People v. Jones CA2/6 ( 2021 )

Filed 12/15/21 P. v. Jones CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B306128
(Super. Ct. No. NA036778)
Plaintiff and Respondent, (Los Angeles County)
v.
CHANGA JONES,
Defendant and Appellant.
Changa Jones appeals the denial of his petition for
resentencing under Penal Code section 1170.126, the Three
Strikes Reform Act.1 We affirm.
FACTS
Danny Mosley, a Montebello automobile detailer, hired
Jones. It was a bad employment decision. On the same morning
he hired Jones, Jones left the business with a car without
permission.
All statutory references are to the Penal Code unless
1
otherwise stated.
Mosley found Jones driving the car in Long Beach. He told
Jones nothing would happen if he returned the car. Jones replied
that he was going home and drove away. Mosley called the police
who took up the chase.
In an attempt to elude the police, Jones drove at speeds in
excess of 70 miles per hour. He hit a police van, but drove on.
Later he failed to negotiate a left turn, jumped the curb, and hit a
building. He proceeded down a crowded sidewalk at speeds
nearing 50 miles per hour. He nearly struck a number of
pedestrians before killing Ricard Nolbert.
The chase ended when Jones hit a parked van, setting off
the car’s airbags. Jones abandoned the car and fled on foot before
he was arrested.
Conviction and Sentence
A jury found Jones guilty of evading the police causing
death (Veh. Code, § 2800.3), a serious felony; driving or taking a
vehicle without consent (id., § 10851, subd. (a)); and hit and run
causing death (id., § 20001, subd. (a)). The trial court found that
Jones had suffered two prior strikes (residential burglary) within
the meaning of the “Three Strikes” law (§§ 667, subd. (e),
1170.12, subd. (c)), and that he had suffered a prior prison term
(§ 667.5, subd. (b)).
The trial court sentenced Jones to 25 years to life for
evading the police causing death, a consecutive 25 years to life for
taking or driving a vehicle without consent, plus one year for the
prior prison term for a total of 51 years to life. The court stayed
the hit-and-run count under section 654.
Section 1170.126 Petition
Jones filed a petition for resentencing pursuant to section
1170.126 on the taking or driving without consent count. The
2.
trial court denied the petition on the ground that Jones was
armed with a deadly weapon, the car, during the commission of
the offense.
DISCUSSION
I
Sufficiency of the Evidence
Jones contends there is insufficient evidence to support the
trial court’s finding that he was armed with a deadly weapon
during the commission of the offense.
In 2012, the electorate enacted section 1170.126 as part of
Proposition 36, the Three Strikes Reform Act. The purpose of the
act is to exempt certain third strike nonviolent and nonserious
offenses from the imposition of a life sentence under the three
strikes law. (See People v Brimmer (2014) 230 Cal.App.4th 782,
791.) Instead, the nonviolent or nonserious offense will be
sentenced as a second strike. (Ibid.) The act allows a prisoner
who has already been sentenced to a life sentence for a
nonviolent or nonserious offense as a third strike to petition to be
resentenced as a second strike. (Id. at pp. 791-792.)
A defendant is not eligible for relief under section 1170.126
if he is armed with a deadly weapon “[d]uring the commission of
the current offense.” (§§ 1170.12, subd. (c)(2)(C)(iii), 667, subd.
(e)(2)(C)(iii), 1170.126, subd. (e)(2).) “During the commission of
the offense” requires a temporal nexus between the arming and
the underlying felony. (People v. Hicks (2014) 231 Cal.App.4th
275, 284.) It does not require that the deadly weapon be used to
facilitate the felony. (Id. at pp. 283-284.)
The exclusion from relief under section 1170.126 applies to
defendants who are armed with weapons that are not deadly per
se, so long as the objects are “used in a manner capable of
3.
producing and likely to produce great bodily injury.” (People v.
Perez (2018) 4 Cal.5th 1055, 1068.) A defendant’s use of a vehicle
in a manner likely to produce great bodily injury during the
commission of the offense is sufficient to render the defendant
ineligible for relief under section 1170.126. (Id. at p. 1065.)
The prosecution has the burden of proof to prove beyond a
reasonable doubt that the defendant is ineligible for relief under
section 1170.126. (People v. Frierson (2017) 4 Cal.5th 225, 235.)
We review the trial court’s determination for substantial
evidence. (People v. Guilford (2014) 228 Cal.App.4th 651, 661.)
Here Jones was convicted of driving or taking a vehicle
without the consent of the owner. (Veh. Code, § 10851.) He was
armed with a vehicle at the time he was driving and was driving
the vehicle in a manner capable of and likely to produce great
bodily injury. It is incontrovertible that he was armed with a
deadly weapon during the commission of the crime of driving a
vehicle without the owner’s consent.
Jones argues that the taking of the vehicle and driving to
avoid the police were two separate acts. (Citing People v. Strong
(1994) 30 Cal.App.4th 366; People v. Garza (2005) 35 Cal.4th 866,
880 [a defendant who steals a vehicle and continues to drive it
after the theft is complete commits separate and distinct
violations of section 10851].) But whether Jones intended to steal
the car or just drive it, he violated section 10851. (People v.
Calistro (2017) 12 Cal.App.5th 387, 395 [section 10851 can be
violated in two ways by theft or by driving].) No matter how
Jones tries to divide his activities, he cannot escape that he drove
a car without the owner’s consent while armed with a deadly
weapon.
4.
The evidence shows Jones is not entitled to relief under
section 1170.126.
II
Section 667.5
Jones contends the one-year enhancement for a prior prison
term under section 667.5 must be stricken. He claims he is
entitled to the benefit of a change in the law.
Effective January 1, 2020, section 667.5, subdivision (b)
was amended to apply only to a defendant who served a prior
prison term for a sexually violent offense. (Stats. 2019, ch. 590,
§ 1.) Jones’s prior prison term was for burglary, not a violent
sexual offense.
The benefit of a change in legislation applies retroactively
only to judgments that are not final on the date the change
becomes effective. (People v. Brown (2012) 54 Cal.4th 314, 323.)
Jones’s judgment became final in June 2002. Jones argues
his judgment is not final because this case is currently pending
before this court. But if all it takes to change a judgment from
final to not final is an unmeritorious petition for resentencing, no
judgment would ever be final.
Jones argues that not giving him the benefit of a change in
law violates equal protection. As a threshold for establishing an
equal protection violation, Jones must show the state has adopted
a classification that affects two or more similarly situated groups
in an unequal manner. (People v. Guzman (2005) 35 Cal.4th 577,
591-592.) Jones has failed to make the required showing. Those
whose judgments are final are not similarly situated with those
whose judgments are not final. The state has an interest in the
finality of litigation by treating judgments as final.
5.
DISPOSITION
The judgment (order) is affirmed.
NOT TO BE PUBLISHED.
GILBERT, P. J.
We concur:
YEGAN, J.
PERREN, J.
6.
William C. Ryan, Judge
Superior Court County of Los Angeles
______________________________
Linda L. Gordon, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Steven E. Mercer and Noah P. Hill, Deputy
Attorneys General, for Plaintiff and Respondent.
7.