P. v. Thompson
Defendant appeals his conviction, by jury, of the attempted premeditated and deliberate murder of Adonis Towles (Pen. Code, 187, subd. (a), 664), kidnapping to commit robbery ( 209, subd. (b)(1)), kidnapping ( 207, subd. (a)), second degree robbery ( 211), and shooting at an occupied motor vehicle. ( 246.) The jury further found that a principal personally and intentionally discharged a firearm causing great bodily injury ( 12022.53, subd. (b)-(e)) and that each offense was committed for the benefit of a criminal street gang. ( 186.22, subd. (b)(1).) On the attempted murder and kidnapping for robbery convictions, the trial court sentenced appellant to consecutive terms of life with the possibility of parole. It imposed one term of 25 years to life for the firearm use enhancement. ( 12022.53, subd. (b)-(e).) Another 10-year enhancement term was imposed and stayed. The trial court imposed consecutive determinate terms of 5 years for the kidnapping (count 3) and 1 year for the robbery (count 4), plus gang enhancements of 10 years for each offense. The sentence imposed for shooting at an occupied motor vehicle was stayed pursuant to section 654. Appellant was ordered to pay a restitution fine of $800 and awarded 949 days of presentence custody credit.
Appellant contends the judgment must be reversed because several prejudicial errors occurred. First, the trial court denied his Batson/Wheeler motion after the prosecutor exercised a peremptory challenge to excuse an African-American woman from the jury. Second, the trial court denied his motion for a new trial after jurors expressed a fear of gang retaliation, depriving appellant of his right to trial before an impartial jury. Third, the trial court excluded the testimony of an expert on eyewitness identification. Appellant further contends that the gang enhancements are not supported by substantial evidence, that his conviction of simple kidnapping (count 3) must be reversed because it is a lesser and necessarily included offense of the aggravated kidnapping of which he was also convicted (count 2), that his sentence for robbery should be stayed pursuant to section 654, and that the consecutive terms for simple kidnapping and robbery were incorrectly calculated. Respondent requests that we modify the abstract of judgment to reflect the restitution fines the trial court imposed and to impose the parole revocation fines it omitted.
Court reverse appellant's conviction of simple kidnapping (count 3) because that offense is a lesser and necessarily included offense of aggravated kidnapping. Court modify the judgment to a determinate aggregate term of 13 years, plus 2 consecutive indeterminate terms, each consecutive to each other. Court also modify the amount of the restitution and parole revocation fines. As so modified, Court affirm the judgment.
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