People v. Jackson CA2/8 ( 2021 )

Filed 4/9/21 P. v. Jackson CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B299685
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. MA073288)
v.
JULIUS CAESAR JACKSON II,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County. Shannon Knight, Judge. Affirmed as modified.
Patricia A. Scott, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Steven D. Matthews and Michael J. Wise,
Deputy Attorneys General, for Plaintiff and Respondent.
**********
A jury found defendant and appellant Julius Caesar
Jackson II guilty of multiple felonies, including attempted
murder and kidnapping to commit robbery. Defendant contends
his conviction for kidnapping to commit robbery is not supported
by substantial evidence and that the aggravated kidnapping
statute is so impermissibly vague that it violates due process.
Defendant also contends the one-year prison prior enhancements
must be stricken from his sentence in light of the passage of
Senate Bill 136 (2019–2020 Reg. Sess.) during the pendency of
this appeal and that the abstract of judgment must be corrected
to reflect the correct amount of fees imposed by the trial court at
sentencing.
We conclude the one-year enhancements must be stricken
and modify the judgment accordingly. We otherwise reject
defendant’s contentions and affirm the judgment of conviction in
all other respects.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant was charged by information with attempted
murder (Pen. Code, §§ 187, subd. (a), 664; count 1), kidnapping to
commit robbery (§ 209, subd. (b)(1); count 2), kidnapping (§ 207,
subd. (a); count 3), second degree robbery (§ 211; count 4), assault
with a firearm (§ 245, subd. (a)(2); count 5), possession of a
firearm by a felon (§ 29800, subd. (a)(1); count 6), unlawful
possession of ammunition (§ 30305, subd. (a)(1); count 7) and
attempted second degree robbery (§§ 211, 664; count 8). Firearm
use allegations were alleged pursuant to sections 12022.5,
subdivision (a) and 12022.53, subdivisions (b) and (c). It was also
alleged defendant suffered a prior conviction that qualified as a
serious or violent felony (§ 667, subd. (a)(1), § 667, subds. (b)–(j),
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§ 1170.12) and three additional prior convictions qualified as
prison priors (§ 667.5, subd. (b)).
The charges arose from events that took place in the early
morning hours of February 21, 2018. John Carreon was working
the front desk at a hotel in Lancaster when he saw two
individuals approach the glass lobby doors around 4:00 a.m.
They were wearing gloves and hooded sweatshirts, and had
bandanas tied around their faces. They attempted to yank the
front doors open. Mr. Carreon pressed the button at the desk
that activated a magnet to prevent the doors from being opened.
After pulling on the door handles several times, the two fled in a
dark-colored car. Mr. Carreon called the sheriff’s department
and reported the incident. The call was played for the jury.
Video footage from the hotel security cameras showed one of the
individuals approaching the hotel doors with a gun, wearing
camouflage pants and a hoodie.
Thirty to forty minutes later, Todd Gear was in the
driveway outside his Lancaster home loading up his truck with
his work tools. He noticed a dark blue car with its engine
running had stopped in front of his neighbor’s house in the
middle of the street instead of at the curb. That seemed odd but
Mr. Gear continued what he was doing because he needed to get
to work.
As Mr. Gear started to get into his truck, he felt someone
grab him from behind and press a gun against his head, under
his right ear. He heard a male voice demand all his money and
threaten to kill him if he did not comply. The man’s left arm was
around Mr. Gear’s neck in something like a chokehold. The man
reached into Mr. Gear’s pants pocket and took his wallet.
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The man then dragged Mr. Gear approximately 25 to
30 feet into the middle of the street and ordered him to get down
on the ground and stay there. While laying face down in the
street, Mr. Gear could see the man was wearing camouflage
pants and light gray or blue running shoes.
The man got in the passenger side of the waiting car and
the car sped off. Mr. Gear was shaken but he decided to follow
the car in his truck. He called 911 as he drove. Soon afterward,
he saw the car pull over, and the man from the passenger seat
got out and crouched down near a telephone pole. Mr. Gear
almost immediately saw a muzzle flash and was sprayed in the
face with glass from a bullet shattering his windshield. Mr. Gear
quickly turned his truck around to get away. He was still
speaking with the 911 operator, explaining what was happening.
He stopped his truck and waited for the sheriff’s deputies who
arrived on the scene shortly thereafter. The 911 call was played
for the jury.
Defendant was on parole at the time of these events and
wearing a GPS monitoring device on his ankle. Data from that
device showed defendant was in the vicinity of the Lancaster
hotel, Mr. Gear’s home, and the location on the street where the
shooting occurred at the relevant times.
Defendant testified. He said in February 2018 he was
homeless and living in his car (a 2008 blue Yukon). He admitted
he was on parole and wearing a GPS monitoring device on his
ankle.
He said that on February 20, 2018, he visited several
different locations of a gambling club called Tap Tap. In the
early morning hours of February 21, he drove to a local hotel to
drop off his girlfriend but could not recall exactly which one it
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was. He went to another Tap Tap location and while in the
parking lot, he changed his clothes because they were dirty. He
admitted he had been wearing camouflage pants and running
shoes. A guy called Lojack that he knew from clubbing showed
up with a Hispanic male he did not know. They got into
defendant’s car with him to do drugs. Defendant started
watching a movie on his phone and eventually fell asleep in the
back of the car. He was awakened by the sound of gunshots. He
had no idea where he was but because he was on parole, he
wanted to get away from whatever was happening. He jumped
out of the car and took off running. Defendant eventually called
his friend Tay to come pick him up. He did not call the police to
report what had happened.
The next day, Tay drove defendant to his friend Crystal
Provencio’s house where he kept some of his belongings and often
took a shower because he was homeless. He noticed his car was
parked on the street near her home. He said he had no idea how
it got there. Before leaving, he left some of his dirty clothes at
Crystal’s including the camouflage pants he had been wearing
that night.
The following night, defendant was sleeping in his car
when he was awakened by several deputies knocking on the
window. The deputies told him his car matched the description of
a vehicle used in an armed robbery. Defendant said he was
frightened and did not want to go back to jail and he reached for
his handgun that was tucked between the seat and the center
console. The deputies yelled at him to put his hands on the
steering wheel and he eventually put his hands in the air. He
said he was then pulled from the car and arrested.
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Defendant denied attempting to rob Mr. Carreon and
denied robbing or shooting at Mr. Gear. Defendant said he was
asleep in the car at the various locations where the GPS records
for his ankle monitor showed him to be.
The jury found defendant guilty on all counts, except
count 3, the lesser included to count 2. Count 3 was dismissed.
The jury found true all the firearm use allegations. The court
found true the prior conviction allegations.
At the sentencing hearing, defendant made an oral motion
to strike his prior convictions. In denying the motion, the court
explained that defendant had “continued to commit new offenses”
since the earliest of the priors in 1999, including new felonies,
and that it would not be “in the spirit of justice” to strike any
prior convictions. In imposing sentence, the court stated that
given the nature of the crimes, defendant deserved the “longest
prison term possible.” The court declined to exercise its
discretion to strike any of the enhancements.
The court imposed a sentence of 72 years 8 months, plus
28 years to life. The court awarded defendant 564 total days of
presentence custody credits and imposed fees and fines as
required by law.
This appeal followed.
DISCUSSION
1. The Substantial Evidence Argument (Count 2)
Defendant contends there is insufficient evidence
supporting his conviction for kidnapping to commit robbery.
In resolving a question of substantial evidence in a criminal
case, our role “is a limited one.” (People v. Ochoa (1993) 6 Cal.4th
1199, 1206.) “The proper test for determining a claim of
insufficiency of evidence in a criminal case is whether, on the
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entire record, a rational trier of fact could find the defendant
guilty beyond a reasonable doubt.” (People v. Jones (1990)
51 Cal.3d 294, 314.) “[W]e must view the evidence in the light
most favorable to the People and must presume in support of the
judgment the existence of every fact the trier could reasonably
deduce from the evidence.” (Ibid.) We do not resolve credibility
issues or conflicts in the evidence. “[I]f the verdict is supported
by substantial evidence, we must accord due deference to the
trier of fact.” (Ibid.)
Asportation is the essential element of aggravated
kidnapping. Penal Code section 209, subdivision (b)(2) provides:
“This subdivision shall only apply if the movement of the victim
is beyond that merely incidental to the commission of, and
increases the risk of harm to the victim over and above that
necessarily present in, the intended underlying offense.”
Defendant argues there was only evidence the victim was
moved a short distance to the middle of the street before
defendant fled the scene. He says the minimal movement of the
victim was merely a continuous part of the ongoing robbery and
did not increase the risk of harm to him.
In deciding whether the movement of the victim was
merely incidental to the robbery, the jury evaluates the “ ‘ “scope
and nature” of the movement. [Citation.] This includes the
actual distance a victim is moved. However, . . . there is no
minimum number of feet a defendant must move a victim in
order to satisfy the first prong.’ ” (People v. Martinez (1999)
20 Cal.4th 225, 233 (Martinez), overruled in part on other
grounds in People v. Fontenot (2019) 8 Cal.5th 57, 70.)
The jury must then decide whether the movement
subjected the victim to an increased risk of harm above and
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beyond that inherent in the robbery. (Martinez, supra,20 Cal.4th at p. 233.) “ ‘This includes consideration of such
factors as the decreased likelihood of detection, the danger
inherent in a victim’s foreseeable attempts to escape, and the
attacker’s enhanced opportunity to commit additional crimes.
[Citations.] The fact that these dangers do not in fact materialize
does not, of course, mean that the risk of harm was not increased.
[Citations.]’ ” (Ibid.) Under the 1997 amendments to Penal Code
section 209, subdivision (b)(2), the Legislature eliminated the
former requirement “that the movement of the victim
‘substantially’ increase the risk of harm to the victim.” (People v.
Vines (2011) 51 Cal.4th 830, 869, fn. 20.) Under the amended
statute, it suffices if the harm was increased in some manner,
and it need not be substantial. (Ibid.)
Our Supreme Court has concluded the increased risk of
harm to the victim is not limited to bodily harm but includes an
increased risk of psychological harm. (People v. Tuan Van
Nguyen (2000) 22 Cal.4th 872, 885 [“the Legislature intended to
target coerced movement resulting in an increased risk either of
grave physical injury or of mental terror”]; accord, People v.
Robertson (2012) 208 Cal.App.4th 965, 984.)
People v. Corcoran (2006) 143 Cal.App.4th 272 (Corcoran)
involves facts similar to the facts in this case. There, the
defendant and an accomplice entered a bingo hall and attempted
a robbery. The accomplices aborted their effort to obtain money
from the victims after one of the victims escaped. (Id. at p. 279.)
They herded the remaining victims at gunpoint approximately
10 feet to a back room and threatened to kill them if they tried to
leave. Defendant and his accomplice then fled the scene. (Ibid.)
In affirming the conviction for aggravated kidnapping, the court
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said, “the movement of the victims did not serve to facilitate the
forcible attempted taking of money from the bingo hall.” (Id. at
p. 280.) Rather, it served purposes unrelated to the attempted
robbery, “removing the victims from public view, decreasing the
odds that the attempted robbery of cash from the bingo hall
would be detected, increasing the risk of harm should any victim
attempt to flee, and facilitating the robbers’ escape.” (Ibid.)
Here, defendant forcibly took Mr. Gear’s wallet at gunpoint
after threatening to kill him. Instead of immediately fleeing with
the wallet, defendant dragged Mr. Gear approximately 25 to
30 feet to the middle of the street, using a chokehold and
continuing to hold a gun to Mr. Gear’s head. Defendant then
ordered Mr. Gear to get down on the ground and not to move.
These actions were not necessary to accomplish the robbery of
Mr. Gear’s wallet. They were meant to increase Mr. Gear’s fear
as he lay on the ground, vulnerable and uncertain what further
harm defendant might inflict, and they made it easier for
defendant to flee the scene. The evidence amply supports
defendant’s conviction for aggravated kidnapping.
2. The Void for Vagueness Argument (Count 2)
Defendant contends Penal Code section 209,
subdivision (b)(2), defining the asportation element of aggravated
kidnapping, is impermissibly vague and violates his due process
rights.
Respondent contends defendant forfeited this argument by
failing to object to, or seek modification of, CALCRIM No. 1203
which instructs the jury on the asportation element of Penal Code
section 209. The lack of a timely and meaningful objection in the
trial court ordinarily forfeits the contention for appeal. (People v.
Marchand (2002) 98 Cal.App.4th 1056, 1060 (Marchand).)
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Defendant concedes he did not object to the jury instruction
but argues he is not raising a claim of instructional error. He
says he may raise a facial challenge to the statute without having
objected below and that we may consider the argument because it
raises a pure question of law.
Defendant should have raised his objection in the trial
court. If he had, the trial court could have considered proposed
modifications to CALCRIM No. 1203 to address the due process
concerns defendant now raises for the first time in this court.
However, we will consider the merits of defendant’s claim
because the facial challenge to the statutory language raises a
pure question of law. (Marchand, supra, 98 Cal.App.4th at
p. 1061 [appellate court may consider constitutional issues raised
for the first time on appeal especially where enforcement of penal
statutes is involved].)
“ ‘The constitutional interest implicated in questions of
statutory vagueness is that no person be deprived of “life, liberty,
or property without due process of law,” as assured by both the
federal Constitution (U.S. Const., Amends. V, XIV) and the
California Constitution (Cal. Const., art. I, § 7).’ ” (People v.
Morgan (2007) 42 Cal.4th 593, 605 (Morgan).)
There is a strong presumption favoring the
constitutionality of legislative enactments. Statutes “ ‘ “must be
upheld unless their unconstitutionality clearly, positively, and
unmistakably appears. [Citations.] A statute . . . cannot be held
void for uncertainty if any reasonable and practical construction
can be given to its language.” ’ [Citation.] Therefore, ‘a party
must do more than identify some instances in which the
application of the statute may be uncertain or ambiguous; he
must demonstrate that “the law is impermissibly vague in all of
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its applications.” . . . [Citation.]’ ” (Morgan, supra, 42 Cal.4th at
pp. 605–606.)
Defendant has not made such a showing here. He says the
statute is unconstitutionally vague because it requires the trier of
fact to guess at the type of movement required to accomplish a
“hypothetical ‘mere robbery’ ” and to guess at the “ ‘harm’ or ‘risk
of harm’ that would have arisen from a hypothetical ‘mere
robbery.’ ”
Defendant relies on Johnson v. United States (2015)
576 U.S. 591 and its conclusion that a clause in the Armed
Career Criminal Act was impermissibly vague. The clause in
question imposed increased penalties for the federal crime of
felon in possession of a firearm if the defendant had three or
more prior convictions for a violent felony and included in the
definition of “ ‘violent felony’ ” one that “ ‘involves conduct that
presents a serious potential risk of physical injury to another
. . . .’ ” (Johnson, at p. 593.) The Supreme Court found that
language was too imprecise to give fair notice about what conduct
fell within the purview of the statute. (Id. at p. 606.) Defendant
says Penal Code section 209, subdivision (b)(2) is similarly infirm.
That argument was already rejected in People v. Ledesma (2017)
14 Cal.App.5th 830, 838 (Ledesma).
Ledesma explained, “[u]nlike the . . . clause at issue in
Johnson, California’s asportation requirement compels juries and
courts to apply a legal standard to real-world facts. As Johnson
itself recognizes, this difference is crucial.” (Ledesma, supra,
14 Cal.App.5th at p. 838.) The court in Ledesma reasoned that
Johnson distinguished the imprecise clause from other federal
and state criminal laws that use terms like “substantial risk,”
“grave risk,” and “unreasonable risk,” which are constitutional
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because they gauge the riskiness of conduct on a particular
occasion. (Ledesma, at p. 838.) Ledesma found the Supreme
Court in Johnson did “ ‘not doubt the constitutionality of [such]
laws that call for the application of a qualitative standard such as
“substantial risk” to real-world conduct . . . .’ ” (Ledesma, at
p. 838.) Ledesma held California’s aggravated kidnapping
statute applies the qualitative standards of whether the
movement was merely incidental to the underlying felony and
whether it substantially increased the risk of harm above that
inherent in committing the underlying felony. (Id. at pp. 838–
839.)
We agree with and follow Ledesma. Penal Code
section 209, subdivision (b)(2) does not require factfinders to rely
on hypothetical abstractions and speculation. The statutory
language is not impermissibly vague, and defendant’s due process
rights were not infringed.
3. The Sentencing Claims
a. The prison priors
The court imposed nine 1-year terms commonly referred to
as “prison priors” pursuant to Penal Code section 667.5,
subdivision (b) (three 1-year terms on each of counts 1, 2 & 8).
The enhancements were lawfully imposed at the time of
sentencing in June 2019.
During the pendency of this appeal, Senate Bill 136 (2019–
2020 Reg. Sess.) was passed, amending Penal Code section 667.5.
(Stats. 2019, ch. 590, § 1.) The parties agree it applies
retroactively and that defendant is entitled to the benefit of the
amendments to section 667.5 which became effective January 1,
2020. We agree with the parties. (See, e.g., People v. Winn
(2020) 44 Cal.App.5th 859, 872–873 (Winn).) Because defendant’s
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prior convictions are not the enumerated sexually violent offenses
now required for imposition of a one-year enhancement, the one-
year terms imposed on counts 1, 2 and 8 must be stricken.
We may strike the enhancements without remanding for a
new sentencing hearing. In imposing sentence, the court chose
upper and consecutive terms and stated its intention was “to
impose the longest prison term possible for [defendant] believing
that he is deserving of such a sentence.” Because the trial court
imposed the maximum sentence, it is not necessary to remand for
a new sentencing hearing. (People v. Buycks (2018) 5 Cal.5th
857, 896, fn. 15; Winn, supra, 44 Cal.App.5th at p. 873.)
Remanding under these circumstances would serve no purpose
but to waste scarce judicial resources. We therefore strike each of
the nine 1-year enhancements imposed pursuant to Penal Code
section 667.5, subdivision (b) and affirm the judgment of
conviction as so modified.
b. The abstract of judgment
At sentencing, among other fees and fines, the court
imposed a $30 criminal conviction assessment (Gov. Code,
§ 70373) and a $40 court operations assessment (Pen. Code,
§ 1465.8). The minute order from the sentencing hearing and the
abstract of judgment reflect a criminal conviction assessment in
the amount of $210 and a court operations assessment in the
amount of $280.
Defendant contends the abstract of judgment must be
corrected to reflect that the trial court orally imposed only a
$30 criminal conviction assessment (Gov. Code, § 70373) and a
$40 court operations assessment (Pen. Code, § 1465.8) and not
the $210 and $280 assessments memorialized in the abstract.
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Defendant says the abstract must be amended to conform to the
court’s oral pronouncement at the sentencing hearing.
Ordinarily the oral pronouncement of judgment controls.
(See, e.g., People v. Thompson (2009) 180 Cal.App.4th 974, 978.)
However, this is not an inflexible rule. Where portions of the
record are in conflict, “ ‘that part of the record will prevail, which,
because of its origin and nature or otherwise, is entitled to
greater credence [citation]. Therefore whether the recitals in the
clerk’s minutes should prevail as against contrary statements in
the reporter’s transcript, must depend upon the circumstances of
each particular case.’ ” (People v. Smith (1983) 33 Cal.3d 596,
599.) Absent evidence to the contrary, we presume the trial court
followed the applicable law in imposing sentence. (See, e.g.,
People v. Moran (1970) 1 Cal.3d 755, 762; People v. Mosley (1997)
53 Cal.App.4th 489, 496; see also Evid. Code, § 664 [“It is
presumed that official duty has been regularly performed.”].)
Here, the imposition of the two assessments on each of the
seven counts on which defendant was convicted was mandated by
the statutory language. We find no reason in the record to
presume the trial court was unaware of this well-established law.
While the court neglected to state on the record that the
assessments were “as to each count,” the court’s minute order
accurately so reflects. The abstract of judgment is in accord with
the court’s minute order and the applicable law and need not be
amended. (See, e.g., People v. Sencion (2012) 211 Cal.App.4th
480, 484 [rejecting claim abstract of judgment required
amendment where trial court failed to orally impose criminal
conviction assessment and court operations assessment on four
counts as to which sentence had been stayed; abstract correctly
memorializing assessments on each count was not in error
14
despite failure of court to state assessments in oral
pronouncement of judgment].)
DISPOSITION
Each of the nine 1-year enhancements imposed pursuant to
Penal Code section 667.5, subdivision (b) is stricken. The
judgment of conviction, as so modified, is affirmed in all other
respects.
The superior court is directed to prepare a new abstract of
judgment in accordance with this opinion and transmit it
forthwith to the Department of Corrections and Rehabilitation.
GRIMES, Acting P. J.
WE CONCUR:
STRATTON, J.
WILEY, J.
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