Trial court had no duty to instruct on lesser included offense (LIO) of misdemeanor evading where no evidence showed the defendants committed the misdemeanor, rather than the felony, offense. Defendants were convicted of first degree burglary, conspiracy to commit burglary, felony evading, and other offenses. Gang enhancements were found true. On appeal, defendants faulted the trial court for not instructing on misdemeanor evading as an LIO of felony evading. Held: Affirmed. The difference between felony evading and misdemeanor “evading is that in committing the felony, the pursued vehicle is driving in a willful or wanton disregard for the safety of persons or property” (Veh. Code, § 2800.2), while misdemeanor evading is accomplished without willful or wanton disregard for safety (Veh. Code, § 2800.1). The fact that two of the defendants were passengers in the getaway car is irrelevant to whether it was driven with willful and wanton disregard for the safety of others or property. There was evidence the getaway car proceeded at high speeds, broke numerous traffic laws, then crashed. The defendants who did not drive took full advantage of the evading, throwing stolen property out of the car windows and running away from police after the car crashed. Their conduct during the evading and after the getaway car crashed reflected that if they were guilty of evading at all, it was felony evading. Further, it was reasonably foreseeable that the getaway driver would flee from and attempt to evade police. It is mere speculation that only misdemeanor, rather than felony, evading was reasonably foreseeable.

The attempted burglary convictions were supported by sufficient evidence, which showed the defendants’ conduct constituted the execution of the planned burglaries. “A criminal attempt occurs when there is a specific intent to commit the crime and a direct but ineffectual act done toward its commission.” The defendant’s conduct must progress beyond mere preparation, although the act need not be an element of the target offense. The plainer the intent to commit the crime, the more likely that an act early in the stage of the offense will satisfy the overt act requirement. Appellants drove around suburban neighborhoods, knocking on doors to see if anyone was home. If no one answered the door, they might enter the residence and steal, as they did on three occasions. On other occasions when no one was home, they did not enter the house. But this does not mean the requisite intent for burglary had not yet been formed. The jury was appropriately instructed on the elements of burglary and attempt. The evidence supported the jury’s finding the defendants had completed their planning and preparation to commit the burglaries and were implementing their plan when they drove around “casing” houses to burgle.

The true findings on the gang enhancements were supported by substantial evidence. Defendants claimed the evidence showed only that the offenses were committed by gang members, not that the offenses were done with the specific intent to benefit the gang or that they had any gang-related purpose. A gang enhancement under Penal Code section 186.22, subdivision (b)(1) requires proof that the underlying felony was gang-related, i.e., that it was committed for the benefit of the gang, at the direction of a gang, or in association with a gang, and that it was committed with the specific intent to promote, further or assist in criminal conduct by gang members. The first prong is worded in the disjunctive, so the crime need not be done for the benefit of the gang so long as it was in association with or at the direction of another gang member. The evidence clearly showed that defendants committed the offenses together as gang members acting in association. The second prong of the enhancement was met because there is no requirement that the “criminal conduct” by gang members be distinct from the charged offense.

The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/B256361.PDF