People v. Jones

• Decision Date: 01 April 2003
• Docket Number: No. D039146.,D039146.
• Citation: 108 Cal.App.4th 455,133 Cal.Rptr.2d 358
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Marshall JONES, Defendant and Appellant.

133 Cal.Rptr.2d 358

108 Cal.App.4th 455

The PEOPLE, Plaintiff and Respondent, v. Marshall JONES, Defendant and Appellant.

No. D039146.

Court of Appeal, Fourth District, Division 1.

April 1, 2003.

Certified for Partial Publication.^*

Review Denied July 23, 2003.^**

Bill Lockyear, Attorney General; Robert R. Anderson, Chief Assistant Attorney General; Gary W. Schons, Senior Assistant Attorney General; Holley A. Hoffman and Marvin E. Mizell, Deputy Attorneys General, for Plaintiff and Respondent.

George L. Schraer, under appointment by the Court of Appeal, San Diego, for Defendant-Appellant.

HALLER, J.

Marshall Jones killed his four-month old son, Wolfgang, and then buried him in an empty dirt lot. At the time, Jones did not have legal or physical custody of the child. The jury found Jones guilty of first degree murder, kidnapping, and assault on a child under eight years of age (Pen.Code §§ 187, subd. (a), 207, subd. (a), 273ab), and found true a special circumstance allegation that the murder was committed while Jones was committing or attempting to commit kidnapping (Pen.Code, § 190.2, subd. (a)(17)).¹ The court sentenced Jones to life without the possibility of parole on the murder during a kidnapping special circumstance, and stayed the sentences on the kidnapping and assault counts.

On appeal, Jones argues the kidnapping conviction is factually and legally unsupported and therefore the kidnapping and first degree murder convictions and special circumstance finding must be reversed. For the reasons explained below, we reject Jones's contentions and affirm the judgment after modifying the abstract of judgment to correct a clerical error.

FACTUAL SUMMARY

In 1998, 17-year old Benjamie Winfree (Benjamie) began dating 29-year old Jones. One year later, in November 1999, Benjamie became pregnant with Jones's child, and then told Jones she no longer wanted to date him. Jones became obsessed with getting back together with Benjamie, and made numerous attempts to contact her.

In May 2000, when Benjamie was approximately six months pregnant, her father (Mr. Winfree), who is an attorney, successfully represented Benjamie at a court hearing to obtain a restraining order against Jones. Jones complied with the restraining order, but continued to attempt to contact Benjamie through her mother (Mrs. Winfree).

In August 2000, Benjamie gave birth to Wolfgang. Three weeks later, a family court mediator met with Benjamie and Jones to evaluate the parents for a custody determination. During the mediation sessions, the mediator found that Jones was focused only on Benjamie, and not on the child, and would "mad-dog" stare at Benjamie. Jones further appeared to have a substantial alcohol abuse problem. The mediator thus recommended that Benjamie be granted sole legal and physical custody with supervised visitation for Jones. Jones thereafter expressed substantial anger towards Mr. Winfree, blaming Mr. Winfree for Benjamie's decision not to reconcile with Jones. At one point, Jones told a co-worker that if he could not have Wolfgang, then nobody could and Jones would send Wolfgang back to God.

Three months later, in December 2000, Benjamie was considering getting back together with Jones, and, at one point, agreed to marry him. Mr. Winfree disapproved of the marriage, and ultimately convinced Benjamie not to marry Jones. On the evening of December 26, Benjamie told Jones that she decided she could not marry him, and that her father had talked her out of it. Jones became angry, and repeatedly said "I am this close to snapping." Jones also said "I am going to do something that makes front page news." When Jones drove Benjamie back to her parents' house, she agreed to come to his apartment the next day.

The next day, Jones picked up Benjamie, Wolfgang and Benjamie's younger sister (Sarah), and drove them to his apartment. Jones had a stroller in his car, and appeared to be upset. After they arrived at Jones's apartment, Jones and Sarah drank numerous beers. Jones again stated he wanted to marry Benjamie, but Benjamie reiterated that she could not marry him.

When they went outside the apartment to leave at about 5:45 p.m., Benjamie was holding Wolfgang. Jones abruptly took Wolfgang from Benjamie's arms, and Wolfgang began crying. Jones put Wolfgang in the car, but would not let Benjamie or Sarah into the car. Jones then "jerked" his car into reverse, and Benjamie yelled at him to let her into the car. Jones looked at Benjamie with "a sick smile on his face," that looked "like one of anger" and then drove down the street. Benjamie was screaming at Jones to stop, but Jones continued to drive away, holding Wolfgang on his lap. After determining that Jones had not gone to his mother's house, Benjamie called 911.

At 8:40 that night, Jones entered the Quik Korner market in Santee. He bought beer and chips, and put these items into the bottom compartment of a baby stroller. Later that night at about 11:45, a police officer was assisting a motorist near the Quik Korner market and heard a loud yell coming from a nearby undeveloped area with very thick brush. The officer saw a stroller on the side of the brush next to an open field. Jones's shovel was sticking out from the stroller's top section.

Jones then walked from a foot path near the middle of the brush. Jones appeared nervous and smelled like an alcoholic beverage. Jones gave inconsistent explanations for what he was doing there. After searching and failing to find evidence of illegal conduct, the officers allowed Jones to leave the area.

Several hours later, at about 3:00 a.m., Benjamie called Jones's apartment and left a message. Two or three minutes later, Jones called back and said: "How does it feel to have the shoe on the other foot ... [y]our dad gets what he deserves. ... [y]ou are never going to see your son again. He has a new mommy now. I will let you hear his voice over time but you will never see him again." When Benjamie told Jones he would be in trouble, Jones responded "[o]h, it is worth it."

Two days later, police officers returned to the field where the officers had seen Jones and conducted a more extensive search. They eventually found Wolfgang buried in a shallow grave. Several items associated with Jones were found near the grave, including a paper towel with Jones's blood on it and the food and beverage items he had purchased the previous night.

Dr. Harry Bonnell performed an autopsy on Wolfgang's body. There was no evidence of disease, bruising, scraping or cutting. There were pinpoint hemorrhages on the surface of the lungs which is consistent with obstruction of the mouth and nose. Dr. Bonnell opined the cause of death was asphyxia due to upper airway obstruction, and the obstruction would have caused death after 30 to 45 seconds. The autopsy revealed that Wolfgang was dead at the time he was buried. There were no marks on Wolfgang's face or throat. There was no evidence of external trauma or of shaken baby syndrome.

At trial, the prosecution's theory was that Jones intentionally killed Wolfgang by suffocating him as revenge against Mr. Winfree and Benjamie. The jury was instructed on two theories of first degree murder: (1) premeditation and deliberation; and (2) felony murder based on murder committed during a kidnapping. In defense, Jones did not present any affirmative evidence, and his counsel never disputed that Jones was the person who killed Wolfgang. Instead, Jones's counsel argued the jury should find Jones was not guilty of the charged crimes because it was not "impossible" to believe that Jones, who had been drinking alcohol, "passed out and somehow smothered this baby" and that Jones may have been so "frightened and embarrassed" by the way the baby accidentally died that he decided to bury the baby in a dirt field.

The jury ultimately found Jones guilty of first degree murder, kidnapping in violation of section 207(a), assault on a child with force likely to produce great bodily injury, and found true the special circumstance that Jones committed murder during the course of a kidnapping. The jury verdict did not specify whether the first degree murder conviction was based on a felony-murder theory or a premeditated murder theory.

DISCUSSION

I. Summary of Applicable Kidnapping Law

Each of Jones's appellate arguments pertain to the kidnapping conviction. We thus begin with a brief overview of the law of kidnapping, particularly as it relates to an infant or child victim.

Generally, to prove the crime of kidnapping, the prosecution must prove three elements: (1) a person was unlawfully moved by the use of physical force or fear; (2) the movement was without the person's consent; and (3) the movement of the person was for a substantial distance. (§ 207, subd. (a).)² California courts have recognized, however, that the first two elements raise an analytical problem when the victim is an infant or a very young child because this victim would be incapable of giving consent and can be unlawfully moved without resort to physical force or fear. (See In re Michele D. (2002) 29 Cal.4th 600, 607, 128 Cal.Rptr.2d 92, 59 P.3d 164; People v. Hill (2000) 23 Cal.4th 853, 855, 98 Cal.Rptr.2d 254, 3 P.3d 898; People v. Oliver (1961) 55 Cal.2d 761, 764-765, 12 Cal.Rptr. 865, 361 P.2d 593.) But these courts have also recognized that to eliminate the lack-of-consent and force elements would potentially permit a kidnapping conviction of an adult who forcibly transports a child for a good or innocuous purpose, which would be inconsistent with legislative intent in enacting the kidnapping statute. (Ibid.)

To resolve this conceptual problem, the California Supreme Court more than 40 years ago created an additional "intent" element applicable to the kidnapping of infants or very young children to substitute for the lack-of-consent element. (See People v. Oliver, supra, 55 Cal.2d at pp. 766-768, 12 Cal.Rptr. 865, 361 P.2d 593.) Although the defendant's...