People v. Becker

Opinion

BEDSWORTH, J. In a four-count information, Donald Stephen Becker and Montoye Jones were charged with conspiring and attempting to commit robbery and burglary. The information also alleged that defendants were armed with a firearm during these offenses and that Becker had suffered a prior strike conviction. Jones pleaded guilty and turned state’s evidence. Becker was convicted of the conspiracy counts and the enhancements, but was acquitted of the attempt counts. As a second strike offender, he was sentenced to seven years in prison, representing double the base term of three years, plus one year for the arming enhancement. Becker now contends the arming enhancement cannot be applied to the crime of conspiracy, and the court used the wrong standard in refusing to dismiss his prior strike conviction. Finding these contentions without merit, we affirm the judgment.

On May 5, 1998, Becker called Jones to enlist his help in getting $50,000 from Joseph Rokovich. He told Jones that Rokovich had cheated him out of the money and that he wanted to go to his house to get it back. Jones agreed to help out, once Becker assured him he could get a gun for the job.

That evening, Jones and Becker drove to get the gun and some ammunition. They also had duct tape, gloves and masks in their car. When they arrived at Rokovich’s house, Jones went up to the front door with the gun hidden under his sweatshirt. Becker also approached, but he stood off to the side.

Jones rang the doorbell and spoke to Rokovich through a barred security door. Claiming his car broke down, he asked if he could come in and use the phone. Instead, Rokovich dialed the phone for him. When no one answered, Rokovich told Jones he would have to go elsewhere for help. At that point, Jones and Becker abandoned their plan and drove away.

That was not the end of the matter, however. Suspicious of the late-night encounter, Rokovich called the police and reported Jones’s visit. Within minutes, patrol officers stopped defendants and placed them under arrest.

[297]I

Becker asserts his conviction for being armed with a firearm must be vacated because that enhancement cannot apply to the offense of conspiracy. He is wrong.

Becker was convicted of violating Penal Code section 12022, subdivision (a)(1), which states: “[A]ny person who is armed with a firearm in the commission or attempted commission of a felony shall, upon conviction of that felony or attempted felony, in addition and consecutive to the punishment prescribed for the felony or attempted felony of which he or she has been convicted, be punished by an additional term of one year, unless the arming is an element of the offense of which he or she was convicted. This additional term shall apply to any person who is a principal in the commission or attempted commission of a felony if one or more of the principals is armed with a firearm, whether or not the person is personally armed with a firearm.”