People v. Jones

• Decision Date: 05 October 1999
• Docket Number: No. B122692.,B122692.
• Citation: 89 Cal.Rptr.2d 485,75 Cal.App.4th 616
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Charles E. JONES, Defendant and Appellant.

89 Cal.Rptr.2d 485

75 Cal.App.4th 616

The PEOPLE, Plaintiff and Respondent, v. Charles E. JONES, Defendant and Appellant.

No. B122692.

Court of Appeal, Second District, Division 4.

October 5, 1999.

Rehearing Denied October 20, 1999.

Review Denied January 13, 2000.

Carlton E. Lacy, under appointment by the Court of Appeal, Walnut Creek, for Defendant and Appellant.

Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney General, Carol Wendelin Pollack, Senior Assistant Attorney General, Mary Sanchez, Supervising Deputy Attorney General, and Joseph P. Lee, Deputy Attorney General, for Plaintiff and Respondent.

CHARLES S. VOGEL, P.J.

INTRODUCTION

Defendant and appellant Charles E. Jones appeals after being convicted of multiple offenses. Appellant contends, and the People concede, that the evidence was insufficient to support his conviction for kidnapping during the commission of carjacking. The People contend that the conviction should be reduced to one for attempted carjacking; however, appellant contends that instructional error precludes our doing so. We find no merit in appellant's contention and accordingly we reverse the conviction for kidnapping during the commission of carjacking and modify the conviction to attempted carjacking.

Appellant further contends there was insufficient evidence to support a conviction of kidnapping for robbery, as the asportation requirement for that crime was not met. Finding no merit to this contention, we affirm the judgment of conviction for kidnapping for the purpose of robbery.

Further, we find merit in appellant's contention that there was insufficient evidence to support the trial court's finding that appellant had been convicted of a prior serious felony strike, and therefore remand the matter to the trial court for retrial of the issue.

Finally, we agree with the Attorney General's contentions that (1) the abstract of judgment must be corrected to reflect a restitution fine imposed by the trial court (Pen.Code, § 1202.4, subd. (b));¹ and (2) an additional parole revocation fine was required to be imposed (§ 1202.45).

PROCEDURAL BACKGROUND

Appellant was charged by the District Attorney of Los Angeles County in an amended information with (count I) kidnapping for robbery (§ 209, subd. (b)), a serious felony within the meaning of section 1192.7, subdivision (c); (count II) kidnapping during the commission of carjacking (§ 209.5), a felony; and (count III) second degree robbery (§ 211), a serious felony within the meaning of section 1192.7, subdivision (c). It was further alleged as to each count that appellant previously had been convicted of federal bank robbery in Washington, in violation of Title 18 United States Code section 2113(a), within the meaning of the Three Strikes law. Appellant pleaded not guilty and denied the special allegations.

Appellant brought a motion to act in propria persona, which was granted. A jury found appellant guilty as to each count. The trial had been bifurcated, and the trial court found the prior conviction allegations to be true.

Appellant was sentenced as to count I to life with the possibility of parole, with the minimum parole eligibility date of 19 years (7 years doubled to 14 years pursuant to the Three Strikes law, plus a 5-year enhancement pursuant to section 667, subdivision (a)(1)). The same sentence was imposed as to count II but was stayed pursuant to section 654. On count III, the trial court sentenced appellant to one-third the middle term of three years, or one year, which sentence was doubled to two years pursuant to the Three Strikes law; however, the trial court stayed the sentence pursuant to section 654.

Appellant was awarded 218 days of presentence custody credit, consisting of 190 actual days and 28 days of conduct credit. The trial court imposed a $1,000 restitution fine pursuant to section 1202.4.

This appeal followed.

FACTUAL BACKGROUND

At 11:50 a.m. on November 7, 1997, Miranda Watkins drove her Mustang to Charter Oak High School to meet her boyfriend for lunch. She parked facing a football field and walked across the parking lot to her boyfriend's truck. As she was parking, she noticed a man, whom she later identified as appellant, wearing a long-sleeved shirt, long pants, and a hat. She waited at her boyfriend's truck for about 10 minutes, then walked back to her car, and set the alarm.

She walked back to the truck and turned around to see appellant standing right behind her. Appellant grabbed her, she screamed, and he put his gloved hand over her mouth and cursed at her, telling her to shut up. She was holding in one hand her keys and her wallet with her pager clipped onto it. Appellant knocked her to the ground, still cursing at her and holding his hand over her mouth. She struggled somewhat but could not scream because his hand was over her mouth. He told her to get up, but she said she could not because he was putting so much pressure on her mouth. He picked her up and took her wallet, keys, and pager from her. He walked her directly to her car without asking which one was hers. She estimated the distance between her boyfriend's truck and her car was about 40 feet. She said, "`Please don't hurt me, just take everything." Appellant replied, "I plan on it.'"

When they reached the car, appellant put Watkins's wallet on top of the car and tried to unlock the door. He could not get the door open, and told her to do it. She told him the alarm was on, but he did not reply. She unlocked the door, he opened it, and the alarm sounded. He told her to turn it off, and she attempted to do so by pushing an alarm button on her key chain, but she could not turn it off because the button tended to malfunction. He had put his hand over her eyes and she told him she could not see. He moved his hands back over her mouth, then pushed her inside the car. Watkins knew that if she tried to start the car, the battery would die and the alarm would stop. She turned the key in the ignition and heard the battery click as if dead and the alarm stopped. The alarm had been sounding for just less than one minute. Appellant told her to move over to the passenger side and began getting into the driver's side of the car. As he did, she moved to the passenger's side, opened the door, and got out. He grabbed for her but did not touch her.

Watkins screamed and ran to the door of the school's cafeteria building. A cafeteria employee came out and asked what was wrong. Watkins said, "A man attacked me," pointing toward the parking lot where appellant was walking away. Watkins testified that although the lot was full of parked cars, she had not seen any other people in the parking lot.

Linda Seal, a food service supervisor at the high school, testified she ran outside when she heard screaming in the parking lot. Watkins ran toward her screaming for help, saying, "`That man is trying to get me.'" Watkins pointed toward a man walking in the parking lot. Seal saw a "very large Black man" wearing slacks, a hat, and a long-sleeved shirt; he looked directly at Seal from a distance of about 40 feet. Seal and Watkins ran into Seal's office.

Larry Pisani, a school counselor, had just pulled into the parking lot. Seal told him a girl had been attacked in the parking lot and the attacker was walking toward the park. When Pisani entered the parking lot, he had seen Watkins run past his car, screaming, toward Seal. Pisani began following on foot the man Seal had pointed out. He followed appellant from a distance of 15 to 20 feet, asking Johnny Brandt, a student who had pulled into the parking lot, to come with him.

Appellant began to run across Covina Boulevard, then stopped and turned toward Pisani and Brandt. Pisani testified appellant said, "`Do you guys want to play?'" Brandt heard him say, "`Do you want drama? Is this what you want?'" Appellant reached behind his back and Pisani cowered, thinking appellant was reaching for a weapon. Appellant came toward Pisani and threw a punch at him with a gloved fist but did not hit him. Appellant then began to run toward Brandt. When two other people carrying walkie-talkies approached, appellant turned and began walking toward the park again.

Ronald Letourneau, an assistant principal, was told by a woman named Janet Caraway that a student had been assaulted in the parking lot. Letourneau ran to the cafeteria where he was told by Seal what had happened. He went outside and a school proctor, Lupe Lorenzo, pointed to the northeast area of the parking lot. Letourneau saw Pisani in the parking lot and appellant in the middle of Covina Boulevard. Letourneau ran toward appellant and told him to stop but he instead walked toward the park. Letourneau called Covina Police Officer Dan Jacobs on his walkietalkie.

Jacobs, the Charter Oak High School resource officer, received a call over his school radio that a female had been attacked in the parking lot. He walked toward the parking lot and saw Letourneau waving his hands over his head. Jacobs heard Letourneau speaking over the walkie-talkie, indicating that appellant, whom Jacobs could also see, was the one who attacked the girl. Jacobs got into his patrol car and drove toward the park, pulling up near appellant. He turned on his overhead lights and sounded his air horn, but appellant continued walking away. Jacobs got out of his car, drew his gun, and ordered appellant to stop two or three times before appellant did so. Other police officers began arriving and appellant was handcuffed. Letourneau had seen appellant throw an object away from him, and the object was later discovered to be a wallet containing identification in Watkins's name.

Jacobs went back to the school and spoke to Watkins. Jacobs then drove Watkins to the park in his police car to see if she could make a positive identification of appellant. On the way there, Jacobs told Watkins "that just because there's police officers around an individual, that maybe the...