People v. Shively

Filed 5/27/25

CERTIFIED FOR PUBLICATION

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D082912

Plaintiff and Respondent,

v. (Super. Ct. No. SCD284726)

GREGORY JEROME SHIVELY,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of San Diego County, Daniel B. Goldstein, Judge. Reversing in part, otherwise affirming, and remanding with directions. Gerald J. Miller, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Steve Oetting and Daniel J. Hilton, Deputy Attorneys General, for Plaintiff and Respondent. A jury convicted Gregory Jerome Shively of 57 counts of conspiracy, burglary, attempted burglary, and robbery and found true gang allegations as to some but not all the counts. The trial court sentenced Shively to an

aggregate prison term of 45 years and eight months. Appointed appellate counsel filed a brief under People v. Wende (1979) 25 Cal.3d 436 (Wende) and Anders v. California (1967) 386 U.S. 738 (Anders) indicating he found no arguable issues for reversal on appeal. We offered Shively the opportunity to file his own brief, but he did not do so. After reviewing the entire record as required by Wende and Anders, we requested supplemental briefing on two issues. Having reviewed the submissions, we reverse the true findings on the gang allegations for insufficient evidence that the predicate burglaries provided a common, nonreputational benefit to the gang. In all other respects we affirm. We remand this matter to the trial court for full resentencing consistent with this opinion. I. A. From January 2017 through February 2018, Shively was the mastermind behind a residential burglary ring that targeted 31 different residences in San Diego County. During the first phase of the trial, which commenced in June 2023, the jury convicted Shively of all 57 counts with which he was charged: 25 counts of conspiracy (Pen. Code, § 182, subd. (a)(1); counts 1, 3, 6, 8, 10, 12, 14, 16, 18, 20, 22, 25, 28, 31, 33, 36, 38, 40, 42, 44, 46, 48, 50, 52 & 55), 29 counts of burglary (§ 459; counts 2, 4, 5, 7, 9, 11, 13, 15, 17, 19, 21, 23, 24, 26, 27, 29, 30, 32, 37, 39, 41, 43, 45, 47, 49, 51, 54, 56 & 57), two counts of attempted burglary (§§ 459 & 664; counts 34 & 35), and one count of robbery (§ 211; count 53). For each of the burglaries or attempted burglaries, the jury additionally found true an allegation that the dwelling was inhabited. (§ 460, subd. (a); counts 2, 4-5, 7, 9, 11, 13, 15, 17, 19, 21, 23, 24, 26, 27, 29, 30, 32, 34, 35, 37, 39, 41, 43, 45, 47, 49, 51, 54, 56 & 57.) The jury also found true