started with a
2009 residential burglary involving Mr. Stevens, an L.A. Times
customer burglarized while he was on vacation . . . . Why is that
incident important? We didn’t even charge Mr. Stevens as a
victim of residential burglary.” (Italics added.) And Valentine’s
counsel told the jury during closing argument: “The prosecution
makes a lot out of the fact that, during these phone calls,
Mr. Valentine knows about the vacation list. No, you are wrong.

15 The burden of proof to charge a defendant with a crime, by
either indictment or information, is “ ‘reasonable or probable
cause’ to believe that he or she was guilty” (People v. Mower
(2002) 28 Cal.4th 457, 473), whereas the burden of proof for
conviction is “ ‘beyond a reasonable doubt.’ ” (Id. at p. 477.)
40
Mr. Valentine was arrested, charged with receiving stolen
property. Interesting, not burglary. Not burglary. He was
charged with receiving stolen property.” (Italics added.)
In light of these references to the charging aspect of a
criminal prosecution, we disagree with Vantuinen’s assertion
that charging “was of no concern to the jury.”16
Furthermore, the series of cases cited by the defendants
that found reversible error in a trial court’s response to a jury
question were all cases in which the court misled the jury as to a
very specific and crucial aspect of the case. (See Bollenbach v.
United States (1946) 326 U.S. 607, 613 [66 S.Ct 402] [jury
incorrectly told it could convict defendant of conspiracy to
transport stolen notes even if he joined in their disposal after
transportation had ended]; McDowell v. Calderon (9th Cir. 1997)
130 F.3d 833, 838 (en banc) [during capital case penalty phase,
court’s failure to answer jury question meant 11 jurors did not
understand that defendant’s mitigating evidence must be given

16 Although not denominated as an appeal issue, Whitmore
complains that—contrary to the Bench Notes directions—the
trial court instructed the jury with both CALCRIM No. 224 and
CALCRIM No. 225. It is true that there is no need to give both
instructions. (See People v. Samaniego (2009) 172 Cal.App.4th
1148, 1172 [“CALCRIM Nos. 224 and 225 provide essentially the
same information on how the jury should consider circumstantial
evidence, but CALCRIM No. 224 is more inclusive.”] But that’s
because No. 224 covers any use of circumstantial evidence, while
No. 225 covers the use of circumstantial evidence to prove state of
mind. Whitmore has not cited any authority, or given any
reasoned argument, why he would have been prejudiced by the
jury hearing both instructions.
41
consideration]; U.S. v. Gordon (9th Cir. 1988) 844 F.2d 1397,
1402 [by failing to answer jury question, court “fail[ed] to cure
the risk of a nonunanimous verdict resulting from the duplicitous
indictment”]; People v. Hodges (2013) 213 Cal.App.4th 531, 543
[court’s response to jury question “was misleading because it
allowed the jury to conclude defendant was guilty of robbery
without regard to whether defendant intended to permanently
deprive the owner of the property at the time the force or
resistance occurred”]; People v. Gonzales (1999) 74 Cal.App.4th
382, 389–391, disapproved on other grounds in People v.
Anderson (2011) 51 Cal.4th 989, 998, fn. 3 [court failed to clarify
for jury possible effect of “accident” defense on “willful intent”
element of domestic violence charge]; People v. Thompkins (1987)
195 Cal.App.3d 244, 251 [“trial judge’s response that there is no
relationship between heat of passion and premeditation was in
error . . . [because] they are mutually exclusive”].) In the instant
case, the court repeated the instruction regarding circumstantial
evidence and did not misstate the law or mislead the jury.
Hence, we conclude the trial court did not err when it
responded to the jury’s question.
4. There was no section 654 violation in Vantuinen’s
sentencing for possession of a rifle and ammunition, but his
sentence for possession of a shotgun should not have been stayed.
Vantuinen contends the trial court erred by not staying,
under the authority of section 654, his concurrent sentence for
illegal possession of ammunition because he was also sentenced
for illegal possession of a rifle. We disagree. We also conclude,
however, that the trial court did err by staying the sentence on
Vantuinen’s conviction for illegal possession of a shotgun. We
42
will reverse that sentencing decision and remand to the trial
court for resentencing on that conviction.
a. Legal principles.
“Section 654, subdivision (a), provides in pertinent part,
‘[a]n act or omission that is punishable in different ways by
different provisions of law shall be punished under the provision
that provides for the longest potential term of imprisonment, but
in no case shall the act or omission be punished under more than
one provision.’ Section 654 therefore ‘ “precludes multiple
punishment for a single act or for a course of conduct comprising
indivisible acts. ‘Whether a course of criminal conduct is divisible
. . . depends on the intent and objective of the actor.’ [Citations.]
‘[I]f all the offenses were merely incidental to, or were the means
of accomplishing or facilitating one objective, defendant may be
found to have harbored a single intent and therefore may be
punished only once.’ [Citation.]” [Citation.]’ [Citations.]
However, if the defendant harbored ‘multiple or simultaneous
objectives, independent of and not merely incidental to each
other, the defendant may be punished for each violation
committed in pursuit of each objective even though the violations
share common acts or were parts of an otherwise indivisible
course of conduct. [Citation.]’ [Citations.]
“Whether section 654 applies in a given case is a question
of fact for the trial court, which is vested with broad latitude in
making its determination. [Citations.] Its findings will not be
reversed on appeal if there is any substantial evidence to support
them. [Citations.] We review the trial court’s determination in
the light most favorable to the respondent and presume the
existence of every fact the trial court could reasonably deduce
43
from the evidence. [Citation.]” (People v. Jones (2002)
103 Cal.App.4th 1139, 1142–1143.)
b. Background.
Vantuinen was convicted for possession of a .22–caliber
rifle found during the January 9, 2013, search of his residence.
He was also convicted of possession of .22–caliber ammunition
found during the same search. The rifle was found in a closet in
Vantuinen’s bedroom, and the ammunition was found under his
bed in the same room.
Prior to sentencing, the trial court heard arguments on
whether these offenses were subject to section 654. The court
concluded that, because the ammunition was not loaded into the
rifle but rather stored separately, section 654 did not apply.
Vantuinen argues this was incorrect because his possession
of both a rifle and ammunition that could have been loaded into
that rifle constituted but a single course of action with only a
single intent: to possess a loaded gun. He asserts the Attorney
General’s position was that he “intended to sell the items
separately and did not plan to use the rifle himself. But this is
mere speculation without support in the record. Instead,
appellant’s objective was to possess the rifle and to have the
ability to use and fire the rifle. He told Detective Jordan that he
used the rifle for the purpose of hunting.” Vantuinen argues that
“[n]o evidence supports a conclusion that [he] illegally possessed
the ammunition with a different criminal objective than his
objective in possessing the firearm, namely to use the gun for
hunting. He may have kept the ammunition separate from the
rifle for safety reasons.”
Even though Detective Jordan did testify Vantuinen told
him he used the rifle for hunting, Jordan did not testify that
44
Vantuinen told him anything about the ammunition, and the
context of Vantuinen’s remarks on the subject would have given
the trial court little reason to believe his “hunting” statement:
“Q. Did you ask him about the Mossberg shotgun and the
.22-caliber rifle?
“A. [by Detective Jordan] Yes.
“Q. What did he initially tell you about that?
“A. That they were his and that they were used for
hunting.”
But when Jordan reminded Vantuinen that, as a convicted
felon, he was not allowed to possess any firearms, Vantuinen said
“[t]he firearms were not his.”
Two of the cases relied on by Vantuinen are unhelpful to
him. In both People v. Jones (2012) 54 Cal.4th 350 (Jones), and
People v. Atencio (2012) 208 Cal.App.4th 1239 (Atencio), there
was only one item of contraband involved: a single gun. In
Jones, possession of that single gun violated three statutes:
possession of a firearm by a felon, carrying a readily accessible
concealed and unregistered firearm, and carrying an unregistered
loaded firearm in public. In Atencio, possession of a single gun
resulted in convictions for grand theft and felon in possession of a
firearm.
Both cases held that section 654 applied, either on the
theory there had been only one act in each case or because the
defendant only had a single intent and objective. As explained by
Atencio: “If defendant’s taking of the pistol and his possession of
it through the following day are considered a single physical act,
then pursuant to Jones defendant cannot be punished for the
possession of the pistol in addition to being punished for the theft
of it. But even if the taking and the subsequent possession do not
45
constitute a single physical act, defendant still can be punished
only for the theft. This is so because when a defendant’s crimes
involve a course of conduct, ‘[w]hether [the] course of criminal
conduct is divisible and therefore gives rise to more than one act
within the meaning of section 654 depends on the intent and
objective of the actor.’ ” (Atencio, supra, 208 Cal.App.4th at
pp. 1243–1244, fn. omitted.) “The only point in taking the gun
was to gain possession of it . . . .” (Id. at p. 1244.)
But the case at bar involved two items of contraband: the
rifle and the ammunition.
A better case for Vantuinen is People v. Lopez (2004)
119 Cal.App.4th 132, which held that multiple punishment for
possessing a single loaded firearm was proscribed by section 654.
Of course, in the case at bar the ammunition was not loaded into
the rifle, but Vantuinen argues that was not the basis for the
holding in Lopez: “[T]he fact the bullets were loaded into the
firearm was not the key fact upon which the Lopez Court
concluded the sentence for unlawful possession of ammunition
must be stayed under section 654. Section 654 applied because,
‘the obvious legislative intent is to prohibit these persons from
combining firearms with ammunition.’ [Citing Lopez.]
Ammunition is combined with a firearm when it is in the firearm
or available to be loaded into the firearm.”
We believe Vantuinen is quoting Lopez out of context and
that the full text clearly indicates that it was precisely the fact
that all of the ammunition had been loaded into the gun which
rendered section 654 inapplicable. This is what Lopez said:
“While possession of an unloaded firearm alone can aid a
person committing another crime, possession of ammunition
alone will not. The former may be used as a club and a victim
46
may be fearful that the firearm is loaded. While the latter may
be thrown at a victim, it is extremely unlikely that possession of
bullets alone would scare anyone but the most timid. In
combination, however, the mixture is lethal and that is why
criminals have a penchant for loaded firearms.
“The Legislature has wisely declared that specified people
should not possess firearms and/or ammunition. The obvious
legislative intent is to prohibit these persons from combining
firearms with ammunition. Appellant’s obvious intent was to
possess a loaded firearm.
“In resolving section 654 issues, our California Supreme
Court has recently stated that the appellate courts should not
‘parse[ ] the objectives too finely.’ [Citation.] To allow multiple
punishment for possessing ammunition in a firearm would, in our
judgment, parse the objectives too finely. While there may be
instances when multiple punishment is lawful for possession of a
firearm and ammunition, the instant case is not one of them.
Where, as here, all of the ammunition is loaded into the firearm,
an ‘indivisible course of conduct’ is present and section 654
precludes multiple punishment.” (People v. Lopez, supra,
119 Cal.App.4th at p. 138, italics added.)17

17 See also People v. Sok (2010) 181 Cal.App.4th 88, 100,
fn. omitted [“[A]s the People concede, having sentenced Sok for
his two convictions for unlawful possession of a firearm [citation],
the trial court erred in failing to stay the sentences for counts 2
and 8 (unlawful possession of ammunition . . .), pursuant to
section 654 because the ammunition at issue in those two counts
was either loaded into Sok’s handgun or had been fired from that
gun.”].)
47
We think this language clearly distinguishes the two
situations: one where all the ammunition has been loaded into
the firearm, and the other where the ammunition and the
firearm are separate. The latter situation is akin to the
simultaneous possession of multiple items of contraband, which
even after Jones does not fall under section 654. As Jones
explained: “We recognize that what is a single physical act might
not always be easy to ascertain. In some situations, physical acts
might be simultaneous yet separate for purposes of section 654.
For example, in Hayes, both the majority and the dissenters
agreed that, to use Chief Justice Traynor’s words, ‘simultaneous
possession of different items of contraband’ are separate acts for
these purposes. [Citation.] As Chief Justice Traynor explained,
‘the possession of one item is not essential to the possession of
another separate item. One does not possess in the abstract;
possession is meaningless unless something is possessed. The
possession of each separate item is therefore a separate act of
possession.’ [Citation.] We do not intend to cast doubt on the
cases so holding.” (Jones, supra, 54 Cal.4th at p. 358, fn. omitted,
italics added.)
Here, the trial court was not bound to believe Vantuinen’s
statement to Detective Jordan that he used the rifle for hunting.
In fact, it was just as likely that the police found the rifle and
ammunition in Vantuinen’s bedroom (along with other stolen
property) because they were stolen property that he intended to
sell. As such, there is substantial evidence to support the trial
court’s section 654 finding.
However, we do not believe substantial evidence supports a
second section 654 finding, although no party on appeal has
raised the issue. That is, the trial court appears to have erred by
48
staying any sentence on Vantuinen’s conviction for possessing the
shotgun. (See People v. Sanders (2012) 55 Cal.4th 731, 743
[“Defendant’s two convictions for violating section 12021(a)(1),
based on his simultaneous possession of two firearms, are exempt
from section 654’s application because the Legislature intended
that the possession of “each firearm . . . shall constitute a distinct
and separate offense” under that statute. (§ 12001, subd. (k).)”].)
Because “[e]rrors in the applicability of section 654 are
corrected on appeal regardless of whether the point was raised by
objection in the trial court or assigned as error on appeal” (People
v. Hester (2000) 22 Cal.4th 290, 295), we will remand to the trial
court for resentencing on Vantuinen’s conviction for possessing
the shotgun.
5. Insufficient evidence of Valentine’s strike allegation.
Valentine contends there was insufficient evidence that his
1986 conviction for aggravated assault constituted a prior serious
felony conviction, thereby making him subject to Three Strikes
sentencing. This claim has merit, and we will reverse the strike
finding and remand to the trial court for resentencing.18

18 In his current trial, Valentine did not contest the fact that
he had been convicted in 1986 of aggravated assault, but he
retained the option of challenging the legal effect of that prior
conviction. At his sentencing hearing, Valentine argued that the
facts surrounding his 1986 conviction were disputed and,
therefore, it could not be proved that he had violated section 245,
subdivision (a), by using a deadly weapon as opposed to using
force likely to cause great bodily injury.
49
In 1986, Valentine pled guilty to violating section 245,
subdivision (a), which—at that time19—prohibited assault “with a
deadly weapon or instrument other than a firearm or by any
means of force likely to produce great bodily injury.” However, to
qualify as a strike under section 667, that prior conviction had to
be for “assault with a deadly weapon, firearm, machinegun,
assault weapon, or semiautomatic firearm or assault on a peace
officer or firefighter, in violation of Section 245.” (§ 1192.7,
subd. (c)(31); see People v. Rodriguez (1998) 17 Cal.4th 253, 261
[“one may commit the assault with force ‘likely’ to cause great
bodily injury without . . . using a deadly weapon. Accordingly,
the least adjudicated elements of the crime defined in
section 245(a)(1) are insufficient to establish a ‘serious’ felony.”].)
In Rodriguez, the People claimed the defendant’s 1983
conviction for aggravated assault qualified as a strike. However,
the only evidence they offered was an abstract of judgment
showing that he (like Valentine) had pled guilty to former
section 245, subdivision (a). Rodriguez held this proved nothing
more than the least adjudicated elements of the offense, which
did not prove the defendant had committed the crime in a
manner qualifying it as a strike. Rodriguez said: “Certainly the
prosecution was entitled to go beyond the least adjudicated
elements of the 1983 conviction and use the entire record to prove
that defendant had in fact personally inflicted great bodily injury

19 In 2011, the Legislature amended section 245 by deleting
from subdivision (a)(1) the phrase “or by any means of force likely
to produce great bodily injury,” and by adding a new subdivision
(a)(4) to section 245 which defined the offense of assault by force
likely to produce great bodily injury. (Stats. 2011, ch. 183, § 1.)
50
(§ 1192.7, subd. (c)(8)) or personally used a dangerous or deadly
weapon (§ 1192.7, subd. (c)(23)). (People v. Guerrero (1988)
44 Cal.3d 343, 355-356 . . . .) However, the People failed to do so.
They offered only the abstract of judgment, which proved nothing
more than the least adjudicated elements of the charged offense.
The evidence supporting this strike allegation was thus
insufficient, and the finding must therefore be reversed.” (People
v. Rodriguez, supra, 17 Cal.4th at pp. 261-262.)
In the case at bar, there were two principal sources of
information regarding the 1986 incident, which apparently
involved a violent encounter between Valentine and two others,
on one side, and off-duty police officer Daryl Russell and his
friend Arch Hobgood, on the other. One source was a partial
excerpt from the preliminary hearing that led to Valentine’s plea.
Russell testified that a car driven by Frank Webb (carrying
Valentine and his brother Dennis Copley) began harassing him
and Hobgood. Russell testified that Webb and Valentine threw
beer bottles, shattering his windshield and hitting him in the
head, after which Russell retrieved a gun from his trunk and shot
at Webb and Valentine when it appeared they were going to
throw more bottles.
At the sentencing hearing, Valentine related a very
different story. He testified he had been driving (not Webb) and
that an argument between the two groups turned into a fistfight
during which Webb was fighting with Russell while Valentine
was fighting with Hobgood. Afterward, Russell went to his car
trunk, retrieved a gun and shot Webb. Russell also shot at
Valentine, but missed. Valentine testified he then threw a beer
bottle at Russell which missed because Russell ducked.
Valentine testified he threw the bottle “[b]ecause [Russell] shot at
51
me and missed and I was scared because the bullet came pretty
close to my head,” and “I was . . . throwing it just to . . . try to
maybe divert his attention.” Valentine testified he ran off after
throwing that single bottle, but that other bottles were thrown by
Webb and Copley.
The trial court acknowledged Valentine had been charged
with both theories of aggravated assault in 1986—namely, use of
a deadly weapon and use of force likely to produce great bodily
injury—and that “[o]nly one of those two theories would qualify
as a strike and that would be assault with a deadly weapon.” The
court also acknowledged that, when Valentine’s plea was taken,
“both theories were recited.” Defense counsel argued “the strike
is defective based on the ambiguity.” The prosecutor argued the
plea-taking was not ambiguous but, in any event, “the court is
entitled to look behind . . . the information and the plea to the
facts underlying the conviction,” which “substantiate this is an
assault with a deadly weapon.” Relying on the police reports and
the preliminary hearing testimony, the trial court concluded
“there is ample evidence supporting assault with a deadly
weapon, to wit, beer bottle.”
Until recently, this analytic procedure would have been
considered a proper action for the trial court to take. “[F]or years
trial courts in California have been allowed to determine whether
a prior conviction qualifies as a strike by looking to the ‘entire
record of conviction.’ [Citations.] But in Descamps [v. United
States (2013)] 570 U.S. __ [133 S.Ct. 2276], the United States
Supreme Court pointed out the constitutional problems in doing
so.” (People v. Saez (2015) 237 Cal.App.4th 1177, 1199.) “[A]
court may not under the Sixth Amendment ‘ “make a disputed”
determination “about what the defendant and state judge must
52
have understood as the factual basis of the prior plea,” or what
the jury in a prior trial must have accepted as the theory of the
crime.’ [Citation.]” (Id. at pp. 1207–1208.) Agreeing with Saez,
the Court of Appeal in People v. Marin (2015) 240 Cal.App.4th
1344, 1362, concluded: “Descamps leaves no true room for debate
that this type of factfinding violates the Sixth Amendment.” (See
also People v. Wilson (2013) 219 Cal.App.4th 500, 516 [“A court
may not impose a sentence above the statutory maximum based
on disputed facts about prior conduct not admitted by the
defendant or implied by the elements of the offense.”].)20
Here there were disputed facts regarding how Valentine
violated section 245, subdivision (a), in 1986. The Attorney
General argues: “The court acknowledged the inconsistencies in
the record as to who caused [Russell’s] actual injuries but held
that it was incontrovertible that appellant Valentine threw a beer
bottle during the incident. Therefore, even assuming that
appellant Valentine’s bottle missed its target and did not cause
the victim’s injuries, there was still sufficient evidence to support
the conviction for assault with a deadly weapon.”
But as the Attorney General acknowledges, there were
factual inferences that had to be drawn from the preliminary
hearing testimony in order to reach that conclusion. For

20 Our Supreme Court is currently considering this issue in
People v. Gallardo, S231260 (review granted Dec. 17, 2015),
which presents the following issue: Was the trial court’s decision
that defendant’s prior conviction constituted a strike
incompatible with Descamps v. U.S. (2013) 570 U.S. __ [133 S.Ct.
2276] because the trial court relied on judicial fact-finding beyond
the elements of the actual prior conviction?
53
instance: “[After] his windshield shattered from the impact of a
beer bottle[,] . . . Russell saw appellant Valentine making a
throwing motion with his arm and immediately was hit in the
head with another bottle. This constituted powerful
circumstantial evidence that appellant Valentine threw a bottle
at Officer Russell.” (Italics added.) Again: “Furthermore,
appellant Valentine admitted that the bottle he threw at Officer
Russell missed because ‘[h]e ducked.’ This is important because
it implies that appellant Valentine aimed the throw at Officer
Russell with the intent to hit him, but that Officer Russell
fortuitously moved out of the way.” (Italics added.) Moreover,
the trial court resolved a factual dispute by deciding to disbelieve
Valentine’s self-defense story, while believing Russell’s story that
there was no fistfight but only an unprovoked attack on him and
Hobgood.
All of this the trial court was not permitted to do under
Descamps. Valentine contends the trial court violated the Sixth
Amendment by adjudicating factual disputes in order to find that
his 1986 conviction had been for assault with a deadly weapon
rather than assault by means of force likely to cause great bodily
injury. As a result, Valentine argues, there was insufficient
evidence to sustain a Three Strikes sentence. We agree and
conclude his sentence must be reversed.
However, because retrial of a prior conviction allegation
after a reversal for insufficient evidence is permissible (see
Monge v. California (1998) 524 U.S. 721, 734 [118 S.Ct. 2246];
People v. Marin, supra, 240 Cal.App.4th at p. 1365), we will
remand Valentine’s case to the trial court for a retrial of this
strike allegation.
54
DISPOSITION
The judgments are affirmed in part, reversed in part, and
remanded in part with directions. Valentine’s habeas corpus
petition is denied as moot.
The judgment against Whitmore is affirmed. The judgment
against Valentine is affirmed except as to the prior strike finding,
which is reversed and remanded to the trial court for a retrial
(which must be a jury trial unless waived by Valentine). The
judgment as to Vantuinen is affirmed in part and reversed in
part (as to the section 654 ruling regarding his conviction for
possessing a second gun). Vantuinen’s case is remanded to the
trial court for resentencing on that conviction.
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS
EDMON, P. J.
We concur:
ALDRICH, J.
LAVIN, J.