California Court of Appeals, Fourth District, First Division
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[CERTIFIED FOR PARTIAL PUBLICATION[*]]
APPEAL from a judgment of the Superior Court of San Diego County, No. SCD234048 Kerry Wells, Judge.
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
Patricia J. Ulibarri, under appointment by the Court of Appeal, for Defendant and Appellant Shaquille Kasiya Jordan.
Lynda A. Romero, under appointment by the Court of Appeal, for Defendant and Appellant Seandell Lee Jones.
Patricia A. Scott, under appointment by the Court of Appeal, for Defendant and Appellant Rashon Jay Abernathy.
Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General, Lynne G. McGinnis and Kristine A. Gutierrez, Deputy Attorneys General, for Plaintiff and Respondent.
Based on a robbery and killing that occurred on May 11, 2011, when each of the defendants was 17 years old, Rashon Jay Abernathy, Seandell Lee Dupree Jones and Shaquille Kasiya Jordan (collectively, defendants) were found guilty of first degree murder (Pen. Code, §§ 187, subd. (a), 189); two counts of robbery (§ 211); shooting at an occupied motor vehicle (§ 246); and unlawfully taking and driving a vehicle (Veh. Code, § 10851, subd. (a)). Based on a different incident on May 5, 2011, the jury also found Abernathy guilty of an additional count of robbery (§ 211). The jury made true findings that Abernathy personally used a firearm during the robberies, the murder and the shooting at an occupied vehicle. (§ 12022.53, subds. (b), (d).)
The trial court sentenced Jones and Jordan each to a prison term of 25 years to life and sentenced Abernathy to a prison term of 50 years to life.
On appeal, all three defendants contend that (1) the trial court prejudicially erred in failing to instruct that, for the purposes of the felony-murder rule, the jury must find that the target felony (robbery) ended at the point defendants
reached a place of temporary safety, known as "the escape rule"; (2) the sentences imposed by the trial court are unconstitutional under either the federal or state Constitution because they constitute cruel and unusual punishment; and (3) at sentencing, the trial court incorrectly calculated defendants' presentence custody credits. Jones and Abernathy further contend insufficient evidence supports their convictions for unlawfully taking or driving a vehicle, and Jones contends the abstract of judgment does not accurately reflect that his five-year sentence for shooting at an occupied vehicle in count 4 was stayed by the trial court pursuant to section 654.
We conclude that (1) although the trial court erred in failing to instruct with the escape rule for felony murder, the error was not prejudicial; (2) sufficient evidence supports Abernathy's and Jones's convictions for unlawfully taking or driving a vehicle; (3) there is no merit to defendants' contention that their sentences constitute cruel and unusual punishment; (4) Abernathy's and Jordan's judgments should be modified to award an additional day of presentence custody credit; and (5) a clerical error in Jones's abstract of judgment must be corrected to reflect that the sentence on count 4 is stayed pursuant to section 654. Accordingly, we modify the judgment as to Abernathy and Jordan to award an additional day of presentence custody credit, and we order that the abstract of judgment be corrected as to Jones to accurately reflect that his sentence on count 4 is stayed. In all other respects, the judgments are affirmed.
FACTUAL AND PROCEDURAL BACKGROUND
In May 2011, Abernathy placed an advertisement on Craigslist claiming that he had a MacBook Pro computer to sell for $900. After Abernathy communicated with a potential buyer, Erick Castillo, by exchanging text messages, Abernathy met with Castillo at a recreation center on May 5, 2011. Abernathy brought along a friend for the transaction, but the other two defendants were not involved. When Castillo took out $600 in cash to pay for the computer, Abernathy's friend grabbed the money and ran away with Abernathy. Castillo chased them, and as Castillo came closer, Abernathy pulled out a gun and pointed it at Castillo, stating "I'm going to fucking kill you." Castillo gave up the chase and called 911.
A second robbery occurred on May 11, 2011, and involved Abernathy, Jones and Jordan. Using the same Craigslist advertisement, Abernathy arranged to meet with 18-year-old Garrett Berki in front of a school around 9:15 p.m. Berki brought his girlfriend, Alejandra Faudoa, along in the car for the transaction. After waiting in front of the school for a few minutes, Berki
got a call from Abernathy stating that the meeting place had changed to an apartment complex in the neighborhood. Berki drove to the new location, where Abernathy and Jones were waiting outside. Abernathy insisted that Berki show him the money before handing over the computer. During the discussion, Jones either showed Berki a gun or pointed it at him, stating that Abernathy would count the money. Berki handed over the money, and Abernathy demanded that Berki and Faudoa give him their cell phones. Abernathy and Jones then ran away through the apartment complex with a total of $640 and the two cell phones.
According to Abernathy, he got to the scene of the May 11 robbery after being picked up from home in a Honda driven by Jordan, in which Jones was a passenger. Jordan parked near the apartment complex and dropped off Abernathy and Jones so that they could commit the robbery. After the robbery Abernathy and Jones ran back to the Honda, and the three defendants decided to go to a nearby house where Jones's and Jordan's girlfriends lived. According to Abernathy, they stayed at the house for a few minutes but then were asked to leave, so they started driving toward a shopping mall.
Meanwhile, after being robbed, Berki and Faudoa sat in their car for a few minutes before deciding that Berki would drive to the police station to report the robbery. When Berki had driven one or two blocks from the scene of the robbery, he noticed Jordan, Jones and Abernathy in the Honda driving toward him. Berki and Faudoa decided to follow the Honda so that they could get the license plate number. Berki followed the Honda in and out of a parking lot and then through the streets and onto a freeway. Berki was driving close behind the Honda to try to see the license plate, and he was also driving in a manner that he hoped might attract the attention of the police, such as pulling directly in front of the Honda and putting on his brakes.
The Honda exited the freeway while Berki's car was in front of it, but Berki managed to drive over the freeway shoulder and down the off ramp, following the Honda into a residential neighborhood. Both cars ended up on a dead-end street. Berki stopped his car at an angle before the end of the cul-de-sac while the Honda turned around at the end of the cul-de-sac and drove up next to Berki's car. Abernathy pointed a gun out of a backseat window of the Honda and fired one shot into Berki's car. Berki was shot in the left chest and was pronounced dead at the hospital a short time later.
Defendants drove a few blocks away, crashed the Honda and fled into the backyards of the residential neighborhood, where police located them by use of infrared helicopter cameras and K-9 units. After being arrested, Jones, Jordan and Abernathy were taken to the police station, where they made numerous statements connecting themselves to the crimes in a recorded jail
cell conversation. Further, it was discovered that the Honda in which defendants were riding had been stolen a few hours before the second robbery, either on the ...