P. v. Jackson
Filed 1/28/14 P. v. Jackson CA2/3
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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.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 THREE
THE PEOPLE,
Plaintiff and Respondent,
v.
Richard Deon Jackson,
Defendant and Appellant.
B248063
(Los
Angeles County
Super. Ct. No.
BA393122)
APPEAL
from a judgment of the Superior Court of
Los Angeles County, Monica Bachner, Judge.
Affirmed.
California
Appellate Project, Jonathan B. Steiner and Ann Krausz, under appointment by the Court of
Appeal, for Defendant and Appellant.
No
appearance for Plaintiff and Respondent.
Defendant
and appellant, Richard Deon Jackson, appeals from the judgment entered
following a jury trial which resulted in his conviction of two counts of second
degree robbery (Pen. Code, § 211),
name="_ftnref1" title="">[1]
during the commission of which he personally used a firearm (§ 12022.53, subd.
(b)). The trial court sentenced Jackson to 13 years
in prison. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. Facts.
a. The
prosecution’s case.
At
approximately 7:00 p.m. on the evening of January 22, 2012, Julio Adrian
Hernandez Luna
title="">[2]
was sitting in his Toyota Corolla parked on Harcourt Boulevard in the residential area near the intersection of Harcourt and Westhaven Avenue in Los Angeles. Hernandez had been visiting
his cousin, Alberto Hernandez. When
Hernandez decided to leave Alberto’s home, Alberto walked with Hernandez to his
car.
Hernandez’s car door was open and, as
the two men were talking, a dark-colored car with darkened windows approached
and stopped next to the Corolla. “[A]
young man came out from inside . . . the car†and stood up until
approximately half his body was outside the car’s sunroof. When the man told Hernandez and Alberto to
give him their wallets, Hernandez at first ignored him. Hernandez told Alberto he believed someone was
talking to him. However, when Hernandez
then looked at the man, who was approximately three feet away and pointing a
gun at him, Hernandez decided to give to the man the approximately $80 he had
in his wallet.
Alberto, who had
been facing a wall when the dark-colored car first pulled up, turned around to
see Jackson, who was lit by a street lamp.
Alberto could see that Jackson was wearing a white T-shirt, leaning out of the sunroof of a green
Lexus with tinted windows while holding a black gun in his right hand. Jackson pointed the gun at Alberto and Hernandez and told them to give him
their wallets or he would shoot them.
Alberto, afraid Jackson would use the gun, walked to a spot where Jackson could reach
his outstretched hand and gave to Jackson his wallet. Jackson “grabbed
the wallet [and Hernandez’s money, then]†“went down right away and the car
took off.†After the Lexus drove away,
Alberto immediately used his cell phone to call 911.
had just been robbed and police officers arrived “less than 30 minutesâ€
later. However, before officers arrived,
Hernandez had decided to drive home.
When
the officers arrived, they asked Alberto if he would go with them to an area
approximately four blocks away to view a suspect. Alberto agreed to go and, when he viewed
Jackson and two other individuals from inside a police car, Alberto indicated Jackson was the man
who had taken his wallet.
Between
two and three hours after he had been robbed, two police officers came to
Hernandez’s home. One of the officers
read to Hernandez an admonition, then showed to him “a set of six different
photographs.†While the incident was
still “fresh in [his] mind,†Hernandez selected one of the photographs and
indicated it was of the gunman. On the
photograph, Hernandez wrote: “This is
the person that pointed at me with the weapon and took my money. I recognize him because of his look.†When Hernandez was shown a second set of
photographs, he circled one, then placed his initials, the date and the time
next to it. Hernandez picked the person
who appeared to have the “same look that the gunman had when [Hernandez was]
robbed.†Hernandez, however, could not
remember if the man who robbed him had any scars or tattoos. Everything had happened so fast that
Hernandez did not get a good look at the robber’s face. He did, however, notice that the man who took
his money was African-American. With
regard to the car, all he could remember “was that it was black.â€
Los
Angeles Police Officer Brandon Alvarez and his partner, Officer Richard Campos,
were on patrol for the Southwest Division on the evening of January 22, 2012. At approximately 8:00 p.m., the officers received a call regarding an armed robbery which had
occurred near the intersection of Westhaven and Harcourt. The call also described the vehicle involved
as a green, two-door Lexus and the perpetrators as “two male [B]lacks.â€
As the officers were only approximately
five blocks from the site of the robbery, they drove toward the area and, as
they approached the intersection, saw a car which “matched the description of
the suspect vehicle.†Alvarez turned his
patrol car onto Hillcrest, pulled up behind the Lexus and “put [his] spotlights
on the vehicle.†The passenger seated in
the front seat of the car then immediately got out and ran west, through an
apartment complex at 2815 Hillcrest. When the car then quickly “sped off,†Alvarez
followed it as it made several right hand turns. After losing sight of the vehicle for a
moment, Alvarez and his partner turned back onto Hillcrest where they again saw
the Lexus. After the Lexus made a sharp
right hand turn into the driveway of the apartment complex at 2815 Hillcrest,
the officers followed and “did a felony stop on the vehicle.†As Alvarez and Campos got out of
their patrol car, other officers arrived on the scene to provide assistance. The driver of the car was detained and later
identified as Jackson. One other person was found
in the car, a woman who had been sitting in the back seat.
When
he conducted a search of Jackson, who was wearing a white T-shirt, Alvarez
found no money. However, money was “deposited
with him [when he was booked ] into the jail.â€
After
Jackson and the woman who had been sitting in the back seat were taken into
custody, a third individual, a male, was “detained as a possible suspect.†He, too, was wearing a white T-shirt. After Jackson and the other two individuals
had been taken into custody, Alvarez and other officers searched the area “for any
evidence of the crime.†However the
officers recovered neither a wallet nor a gun.
Officer
Campos looked over the Lexus used during the robbery. He noted that the car had tinted windows and
a sunroof. Campos determined
the sunroof was “a mechanical typeâ€
which “goes up, . . . then . . .
actually slide[s] [into] the roof.â€
Los
Angeles Police Patrol Officer Tynisha King was on duty as a patrol officer on January 22, 2012. At approximately 8:00 p.m. that evening, King responded to a call regarding the investigation
of an armed robbery. King proceeded to
the area of Westhaven and Harcourt, where she interviewed the victims. King spoke with Alberto in person, then
interviewed Hernandez by telephone. After
speaking with both men, King assisted with “the field showup.†In conducting such a showup, the officer
transports the victim to an area where a suspect is being held. The officer then admonishes the victim,
informing him or her that the suspect is “in custody temporarily and that the
[victim] needs to inform [the officer] whether or not they are the person who . . .
committed the crime.†If the individual
being held is not that person, then the victim needs to inform the officer of
that fact.
King
first admonished Alberto, who then, while sitting in a patrol car viewed Jackson from a
distance of approximately 20 feet. Alberto
apparently also viewed the individual who had run from the car as well as the
woman who had been riding as a passenger in the rear seat. Alberto identified Jackson, who was standing
in the street being lit by lights from King’s patrol car and street lights, as the
individual who had robbed him. In
addition, Alberto positively identified the vehicle in which Jackson had been
riding when he committed the robbery. When
King was later able to get closer to the Lexus used during the robbery, she
characterized it as dark blue with two doors.
When she had initially seen the car, it was being driven by Jackson and there
had been a woman seated in the rear passenger seat.
Later
that evening, Officer Campos went with a detective to do a follow-up interview
with Hernandez. Campos, speaking in
Spanish, admonished Hernandez, then showed him a group of six photographs
usually referred to as a “photo lineup.†After indicating he understood the
photograph of Jackson and indicated Jackson had been the man who had robbed him.
Los
Angeles Police Officer Brendan Flynn was working as a patrol officer for the
Southwest Division on the evening of January 22, 2012. He responded to a location on Hillcrest Drive,
where he impounded a Lexus automobile.
Flynn conducted an inventory search of the car, completed “an impound
face sheet,†then had the car towed. During
his search of the vehicle, Flynn found neither a gun nor a wallet.
b. Defense
evidence.
Cleotil
Lewis is Jackson’s mother. On January 22, 2012, Lewis had held a baby shower in a recreational center at a park
near her home. At approximately 8:00 p.m., after they had packed all the items from the shower into their
cars, both Lewis and Jackson left the park.
Lewis was driving a minivan and her aunt and cousin were riding with
her. Jackson was driving
a Lexus. The only other person in his
car was his girlfriend, Jasmine. Jackson followed
Lewis as she drove back to her home at 2815 Hillcrest Drive. When they arrived at the
house, both Lewis and Jackson pulled their cars into the driveway and everyone
began unloading the vehicles. As he was bringing
items from his mother’s car into her house, Jackson’s aunt
asked him if he could go to the store and buy her a package of cigarettes. Jackson had left the house less than five minutes earlier when Lewis saw a
bright light outside. When she looked out
the window, she saw that a police car had pulled into her driveway behind Jackson’s car. Lewis stepped out of the house and heard two
officers, both of whom had drawn their guns, yelling, “ ‘Put your hands out
[of] the car now.’ †Both Jackson
and his girlfriend got out of the car and, in response to an officer’s
instructions, laid down on the ground.
Just
as a number of additional officers arrived at the scene, a police officer
handcuffed Jackson and escorted him to the front of the house. In the meantime, a number of officers searched
in and around the car. Although Lewis
attempted to find out what was going on, none of the officers would speak with
her at that time. Jackson was taken
out to the middle of the street, a patrol car pulled up, shined its lights on
him and Lewis then heard a voice on a “walkie-talkie†indicate that Jackson “was
him.†After Jackson was placed
in the back of a patrol car, a police officer approached Lewis and told her Jackson was being
taken into custody for robbery. Lewis
attempted to explain to the officer that it could not have been Jackson because he
had been with her “all day.â€
In
addition to her son, Richard Jackson, a young man named Terrence Jackson was at
Lewis’s home that night. According to
Lewis, Terrence
title="">[7]
had been at her house all evening. When
police officers then asked Lewis if any other men were inside her home, she
told them about Terrence and the officers asked her to have him come
outside. Terrence, who was wearing a
white T-shirt and black jeans, stepped outside and was escorted to the center
of the street where a patrol car shined its lights on him. An officer then told Lewis that Terrence was being
placed under arrest because “he was being resistant[] and he was on parole.â€
Lewis
testified that she, herself, had been convicted of a
turpitude in 1998.
2. Procedural
history.
In
an information filed September 10, 2012, Richard Deon
Jackson was charged with two counts of the serious (§ 1192.7, subd. (c))
and violent (§ 667.5, subd. (c)) felony of second degree robbery (§ 211). It was further alleged that, with regard to
each of the robberies, Jackson had personally used a firearm, a handgun, within
the meaning of section 12022.53, subdivision (b), causing the offenses to
become serious felonies within the meaning of section 1192.7, subdivision
(c)(8) and violent felonies within the meaning of section 667.5, subdivision
(c)(8). In addition, it was alleged
Jackson personally used a handgun within the meaning of sections 12022.5,
1192.7, subdivision (c) and 667.5, subdivision (c) and that any “
above offense[s] [was] to be served in state prison pursuant to . . . section
1170[, subdivision] (h)(3).â€
At
arraignment held on September 10, 2012, Jackson entered
pleas of not guilty to the crimes alleged in counts 1 and 2 and denied all the
remaining allegations. On December 7, 2012, the case was transferred to Department 124 for a trial. On December 10, 2012, after the parties informed the court they were unable to reach a
disposition, the matter was called for a jury
trial.
After
the prosecution presented its case, defense counsel made a motion for dismissal
of the action pursuant to section 1118.1.
The trial court denied the motion, indicating the prosecution had
presented sufficient evidence of each element of each offense to sustain
convictions on appeal.
Before defense
counsel called as a witness
Jackson’s mother, Cleotil Lewis, counsel moved that her 1998 robbery conviction
be excluded as too remote to be probative and, in this instance, extremely prejudicial. The prosecutor argued the offense was Lewis’s
only “impeachable conviction†and involved moral turpitude. The trial court determined that “since [it
was for] the identical crime, [it was] going to have to be sanitized.†The court continued, “I have done the
balancing. I think it is [probative to
her credibility] that she has a felony conviction [and, sanitized,]†“I am
going to allow it.†The trial court
indicated the prosecutor could refer to the prior conviction as “a felony involving
moral turpitude.â€
After Jackson’s mother
testified in his behalf, the trial court informed Jackson he had the
right to testify. The court
explained: “It is your personal
right. You get to make the
decision. It is not your attorney’s
decision. It’s your decision. You consult with your attorney, but it is
your decision . . . .†Jackson indicated
he understood his right, but was choosing not to exercise it. He did not testify.
The matter was given to the jury on December 14, 2012. The jurors deliberated for several
hours, then submitted to the court the following question: “We as the jury would like to know if we go
by the witness’s testimony or by what the [E]nglish translator repeated?†After both parties agreed that the proposed
response was appropriate, the trial court wrote to the jury: “You must rely on the translation provided by
the interpreter.†The following day, the
jury submitted to the trial court the following inquiry: “We would like to know if Julio [Hernandez]
ever identified the defendant in court?†After consulting with counsel, the trial court
responded to the jury’s question in writing, indicating, “You, the jury, must
decide what the facts are.â€
On
the afternoon of December 17, 2012, the jury
indicated it had reached verdicts. With
regard to count 1, the jury’s verdict read:
“We, the [j]ury in the above-entitled action, find the Defendant,
Richard Deon Jackson, guilty of the crime of SECOND DEGREE ROBBERY of Alberto
Hernandez, in violation of . . . Section 211, a [f]elony . . . . [¶] We
further find the allegation that the said defendant, Richard Deon Jackson,
personally used a firearm, to wit: a
handgun, within the meaning of . . . Section 12022.53[, subdivision (b)] to be
true.†As to count 2, the jury
indicated: “We, the [j]ury in the
above-entitled action, find the Defendant, Richard Deon Jackson, guilty of the
crime of SECOND DEGREE ROBBERY of Julio Hernandez, in violation of . . .
Section 211, a [f]elony . . . . [¶] We
further find the allegation that the said defendant, Richard Deon Jackson,
personally used a firearm, to wit: a
handgun, within the meaning of . . . Section 12022.53[, subdivision]
(b) to be true.â€
At
proceedings held on February 21, 2013, the trial
court indicated it had received a sentencing memorandum from each of the
parties and had reviewed Jackson’s probation report. Although
the trial court considered Jackson’s youth
title="">[8]
and the fact that he is a straight “A†student, it also considered that he had
“engaged in violent conduct which [posed a] serious [threat] to society.†Under these circumstances, the trial court
determined the mid-term of three years for Jackson’s robbery
as alleged in count 1 was appropriate.
The court then, pursuant to section 12022.53, subdivision (b), imposed a
10-year enhancement for Jackson’s use of a firearm during the offense. With regard to the robbery alleged in count 2,
the trial court imposed a concurrent term of three years in prison and a
concurrent term of 10 years for his use of a firearm. The court imposed concurrent terms because
the robberies occurred during “one course of conduct.†In total, Jackson was
sentenced to 13 years in state prison.
The trial court recommended that Jackson be sent to
fire camp, then awarded him presentence custody credit for 398 days actually
served and 59 days of good time/work time, for a total of 457 days.
The
court ordered Jackson to pay an $80 court operations assessment (§ 1465.8, subd.
(a)(1)), a $60 criminal conviction assessment (Gov. Code, § 70373), a $10
crime prevention fine (§ 1202.5), a penalty assessment at a rate of $28 (§
1464, subd. (a); Gov. Code, § 76000), a $6,240 restitution fine (§ 1202.4,
subd. (b)), a stayed $6,240 parole revocation restitution fine (§ 1202.45)
and, pursuant to stipulation, $70 in restitution to Alberto Hernandez and $110
in restitution to Julio Hernandez.
Jackson filed a
timely notice of appeal on April 10, 2013.
CONTENTIONS
After
examination of the record, appointed appellate counsel filed an opening brief
which raised no issues and requested this court to conduct an independent
review of the record.
By
notice filed November
20, 2013, the clerk of this court advised Jackson to submit
within 30 days any contentions, grounds of appeal or arguments he wished this
court to consider. No response has been
received to date.
REVIEW ON APPEAL
We
have examined the entire record and are satisfied counsel has complied fully
with counsel’s responsibilities. (
278-284; People v. Wende (1979) 25
Cal.3d 436, 443.)
DISPOSITION
The
judgment is affirmed.
ALDRICH,
J.
We concur:
CROSKEY,
Acting P. J.
KITCHING, J.
further statutory references are to the Penal Code unless otherwise indicated.
one of the victims is initially referred to as Julio Adrian Hernandez Luna, he
is subsequently referred to as Julio Adrian Hernandez.
