P. v. Jones and Ross

Filed 3/15/06 P. v. Jones and Ross CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

SECOND APPELLATE DISTRICT

DIVISION FIVE

APPEAL from a judgment of the Superior Court of Los Angeles County, Lisa M. Chung, Judge. Affirmed with modifications.

Victoria H. Stafford, under appointment by the Court of Appeal, for Defendant and Appellant Robert Vincent Jones.

Marylou Hillberg, under appointment by the Court of Appeal, for Defendant and Appellant Arthur J. Ross.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Robert F. Katz and Roy C. Preminger, Deputy Attorneys General, for Plaintiff and Respondent.

I. INTRODUCTION

Defendants, Robert Vincent Jones and Arthur James Ross, appeal from their convictions for: kidnapping to commit robbery (Pen. Code,^[1] § 209, subd. (b)(1)); second degree robbery (§ 211); three counts of attempted second degree robbery (§§ 211, 664); and two counts of assault with a semiautomatic firearm. (§ 245, subd. (b).) The jury also found. Mr. Jones personally used a firearm in the: kidnapping to commit robbery; second degree robbery (§§ 12022.5, subd. (a), 12022.53, subd. (b)); and assaults with a semiautomatic firearm. (§§ 667.5, subd. (c), 1192.7, subd. (c), 12022.5, subd. (a)). The jury also found as to all counts against Mr. Ross, a principal was armed with a firearm. (§ 12022, subd. (a)(1).) The trial court found that Mr. Ross was previously convicted of a serious felony. (§§ 667, subd. (b)–(i), 1170.12.)

We conclude that there was no substantial evidence that the victim named in count 1, Jamie Rivas, was subjected to an aggravated kidnapping within the meaning of section 209, subdivisions (a) and (b)(1). We reduce defendants' count 1 convictions to the lesser included offense of felony false imprisonment in violation of section 237, subdivision (a). This renders moot some of the parties' contentions. We reject the remainder of defendants' arguments that: the severance motion should have been granted; there was instructional error in connection with CALJIC Nos. 2.08 and 2.72; there was insufficient evidence of an aggravated assault; and there was insufficient evidence that the weapon used during the robberies was a semiautomatic firearm.

II. FACTUAL BACKGROUND

We view the evidence in a light most favorable to the judgment. (Jackson v. Virginia (1979) 443 U.S. 307, 319; People v. Osband (1996) 13 Cal.4th 622, 690; Taylor v. Stainer (9th Cir. 1994) 31 F.3d 907, 908-909.) Mr. Ross is Mr. Jones' uncle. Vyron Harris, the named victim in count 2 of the amended information, was employed as a cashier at the Sam's Club store in Palmdale on January 5, 2004. Mr. Harris's sister, Valon Harris, had known Mr. Ross and Mr. Jones, for approximately three years. Mr. Ross was a personal friend. Ms. Harris worked with Mr. Jones at the TJ-Maxx store in Palmdale in 2003. Ms. Harris occasionally smelled the odor of marijuana in the break room of the TJ-Maxx store. Mr. Jones was present on one of those occasions.

Mr. Ross was employed as a team leader at the Sam's Club store in Palmdale on January 5, 2004. Mr. Ross was in charge of the hard lines section. Mr. Ross's responsibilities included: stocking and moving merchandise; insuring merchandise is displayed properly; and bailing boxes in the receiving area of the store. Mr. Ross was supervised by a merchandising manager. Mr. Ross worked from 2 to 10 p.m. on January 5, 2004. Mr. Ross took his lunch break from 6:30 to 7:02 p.m. that day.

Delia Contreras, the count 4 victim, was a closing manager at the Sam's Club store on January 5, 2004. In that capacity, she was responsible for the cashiers and their handling of money within the store. When a cashier closed out for the evening, she or he walked upstairs to a counting room to count their money. Thereafter, the money would be delivered to a cash office. Each of those rooms has a pass-code lock. Most employees had the access code to the counting room door. However, only the managers and the employees working in the cash office have access to that pass code. Approximately 20 to 30 cashiers work at a given time. The Sam's Club store has surveillance cameras throughout, including: upstairs; on the registers; in the receiving department; and on the working floor. In addition, there are cameras positioned at the front doors facing the street. The second floor, which is accessed by stairway toward the back of the store, contains the managers' office, a personnel break room, a marketing room, the counting room, and a cash office.

Ms. Rivas, the victim named in count 1 of the information, was working at the Sam's Club on January 5, 2004. At approximately 7:45 p.m., Ms. Rivas walked upstairs to the break room and took a seat facing the television, with her back to the lockers and stairway. Ms. Rivas began checking the voicemail on her cellular telephone. Mr. Jones came up behind Ms. Rivas and grabbed her around the neck. Ms. Rivas believed someone was â€