California Court of Appeals, Fourth District, First Division
[254
Cal.Rptr.3d 681] APPEAL from a judgment of the Superior Court
of San Diego County, Frederick Maguire, Judge. Affirmed in
part, reversed in part, and remanded with directions. (Super.
Ct. No. SCD266418)
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COUNSEL
Jerome
P. Wallingford, under appointment by the Court of Appeal, for
Defendant and Appellant.
Xavier
Becerra, Attorney General, Gerald A. Engler, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney
General, Eric A. Swenson and Allison V. Acosta, Deputy
Attorneys General, for Plaintiff and Respondent.
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OPINION
McCONNELL,
P.J.
I
INTRODUCTION
A jury
convicted Ira Alexander Stringer of two counts of aggravated
kidnapping to commit extortion or exact money or property
from another person ( [254 Cal.Rptr.3d 682] Penal Code, §
209, subd. (a); counts 1 and 2),[1] three counts of
aggravated kidnapping to facilitate carjacking (§ 209.5;
counts 5, 6, and 15), two counts of simple kidnapping (§ 207,
subd. (a); counts 9 and 10), two counts of assault with a
firearm (§ 245, subd. (a)(2); counts 11 and 12), one count of
child endangerment (§ 273a, subd. (a); count 13), two counts
of felony possession of a firearm (§ 29800, subd. (a)(1);
counts 14 and 19), and one count of robbery (§ 211; count
18). Stringer admitted a prior serious felony conviction (§ §
667, subd. (a)(1), 668, 1192.7, subd. (c)) and two prior
strikes under the three strikes law (§ § 667, subd. (b), 668,
1170.12), and the jury returned true findings on several
firearm enhancements. The trial court sentenced Stringer to
an aggregate term of life without the possibility of parole,
plus an additional 87 years to life, in state prison.
Stringer appeals, contending we must reverse the judgment as
to his convictions for aggravated kidnapping to commit
extortion or exact money or property from another person due
to an instructional error and insufficient evidence to
support the verdicts. He claims we must reverse the judgment
as to his convictions for simple kidnapping because simple
kidnapping is a lesser included offense of kidnapping to
facilitate carjacking, of which he was also convicted. He
further argues his trial counsel was constitutionally
ineffective for not requesting a mistake of fact instruction
as to the victims age for the child endangerment charge.
Next, he contends we must reverse the judgment in its
entirety because the trial court erred in denying as untimely
his motion to represent himself in propria persona. Finally,
he claims we must vacate the sentence and remand the matter
to allow the trial court an opportunity to exercise its
recently acquired discretion to strike or dismiss, in the
furtherance of justice, the prior serious felony conviction
for sentencing purposes. (§ § 667, subd. (a), 1385.)
We
conclude the jury instruction for aggravated kidnapping to
commit extortion or exact money or property from another
person— a modified
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version of CALCRIM No. 1202—
contained a prejudicial legal error permitting the jury to
find Stringer guilty of the charged offenses on a legally
invalid basis. However, we conclude there was sufficient
evidence to support the aggravated kidnapping convictions.
Therefore, we reverse the judgment as to the aggravated
kidnapping convictions at issue (counts 1 and 2), and remand
the matter to allow the People to elect whether to retry
Stringer for those counts with proper instructions under a
legally valid theory.
Further, the People concede that simple kidnapping is a
lesser included offense of kidnapping to facilitate
carjacking and agree we must therefore reverse the judgment
as to the simple kidnapping convictions (counts 9 and 10). We
accept the Peoples concessions. In all other respects, we
affirm the judgment. Because we are reversing the judgment as
to the convictions for counts 1-2 and 9-10, the trial court
may, during resentencing, decide whether to exercise its
newly acquired discretion to strike or dismiss the prior
serious felony conviction.
II
BACKGROUND
For
purposes of this section, we state the evidence in the light
most favorable to the judgment. (See People v.
Dawkins (2014) 230 Cal.App.4th 991, 994, 179 Cal.Rptr.3d
101.) Additional facts will be discussed where relevant in
the following section.
[254
Cal.Rptr.3d 683] A
On
December 23, 2015, Stringer approached an adult baseball
coach giving a batting lesson to a 16-year-old student at a
baseball cage and pulled out a firearm. He held the coach and
the student at gunpoint and directed them to the coachs
nearby vehicle. Stringer sat in the backseat and ordered the
coach into the drivers seat and the student into the
passenger seat. The coach implored Stringer to take their
cell phones, their money, and the vehicle, and not to hurt
them. Stringer replied, "Well, when this is over Ill
get your ID and Ill take the cash." Stringer then
threatened he would kill his captives if they did
"anything stupid," and ordered the coach to drive.
Stringer instructed
the coach to drive east towards a remote area of the county and the coach
complied. During the drive, Stringer pulled a hood over his head and put a
bandana over the lower half of his face. He appeared frantic, as though he
were running away from someone, and told the victims he was affiliated
with the Hells Angels gang, had been in a gun fight, and "just needed to
get away." He repeatedly told the victims not to do "anything
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stupid" or he would kill them. He also asked them for
their names and identification cards so he would know where to find them if
they "got him in trouble."
Stringer informed the victims he intended to leave them at a
friends house and take their money, their cell phones, and
the vehicle. However, as they drove further into the remote
region of the county, the coach grew fearful that Stringer
intended to kill them. Therefore, he abruptly veered the
still-moving vehicle into a mound of dirt, lunged into the
backseat, and grabbed Stringers wrist to try to wrest
control of the firearm from him. Stringer fired three shots
during the struggle, but none of them struck the vehicles
occupants. The coach eventually pried the firearm away from
Stringer.
Two
passing vehicles stopped at the scene of the crash, picked up
the victims, and drove them to safety. Stringer approached a
third vehicle, which was occupied by a 79-year-old driver.
Stringer had blood on him and claimed he needed medical
assistance. Therefore, the driver permitted him to enter her
vehicle. After entering the vehicle, however, Stringer
implied he had a firearm, ordered the driver to "get
[him] off this hill," and threatened her not to "do
anything stupid like the last guy." After driving for
some distance, the vehicle reached a busy intersection and
the driver escaped to safety by opening her door and rolling
out of the vehicle. Stringer took the vehicle, which he later
abandoned, and returned to the area where the kidnapping
began.
Three
days later, Stringer entered a convenience store elsewhere in
San Diego County, pointed a shotgun at the store clerk, and
demanded gasoline for his vehicle. The clerk authorized and
pumped $20 worth of gasoline for Stringer, who drove away
without paying. Police arrested Stringer that evening after a
high-speed pursuit and standoff.
B
In
connection with these incidents, Stringer was charged by
amended information with two counts of kidnapping for ransom,
reward, or extortion, or to exact money or property from
another person (§ 209, subd. (a); counts 1 and 2), two counts
of kidnapping to commit robbery (§ 209, subd. (b)(1); counts
3 and 4), three counts of kidnapping to facilitate carjacking
(§ 209.5, subd. (a); counts 5, 6, and 15), three counts of
carjacking (§ 215, subd. (a); counts 7, 8, and 16), three
counts of simple kidnapping (§ 207, subd. (a); counts 9, 10,
[254 Cal.Rptr.3d 684] and 17), two counts of assault with a
firearm (§ 245, subd. (a)(2); counts 11 and 12), one count of
...