People v. Jones, A113678 (Cal. App. 7/19/2007), A113678
| Decision Date | 19 July 2007 |
| Docket Number | A113678 |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. WILTON EUGENE JONES, Defendant and Appellant. |
| Court | California Court of Appeals Court of Appeals |
Appeal from the Solano County Super. Ct. No. VCR177686.
Defendant was convicted by a jury of attempted carjacking (Pen. Code, §§ 215, 664) and attempted unlawful taking of a vehicle (Pen. Code, § 664, Veh. Code, § 10851, subd. (a)).1 He argues on appeal that the evidence does not support the conviction for the attempted carjacking, prosecutorial misconduct was committed, and the trial court erred by limiting consideration of defense alibi evidence in an instruction to the jury. We conclude that substantial evidence supports the attempted carjacking conviction, no misconduct occurred, and the court's instructional error on consideration of the defense evidence was not prejudicial. We therefore affirm the judgment.
Defendant was charged with offenses based upon three separate incidents that occurred on three different evenings in February of 2005, at the same intersection in Vallejo. The primary disputed issue with respect to the charges was the identity of the perpetrator. Defendant was not convicted of two of the charges.2
The Carjacking of Angelique Freeman's Vehicle (Count Three)
Angelique Freeman drove her Dodge Neon to the Valero gas station on the corner of Tennessee Street and Sonoma Boulevard in Vallejo about 6:00 p.m. on February 18, 2005. Freeman left her car keys in the ignition and purse in the car as she briefly got out of her vehicle to speak to another woman. As she returned to the car she noticed a man she identified at trial as defendant enter the driver's side door. When Freeman attempted to stop defendant by grabbing onto the car door, he warned her to "back away" or he "was going to shoot" her. Freeman released the door, whereupon defendant "drove off" hastily and turned right onto Tennessee Street.
Within two minutes police arrived at the Valero gas station and spoke with Freeman. She was "hysterically crying," so the officer had difficulty obtaining information from her. Freeman gave an account of the encounter and a description of the suspect. The police conducted an "extensive area check" that evening "with no results."
Freeman's car was found about a week later by the police and returned to her. She subsequently viewed a photo lineup at the police station. Freeman identified defendant's photograph — number five in the lineup — as the man who she believed took her car. Her identification of the photograph was "confident" but not positive. At a live lineup more than a month later Freeman identified with a question mark a person other than defendant. Freeman testified that at the live lineup she was nervous, and defendant looked slightly different than he did on the date of the crime or in the photo lineup. Freeman's identification of defendant at trial was "very confident."
The Carjacking of Kimberly Dubois' Vehicle (Count One)
Kimberly Dubois stopped at the same Valero gas station at about 5:10 p.m. on February 26, 2005, in her 1992 Honda Accord. As she was pumping gas, defendant entered her car through the open driver's side door and started the engine. Dubois reached through the open window, grabbed defendant's shirt and yelled at him to "get out" of her car. The car lurched forward as Dubois continued to pull on defendant's shirt. Defendant told Dubois to "back off or he was going to kill" her. Finally, defendant "popped the clutch," which caused Dubois to loose her grip and fall to the ground near the gas station driveway. Dubois scraped her knees and lost the stone out of her diamond wedding ring in the fall.3
Dubois called the police, and an officer arrived within "seconds." She described the suspect to the officer as "approximately six feet tall, 200 pounds, Black adult male," clean cut, with no visible scars or tattoos, wearing a red shirt or sweater. The next night, Dubois selected a photograph of defendant from a lineup as the person who took her car. Her identification of defendant's photograph was positive, as was her identification of him at trial.
On April 20, 2005, Dubois attended a live lineup, where she was "uncomfortable" and had difficulty getting "a real good look" at the subjects. She selected someone other than defendant at the live lineup.
The Attempted Carjacking and Unlawful Taking of Vehicle from Korinne Munson-Korodi (Counts Two and Four)
On February 27, 2005, at just after 5:30 p.m., Korinne Munson-Korodi stopped for gas for her BMW 325i at the 76 Union gas station at the intersection of Tennessee Street and Sonoma Boulevard in Vallejo — across from the Valero station. She held her keys in her hand as she stood on the right side of her car pumping gas. Munson-Korodi then observed defendant on the left side of her car across from her looking into the driver's side front window. The car was unlocked. Munson-Korodi screamed and began to walk quickly around the back of her car as defendant opened the door and sat in the driver's seat. From "within two feet" of defendant's face Munson-Korodi yelled at him, "Get out of my car," and "Help." When she pulled defendant by the shoulders or jacket, he got out of the car. As defendant walked away from the gas station he said,
Munson-Korodi ran inside the gas station to ask the attendant to call the police, then immediately went back outside to watch the direction defendant was walking. She thought he walked westbound on Tennessee Street. She observed that he was wearing a camouflage jacket over a red sweatshirt with a blue insignia on the front.
Munson-Korodi then called the police on her cell phone, and an officer arrived within five minutes. Although Munson-Korodi appeared to be "visibly upset" and "shaken," she gave a physical description of the suspect to the officer: a "Black male adult," in "his late 30's," light-skinned, very tall, "six-one" to "six-six," a thin to medium build, clean-shaven, clean appearance, with short curly hair and light brown eyes, "wearing a dark-colored" or "army-type" jacket with a "red sweatshirt underneath it and drab green pants."
Within minutes, defendant was detained walking alone southbound on old Wilson Street just off Tennessee, about six to seven blocks west from the 76 Union gas station. He was wearing a "multi-colored plaid jacket" over a red sweatshirt, and blue jeans over drab green pants. Defendant "put his head down, and didn't say anything" when the officer asked him "if he was at Sonoma and Tennessee Street." The officer then asked defendant "where he was coming from." After hesitating momentarily defendant responded, "from the liquor store on Wilson," which was about a block away.
Munson-Korodi was transported to the detention scene to view a "possible suspect." Defendant was standing between two officers with the lights of a patrol vehicle shining on him. The jacket or sweatshirt defendant was wearing seemed "different" than the one Munson-Korodi recalled and previously described for the officer. She advised the officer that the "situation was difficult," and asked if the sweatshirt had a red hood. Once the officers "pulled the red hood out," that was the "last thing" she needed to "feel confident." She then said, "That's him." Munson-Korodi testified that she made a "very" confident identification of defendant at the detention scene as the man who entered her car.
Munson-Korodi also identified defendant at a live lineup on April 20, 2005. Again, she was "very" certain of the identification. Her identification of defendant at trial was also positive.
The focus of the defense case was upon presentation of evidence that defendant was at the liquor store on Wilson Street when the attempted carjacking of Munson-Korodi occurred, as he told the detaining officer. Video surveillance tapes of the liquor store and the 76 Union gas station, for the date of February 27, 2005, were collected by a police officer. The owner of the liquor store described the "system" used for store surveillance. He testified that 31 numbered videotapes are kept in the store, one for each day of the month. Every morning, one of the liquor store owners or an employee routinely puts the tape with the number that corresponds to that particular date in the video machine to record the activities in the store for the entire day. The number of the tape is changed daily and checked "most of the time," but not always. The liquor store owner and an employee testified that they had no personal knowledge of the accuracy of the time and date of the tape used on February 27, 2005. The video itself did not have a digital date or time on it.
The videotapes of the gas station and the liquor store for the date February 27, 2005, were played for the jury, and still photographs taken from tapes were admitted in evidence. The videotape of the liquor store depicts a man apparently similar in appearance to defendant making a purchase at 5:44 p.m. The videotape of the gas station shows Munson-Korodi filling the gas tank of her BMW, followed by the man she identified as defendant opening the door of the car and getting in the driver's seat.
The defense also adduced evidence that the investigating officers in the case did not take any fingerprint or DNA evidence from the vehicles that matched defendant. An investigating officer testified that defendant lived at 206 Ohio Street in Vallejo, as he told the officer when he was detained on the evening of February 27, 2005. The address of defendant's residence is only a few blocks from the location of the detention. No vehicles or other property that belonged to any of the victims was found at defendant's residence or in his possession when he was detained. The defense referred to the lineup and booking photographs of defendant, and argued that his appearance in those...
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