People v. Stringer

          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 ...