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Name: People v. Jones
Case #: C087494
Court: CA Court of Appeal
District 3 DCA
Opinion Date: 06/02/2021

Although victim did not see, hear, or feel defendant’s gun, there was sufficient evidence to support personal gun use enhancement. Jones approached the victim (and her toddler grandchild) as she entered her car, gesturing as if he had a gun in pocket, and told her nothing would happen if she did what he said. He demanded her cell phone so she could not call the police and directed her to drive him around to various locations. He eventually took over driving and the victim actually saw the gun at this time. Later he parked the car and forced the victim to orally copulate him. He then drove to another location, where he took money from her and then allowed her to leave on foot with her granddaughter as he drove away in her car. Jones was convicted of two counts of kidnapping during a carjacking, two counts of robbery, and one count of forcible oral copulation. For each count the jury also found Jones personally used a firearm in the commission of the offense (Pen. Code, § 12022.53, subd. (b)). On appeal, he raised a number of issues, including that the evidence was insufficient to support the firearm enhancement attached to the first robbery count (the cell phone) because that robbery was complete before Jones displayed the gun in a menacing fashion. Held: Affirmed. After reviewing relevant case law, the Court of Appeal concluded Jones used a firearm within the meaning of section 12022.53 even though the victim did not see, hear, or feel the gun when he took her cell phone. “[W]hat is required is not awareness of the weapon’s presence on the part of the victim, but rather ‘facilitative, weapon-related conduct’ on the part of the defendant.” (Quoting People v. Granado (1996) 49 Cal.App.4th 317, 324.) Jones “employed the gun in his pocket in furtherance of the offenses of kidnapping and robbery by gesturing to [the victim] with the gun in his pocket, telling her he had one, and further telling her to do what he said and nothing would happen to her or the baby, suggesting that disobeying would result in him using the gun to harm both of them.”

The single larceny doctrine does not apply here, where the robberies were separated in time and space and by intervening felony conduct. Jones also argued that he could not be separately convicted of the two robberies (of the cell phone and of the money), based on the single larceny doctrine. The Court of Appeal disagreed. The single larceny doctrine may apply where the offenses were committed pursuant to one intention, one general impulse, and one plan. However, it may not apply where there were several separate and distinct acts of theft, even if committed pursuant to a single overarching scheme. Here, the first robbery occurred when Jones took the victim’s cell phone. The second robbery occurred after there were several other acts—driving around, stopping, getting out of the car to go to an apartment to pick up drugs, getting out of the car to go to a store, changing drivers, committing a sexual assault, and more driving around. The robberies were not committed in a single, indivisible transaction and separate convictions were permissible.

Penal Code section 654 does not preclude multiple punishment for the robberies where they were not part of an indivisible course of action. Jones also argued that section 654 applied to preclude concurrent sentences for the two robbery convictions. The Court of Appeal disagreed. The evidence was more than sufficient to support the trial court’s implied finding that the two robberies were not part of an indivisible course of conduct. The mental element of theft may have been the same, but Jones had time between the robberies to reflect on his actions and renew his intent to steal. Section 654 does not preclude multiple punishment for the two separate and distinct robberies.