P. v. Jones

Filed 3/22/06 P. v. Jones CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Kings County. Louis F. Bissig, Judge.

J. Peter Axelrod, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, Julie A. Hokans and John A. Thawley, Deputy Attorneys General, for Defendant and Respondent.

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Joshua Steven Jones pled guilty to two counts of assault with a semiautomatic firearm, and admitted he personally used a firearm and he personally inflicted great bodily injury. (Pen. Code, §§ 245, subd. (b), 12022.5, subd. (a), 12022.7, subd. (a).)^[1] He appeals from the aggravated term imposed by the trial court.

Jones argues the trial court misread his juvenile record, thus finding circumstances in aggravation that did not exist. As a result, Jones asserts the trial court abused its discretion in imposing an aggravated term. We affirm the judgment.

FACTUAL AND PROCEDURAL SUMMARY

Jones went to a New Year's Eve party armed with a firearm. A fight broke out. Jones pulled out his gun, aimed it at the crowd, and pulled the trigger two or three times. No shots were fired as the gun apparently jammed. Jones chambered a round, pointed the gun at Craig Dawkins and James Reese and successfully fired two or three shots. Reese was shot in the chest, but survived. Jones claimed he was attempting to protect his cousin.

He was charged with two counts of attempted murder (§§ 664, 187), three counts of assault with a firearm (§ 245, subd. (b)), and one count of being a minor in possession of a firearm (§ 12101, subd. (a)(1)). Personal use of a firearm (§ 12022.5, subd. (a)) and personal infliction of great bodily injury (§ 12022.7, subd. (a)) were charged as enhancements. Jones pled guilty to two counts of assault with a firearm and admitted the two enhancements in exchange for dismissal of the remaining counts. He was sentenced to the aggravated term of nine years for the first assault count, the aggravated term of 10 years for the firearm use enhancement, and three years for the great bodily injury enhancement. He was sentenced to two years for the second assault count (one-third the midterm) and one year four months for the firearm use enhancement (one-third the midterm). All terms were imposed consecutively, for a total term of 25 years 4 months.

DISCUSSION

Jones argues the trial court abused its discretion when it imposed an aggravated term for the first assault count because it found factors in aggravation that did not exist. Specifically, Jones argues the trial court found he had a history of violent crime and multiple violations of probation as a juvenile, which were not true. Jones acknowledges that we review sentencing choices for an abuse of discretion. (People v. Downey (2000) 82 Cal.App.4th 899, 910.) He argues the trial court abused its discretion in this case because of the claimed erroneous findings.

Jones's juvenile record indicated three offenses. The first occurred in 1994 when he and a companion were stopped for shoplifting and released after receiving a warning. The second occurred in 2001 when Jones was found to have committed a battery on school grounds. (§ 243.2, subd. (a).) He was placed on informal probation. He failed to appear for his review hearing and informal probation was terminated and criminal proceedings reinstated. In 2002 the juvenile court found Jones violated his probation and he was sent to boot camp. In 2004 Jones was arrested for possession of marijuana for sale. (Health & Saf. Code, § 11359.) He failed to appear for the hearing and a bench warrant was issued. He appeared before the juvenile court two months later and the allegation was found true. He was ordered to remain a ward of the juvenile court and remained on probation until December 1, 2005. This crime occurred on January 1, 2005, while Jones was on probation.

The trial court adopted its tentative ruling in sentencing Jones. The relevant portion of the tentative ruling states:

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