People v. Jackson
| Decision Date | 17 January 1996 |
| Docket Number | No. B090217,B090217 |
| Citation | 41 Cal.App.4th 1232,49 Cal.Rptr.2d 114 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Previously published at 41 Cal.App.4th 1232, 46 Cal.App.4th 232 41 Cal.App.4th 1232, 46 Cal.App.4th 232, 96 Cal. Daily Op. Serv. 375, 96 Daily Journal D.A.R. 592 The PEOPLE, Plaintiff and Respondent, v. Arthur Duane JACKSON, et al., Defendants and Appellants. |
Corinne S. Shulman, Hydesville, under appointment by the Court of Appeal, for Defendant and Appellant Arthur Duane Jackson.
John F. Schuck, Palo Alto, under appointment by the Court of Appeal, for Defendant and Appellant John Holani.
Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Carol Wendelin Pollack, Senior Assistant Attorney General, John R. Gorey, Supervising Deputy Attorney General, Sanjay T. Kumar and Carl N. Henry, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted appellants Arthur Duane Jackson and John Holani of willful, deliberate, and premeditated attempted murder , carjacking (§ 215; count II) and found true allegations each appellant had personally used a firearm in the commission of the offenses (§ 12022.5), that appellant Holani had inflicted great bodily injury in the commission of the offenses (§ 12022.7, subd. (a)), and that appellant Jackson had a prior residential burglary conviction (§§ 667, subds. (b)-(i), 667, subd. (a)).
Appellants' contentions involve double jeopardy, instructional error, improper double punishment (§ 654), ineffective assistance of counsel, evidentiary errors, Marsden error (People v. Marsden (1970) 2 Cal.3d 118, 84 Cal.Rptr. 156, 465 P.2d 44), "three strike" errors (§ 667, subds. (b)-(i)), insufficient evidence regarding a prior felony allegation, and sentencing error.
We find sentencing error concerning appellant Jackson, modify his judgment accordingly, but otherwise affirm the judgments.
There being no insufficiency of evidence claim, the facts may be stated simply. Our perspective favors the judgment. (People v. Barnes (1986) 42 Cal.3d 284, 303-304, 228 Cal.Rptr. 228, 721 P.2d 110.)
On April 28, 1994, at 1:32 a.m. a request for assistance was made from freeway call-box 605-134 on the 605 freeway at Whittier Boulevard. A California Highway Patrol (CHP) dispatcher contacted Hadley's tow service, which sent a tow truck to the location. At 2:08 a.m. Hadley's informed the CHP that the requesting party had refused service because he only wanted a spare tire. At 2:10 a.m. the party made a second request for assistance and the CHP contacted Freddie Mac tow service. They sent one of their drivers, Hugo Leiva, to the scene.
Mr. Leiva arrived about 3 a.m. and saw a brown, two-door, 1975 Chevrolet Monte Carlo parked on the shoulder of the northbound 605 freeway. It had a flat rear tire and inside, two people were asleep. Mr. Leiva knocked on the passenger's window awakening the passenger, appellant Jackson, and the driver, appellant Holani.
Appellant Holani told Mr. Leiva they had a flat tire but no spare and wanted to be towed to Long Beach. Mr. Leiva explained the charges and appellants agreed.
Appellants exited and Mr. Leiva switched a front tire with the flat rear tire and hooked up the Chevrolet. The three men then entered the tow truck, appellant Jackson in the middle.
While on the 605 freeway appellant Jackson told Mr. Leiva he was not going toward Long Beach. Mr. Leiva explained he had to go north to Beverly in order to get on the 605 South.
Appellant Holani asked Mr. Leiva if the truck had a radio and Mr. Leiva said it did but he didn't play it. Later, appellant Holani Soon after Mr. Leiva got on the 405 South, appellant Jackson asked him to pull over so appellant Holani could urinate. Mr. Leiva did, parking near call-box 405-4. Appellant Holani got out, took a few steps, reached toward his waist, pulled out a gun, pointed it at Mr. Leiva and said "Give me all your money."
asked what the time was and Mr. Leiva, not having a watch, called his company and said it was 3:30 a.m.
Appellant Jackson, still seated next to Mr. Leiva, pulled out a gun, pushed Mr. Leiva's head down, and asked for his wallet. Appellant Jackson removed Mr. Leiva's wallet and patted him down, as though searching for a weapon.
Appellant Holani reached across appellant Jackson, grabbed Mr. Leiva by the neck, pulled him over appellant Jackson out of the truck, and ordered him to lay on the ground. When Mr. Leiva was on his back, face up, appellant Holani said "face down." As Mr. Leiva turned over appellant Holani shot him in the back. Mr. Leiva got up and started running. He heard two more shots but was not hit by them. Bleeding and weak, Mr. Leiva fell. He saw his tow truck, with the Chevrolet Monte Carlo still attached, drive off.
Mr. Leiva yelled for help but no one stopped. On his knees, he crawled to the call-box and asked for assistance. CHP officers and then paramedics arrived and Mr. Leiva was taken to a hospital.
Because Mr. Leiva's tow truck had a teletrac device, law enforcement officers were able to track it.
At about 4 a.m. Long Beach Police Officer Chowen was led to an enclosed, gated apartment complex at 34th Street and Santa Fe where he saw the tow truck. It was in an interior parking area in the middle of the complex and had its lights on. A dark male was near it. Officer Chowen radioed he had located the tow truck and had observed a suspect. He then drove to the only entrance but could not open the gate. Other officers arrived, entry was effected, and a search was conducted. Although no suspects were located, Mr. Leiva's flashlight was found on a stairway near the tow truck, a .22 caliber loaded pistol was recovered by a fence near the tow truck, and the teletrac device was removed from a dumpster. The Chevrolet Monte Carlo was parked in stall 3325 near the tow truck. Inside the Chevrolet Monte Carlo police found documents with appellant Jackson's name, registration papers in the name of appellant Jackson's girlfriend, Andrea Branch, and an identification card for "Darren Webster Jackson," a name appellant Jackson used.
A week later, on May 5, 1994, surveilling officers saw appellant Holani leave an apartment in the Santa Fe-34th Street complex and walk to a nearby market where they arrested him.
Appellant Jackson was arrested June 24, 1994, when he left his room at the Atlantic Motel in Long Beach. He was with a cousin of appellant Holani's. Police searched appellant Jackson's room and found an air gun and, under the mattress, a loaded 380 Davis semi-automatic pistol. Appellant Jackson told the officers his name was Dion Jones.
Appellant Holani's fingerprints were found inside the driver's door and outside the driver's door window of the Chevrolet Monte Carlo.
The bullet removed from Mr. Leiva was fired from the .22 caliber pistol found by the fence at the Santa Fe apartment complex.
Appellant Holani lived with a cousin at the Santa Fe complex in apartment 3325.
Appellant Jackson frequented the Santa Fe complex, was friends with appellant Holani, and often played dice there with cousins of appellant Holani.
Both appellants testified.
Appellant Holani testified that he lived in apartment 3325 with a cousin and on April 27, 1994, he was babysitting there with his girlfriend Greta. At 11 p.m., while appellant Jackson was playing dice in the parking area, he took appellant Jackson's Chevrolet Monte Carlo, got some food for Greta, returned the car, and went back to his apartment where he remained all night with Greta.
Greta was not called as a witness.
Appellant Jackson testified he arrived at the Santa Fe apartment complex about 1 a.m. on April 28, 1994, played dice until 2 a.m., and left with his brother in the Chevrolet Monte Carlo. They drove about 20 blocks to Monica Stocket's house where they drank beer and talked to her, her mother Evelyn, and Teresa Cummings. About 4 a.m. he fell asleep on the couch. When he awoke later that morning he discovered the Chevrolet Monte Carlo was missing, called Andrea Branch, and told her to inform the police.
Monica Stocket, Evelyn Stocket, Teresa Cummings, and Andrea Branch were not called as witnesses.
The first trial of appellants began October 3, 1994, with Superior Court Judge Richard R. Romero presiding. On October 5, 1994,--a jury having been selected and sworn and opening statements having been made by the prosecutor and counsel for appellant Holani--counsel for appellant Jackson moved for a mistrial. The motion was based upon the prosecutor's failure to provide defense counsel a copy of appellant Jackson's arrest report.
After counsel for appellant Jackson had explained to the trial court the basis for his motion, the trial court inquired of counsel for appellant Holani what his position was concerning the mistrial motion. The following colloquy occurred:
"Mr. Hawkins: Yes, I would be submitting, your Honor."
Shortly thereafter the trial court granted the motion and declared a mistrial.
On December 5, 1994, the instant trial began again. Neither appellant claimed he had been "once in jeopardy." (§ 1016, subd. (5).)
Appellant Holani now contends 1 he did not consent to the October 5, 1994, mistrial and was twice put in jeopardy. (U.S. Const. Amend. V; Cal. Const., art. I, § 15.) We disagree.
Our Supreme Court has...
To continue reading
Request your trial
-
People v. Jackson
...v. Arthur Duane JACKSON et al., Appellants. No. S051863. Supreme Court of California. Oct. 23, 1996. Prior report: Cal.App., 49 Cal.Rptr.2d 114. Pursuant to rule 29.4(c), California Rules of Court, the above-entitled review is DISMISSED and cause is remanded to the Court of Appeal, Second A......
-
People v. Jackson
...v. Arthur Duane JACKSON et al., Appellants. No. S051863. Supreme Court of California. March 28, 1996. Prior report: Cal.App., 49 Cal.Rptr.2d 114. Appellants' petitions for review Submission of additional briefing, otherwise required by rule 29.3, California Rules of Court, is deferred pendi......