People v. Hines, C063021

CourtCalifornia Court of Appeals
Decision Date14 March 2014
Docket NumberC064130,C063021,C063709
PartiesTHE PEOPLE, Plaintiff and Respondent, v. RODNEY TYRONE HINES et al., Defendants and Appellants. THE PEOPLE, Plaintiff and Respondent, v. JERMAINE SHONTREL ELLINGTON, Defendant and Appellant. THE PEOPLE, Plaintiff and Respondent, v. ANGELO EDWARDLEE BYRD, Defendant and Appellant.

THE PEOPLE, Plaintiff and Respondent,
RODNEY TYRONE HINES et al., Defendants and Appellants.

THE PEOPLE, Plaintiff and Respondent,

THE PEOPLE, Plaintiff and Respondent,
ANGELO EDWARDLEE BYRD, Defendant and Appellant.



Filed: March 14, 2014


California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Super. Ct. No. 08F02808)

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Angelo Edwardlee Byrd, Jermaine Shontrel Ellington, Rodney Tyrone Hines and Mario Jamal Johnson were variously convicted of the following crimes in relation to a home invasion robbery: first degree residential robbery, first degree attempted robbery of a 14-year-old minor, first degree attempted robbery of a 10-year-old minor, assault with a firearm, assault with intent to commit rape, and sexual battery. Gang and firearms use enhancement allegations were found to be true.

Defendants appeal their convictions and/or sentences on various grounds. We consolidated the appeals for argument and decision and address the same or related claims together in this opinion.

We conclude the contentions of Byrd and Ellington lack merit, and Johnson's appellate claim is forfeited. As for Hines, we agree with his contention, discussed in part XIV of this opinion, that the trial court erred in imposing five-year sentence enhancements pursuant to Penal Code section 667, subdivision (a) on the determinate terms for count two (attempted robbery) and count six (sexual battery). We also agree with his contention, discussed in part XV of this opinion, that the trial court erred in imposing a full-term sentence on count six (sexual battery). His other contentions lack merit.

We will vacate the sentences imposed against Hines on counts two and six and remand the matter to the trial court to resentence Hines on those counts. The judgments are otherwise affirmed.


As she left her home L. J. (Mother) saw five Black men walk down the driveway she shared with her neighbors. The men walked on both sides of Mother's car to allow her car to pass. Mother saw the men's faces and clothing. Mother's children--a 14-year-old daughter (Daughter), a 10-year-old son (Son) and their younger siblings--were at home alone.

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Daughter was walking down the stairs of her home when five men, all carrying guns, rushed in the front door. One of the intruders, defendant Ellington, locked the door. The intruders pulled down their masks and Daughter saw their faces.

The intruders pointed their guns at Daughter and ordered her to get down. They demanded to know where the money was and said, "[w]e know you got money." They ransacked her house.

Daughter tried to run up the stairs but someone pulled her down the stairs by the back of her shirt. Some of the intruders, including one who wore grey Vans brand shoes, ran past Daughter to the second floor of the house. Daughter later identified the intruder with the grey Vans shoes as defendant Johnson.

One of the intruders who went upstairs entered Son's room and pointed a gun at Son. The intruder threatened to shoot Son if he moved or said anything.

Two of the intruders stayed with Daughter on the stairway. One of them wore shoes with multi-colored soles, like a pair of shoes Daughter owned. This intruder was later identified as Byrd.

On the stairway, Daughter was hit with a gun. Her head was held down and she was punched in the face. Someone ordered that Daughter be brought upstairs and said, "[s]trip the bitch." Byrd took off Daughter's shirt and bra. He choked Daughter and dragged her upstairs to the hallway bathroom. There, Daughter's head was hit against the sink. Hines and Byrd were with Daughter in the hallway bathroom.

Byrd then took Daughter to Mother's bedroom and bent her over the bed. The other intruders were in the room. Some of them were looking through the things in the room. Daughter tried to grab the telephone but Byrd hit her. Byrd unbuckled Daughter's belt and pants and felt her bare breast with his hand.

During the incident, the intruders referred to each other as "Blood." Son reported to an investigating deputy that he heard the intruders ask, "[w]here's the money, Blood?"

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The intruders ran out of the house through the back sliding door when Mother returned home and honked her car horn.

Daughter told deputies the intruders were four to six Black males in their 20's, of average build, and wearing dark-colored hooded sweatshirts and dark-colored pants. She reported that each intruder carried a gun. Mother similarly reported seeing four to six Black males in their teens or early 20's, wearing dark-colored hooded sweatshirts.

Deputies were informed that the perpetrators fled the victims' house and ran toward Stockton Boulevard. Within 10 minutes after Daughter called 911 to report the crimes, Sergeant Craig Goncalves saw defendants--four Black males--walking together along northbound Stockton Boulevard. Defendants were less than a mile from the victims' house. Defendants continued walking intently, ignoring the patrol cars driving past them with lights and sirens activated. It appeared to Goncalves that defendants were trying not to be noticed.

Goncalves made a U-turn to contact the group. He and his partner Deputy Julius Wallace stopped Ellington, Johnson and Byrd at the intersection of Stockton Boulevard and Fruitridge Road, near a Rite Aid drug store. Hines crossed to the opposite side of Stockton Boulevard and walked away from Goncalves and Wallace but was subsequently detained by Sergeant Timothy Gorham.

Mother and Daughter were taken separately to the Rite Aid parking lot for show-ups. Mother was not present at Daughter's show-up, and Daughter did not speak with Mother before her show-up. Each positively identified defendants as the perpetrators.

A palm print obtained from the sliding glass door at the victims' house matched Johnson's palm print. Forensic analysis determined that the shoes worn by Byrd could have made a shoeprint found in the victims' backyard. Law enforcement officers also found a loaded .45 caliber semiautomatic handgun magazine in a neighbor's backyard.

Additional facts are referenced in the discussion as relevant to the contentions on appeal.

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Defendants were charged with (1) first degree residential burglary (Pen. Code, § 459),1 (2) attempted first degree robbery of Daughter (§§ 664, 211, 213, subd. (a)(1)(A)), (3) attempted first degree robbery of Son (§§ 664, 211, 213, subd. (a)(1)(A)), (4) assault with a firearm against Son (§ 245, subd. (a)(2)), (5) assault with intent to commit rape against Daughter (§§ 220, subd. (b), 460), and (6) sexual battery of Daughter (§ 243.4, subd. (a)). It was alleged in counts one through six that defendants or a principal personally used a firearm (§§ 1203.06, subd. (a)(1), 12022.5, subd. (a), 12022.53, subds. (b), (e)(1)), causing the offense to be a serious and violent felony (§§ 1192.7, subd. (c)(8), 667.5, subd. (c)(8)). It was also alleged that Ellington, Hines and Byrd committed the charged offenses for the benefit of, at the direction of and in association with a criminal street gang with the specific intent to promote, further and assist in criminal conduct by gang members (§ 186.22, subd. (b)(1)). No gang enhancement allegation was charged against Johnson. Hines was additionally charged in count seven with possession of a firearm by a felon (former § 12021, subd. (a)(1)).

The jury convicted Byrd, Hines and Johnson on counts one and two and found the enhancement allegations in those counts to be true. Byrd and Hines were also convicted on counts five and six and the jury found the enhancement allegations in those counts to be true. Additionally, Hines was convicted on count seven. The jury found Byrd, Hines and Johnson not guilty on the remaining counts. The trial court declared a mistrial as to Ellington because the jury could not reach a verdict on the charges against him.

Ellington was retried on counts one through six. The second jury convicted him on counts one through four and found the gang enhancement allegation and the allegation that a principal used a firearm to be true but found the allegation that Ellington personally

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used a firearm to be not true. The second jury deadlocked on counts five and six. The trial court declared a mistrial on those counts.




Ellington, Hines and Byrd contend the trial court erred in denying their motion, pursuant to section 1538.5, to suppress evidence arising from their arrest.2 In particular, defendants claim that handcuffing them and placing them in patrol cars resulted in a de facto arrest, and such arrest violates the Fourth Amendment to the federal Constitution because it is not supported by probable cause. If the officers' conduct did not result in a de facto arrest, Ellington and Hines maintain that no specific and articulable fact supports a reasonable suspicion that defendants committed a crime,...

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