California Court of Appeals, Fourth District, First Division
APPEAL
from a judgment of the Superior Court of San Diego County No.
SCD266418 Frederick Maguire, Judge. Affirmed in part,
reversed in part, and remanded with directions.
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.
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 (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
victim's 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 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
People's 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.) Additional
facts will be discussed where relevant in the following
section.
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 coach's
nearby vehicle. Stringer sat in the backseat and ordered the
coach into the driver's 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
I'll get your ID and I'll 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 Hell's Angels gang, had been in a gun
fight, and "just needed to get away." He repeatedly
told the victims not to do "anything 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
friend's 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 Stringer's wrist to try to
wrest control of the firearm from him. Stringer fired three
shots during the struggle, but none of them struck the
vehicle's 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, and 17), 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).
The
amended information alleged Stringer used a firearm in the
commission of counts 1-10 and 18 (§ 12022.53, subd.
(b)), discharged a firearm in the commission of counts 1-10
(§ 12022.53, subd. (c)), and used a firearm in the
commission of counts 11-13 (§ 12022.5, subd. (a)). It
alleged he committed counts 1 and 2 in a manner that exposed
the victims (the baseball coach and student) to a substantial
likelihood of death (§ 209, subd. (a)), and committed
counts 15-17 against a victim (the 79-year-old driver) who
was 65 years of age or older (§ 667.9, subd. (b)).
Further, it alleged Stringer was previously convicted of a
serious felony (§§ 667, subd. (a)(1), 668, 1192.7,
subd. (c)) and two strikes (§§ 667, subd. (b)-(i),
668, 1170.12).
The
jury found Stringer guilty of counts 1-2, 5-6, 9-15, and
18-19, found Stringer not guilty of counts 3-4, and did not
return verdicts on the remaining counts, which were lesser
included offenses. Stringer admitted the truth of the prior
convictions and the jury returned true findings on all other
enhancement allegations attached to the offenses for which he
was found guilty, except the allegations that he discharged a
firearm in the commission of counts 1-2, 5-6, and 9-10. The
court sentenced Stringer to life in prison without the
possibility of parole, plus an additional 87 years to life.
III
DISCUSSION
A
For the
charged offenses of aggravated kidnapping in violation of
subdivision (a) of section 209 (counts 1 and 2), the trial
court instructed the jury with a modified version of CALCRIM
No. 1202. Stringer contends the instruction misstated the law
governing aggravated kidnapping. For the following reasons,
we agree.[2]
Section
209, subdivision (a) describes four types of aggravated
kidnapping: (1) for ransom; (2) for reward; (3) to commit
extortion; and (4) to exact from another person any money or
valuable thing. For the first three types, the kidnap victim
may be the same person as the person who is being extorted or
from whom the ransom or reward is sought. (People v.
Kozlowski (2002) 96 Cal.App.4th 853, 870-871
(Kozlowski); People v. Ibrahim (1993) 19
Cal.App.4th 1692, 1696-1698 (Ibrahim).) However, for
the fourth type, there must be both a primary victim (the
kidnap ...