People v. Jones

79 Cal.App.5th 37

294 Cal.Rptr.3d 355

The PEOPLE, Plaintiff and Respondent,

v.Leonard Charles JONES, Defendant and Appellant.

A160328

Court of Appeal, First District, Division 4, California.

Filed May 24, 2022

Certified for Partial Publication.^*

Law Offices of Shannon Chase and Shannon Chase, Pleasanton, by appointment of the Court of Appeal Under the First District Appellate Project's Independent Case System, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Jeffrey M. Laurence, Senior Assistant Attorney General, Bruce L. Ortega and René A. Chacón, Deputy Attorneys General, for Plaintiff and Respondent.

STREETER, Acting P. J.

A jury convicted defendant Leonard Jones of attempted murder and related charges and enhancements. The trial court sentenced him to 59 years in prison. On appeal, Jones argues (1) a jury instruction on eyewitness identification evidence rendered his trial fundamentally unfair in violation of due process, (2) the court erred by denying his Pitchess¹ motion to discover information in police personnel files, and (3) the case should be remanded for resentencing. The Attorney General agrees a remand for resentencing is required in light of legislation that took effect after Jones's sentencing hearing. In the unpublished portion of this opinion, we reject Jones's challenges to his convictions. But as we explain in the published portion of the opinion, we agree with the parties as to the impact of the new legislation. We therefore will remand for resentencing.

I. BACKGROUND

The charges against Jones arose from a shooting that took place in the parking lot of a San Leandro apartment complex on the evening of June 16, 2013. Jones's defense at trial was that he was misidentified and was not the shooter.

A. The Prosecution's Case

1. Background: Events Prior to the Shooting

In 2013, 16-year-old P.T. lived in the complex with her aunt. Jones's sister, Lyndetta Jones, also lived in the complex, and Jones sometimes visited the property.

P.T. testified she had two interactions with Jones at the apartment complex prior to the date of the shooting. On the first occasion, Jones approached P.T. in the parking lot and asked for her name. Because P.T. did not know Jones and was not interested in him, she gave him a fake name, "Nancy."

On the second occasion, which was about a week before the shooting, Jones tried to ask P.T. out. She told him to leave her alone and that she had a boyfriend. Jones persisted, and he and P.T. began cursing at each other. Jones then pulled out a gun, pointed it at P.T., and told her she should not curse at him or she would see what happens.

2. The Shooting

On June 16, 2013, around 9:00 p.m., 22-year-old Gbessaykai Massaquoi was with P.T. in his two-door Honda Civic hatchback at the San Leandro Marina. Massaquoi was smoking marijuana. P.T. and Massaquoi were friends.

Massaquoi then drove to Hayward and picked up three other friends, 22-year-old Najeem Mirzada, 21-year-old Sandip Prasad, and 18-year-old Cedric Sallie. P.T. sat in the front passenger seat, and Massaquoi's three other friends sat in back.

Massaquoi drove the group back to San Leandro to drop P.T. off at her home. He dropped her off at a liquor store near the apartment complex, rather than at the complex. Massaquoi testified that he dropped P.T. off there only because it was convenient and because P.T. told him to. P.T. testified Massaquoi dropped her off there so that her aunt would not see her hanging out with an adult man.

After P.T. got out of the car, Massaquoi saw a man walking quickly behind her while holding a paper bag that appeared to contain a bottled drink. Massaquoi described this male as a fit Black man, five feet nine inches to five feet 10 inches tall, with short hair, and wearing a white shirt and white pants. Cedric Sallie described the man as Black, six feet tall with short hair, and no facial hair, and weighing 160 to 170 pounds. Sandip Prasad, who had moved to the front seat when P.T. got out of the car, described the African-American man following P.T. as 25 to 30 years old, six feet tall and 160 pounds, with short curly hair, and wearing a white tank top with dark jeans. Najeem Mirzada described the fit man following P.T. as Black, about six feet to six feet two inches tall, with short hair and in his mid-20's, and wearing a white shirt and light-colored baggie jeans.

P.T. testified Jones was the man following her. Jones came up from behind her and got close to her side, about a foot away, and tried talking to her. However, given what had happened between them previously, P.T. was nervous, scared, walking fast, and not paying attention to Jones's words. P.T. had testified at the preliminary hearing that Jones walked behind her.

Massaquoi never saw P.T. turn around and look at the man. Massaquoi testified that the man started out about 14 feet behind P.T., and eventually closed the gap to about six to seven feet.

Because Massaquoi believed the man was following P.T., he made a U-turn and drove into the apartment complex parking lot, stopping next to P.T. and asking her if she was okay. Massaquoi testified that P.T. looked scared and did not reply as she kept walking. P.T. testified that she replied " ‘yes’ " to Massaquoi's request that she call him after she got to her apartment.

After P.T. walked out of view, the man who had been following her pulled out a black gun, approached the Honda, and asked if they had a problem. Massaquoi's window was halfway down, and he responded he was " ‘just trying to make sure if she's okay.’ " The man replied, " ‘Oh, yeah I know Nancy,’ " and told them to "bounce" or leave, in an angry tone. Massaquoi put the car in reverse and heard five to six gunshots. A bullet shattered the car window, and Massaquoi was hit in the ankle and forearm. Massaquoi was able to drive to a gas station, where he and Prasad switched seats. Prasad then drove to a hospital.

A resident of the complex, Olayo Maradiaga, arrived home and was outside his apartment when he saw a Black man arguing with people in a car. The man fired three or four shots at the car and ran away. Maradiaga told officers he would not be able to identify the shooter because he had been very far away (about 60 meters) and it was already nighttime.

Heather Tackett, the property manager for the apartment complex and a resident there, was in her apartment on the evening of June 16, 2013, and heard gunshots outside. She called 911 and looked out through the blinds on her living room window. She saw someone running through the parking lot. Tackett recognized the man as the brother of resident Lyndetta Jones (although she did not know his name). Tackett had interacted with him on about five occasions. Tackett told the 911 operator that she saw a man who " ‘looked like’ " the brother of one of her residents.

3. The Lineups and Witness Identifications^**

B. The Defense Case^***

C. Procedural Background: The Charges, Verdicts, and Sentence

An information filed in October 2014 charged Jones with four counts of attempted murder (counts 1–4; Pen. Code,² §§ 187, subd. (a), 664 ), i.e., one count pertaining to each of the four people in the car at the time of the shooting—Massaquoi, Sallie, Prasad, and Mirzada. The information also charged Jones with four counts of assault with a semiautomatic firearm (counts 5–8; § 245, subd. (b)) (as to the same four people), one count of shooting at an occupied vehicle (count 9; § 246), and one count of being a felon in possession of a firearm (count 10; § 29800, subd. (a)(1)). The information alleged as to the attempted murder counts that Jones personally used and intentionally discharged a firearm (§§ 12022.5, subd. (a), 12022.53, subds. (b), (c)), and as to the assault charges that he personally used a firearm (§ 12022.5, subd. (a)). The information alleged Jones had a prior serious felony conviction (§ 667, subd. (a)(1))—a 2004 conviction for carjacking—that qualified as a "strike" (§§ 667, subd. (e)(1), 1170.12, subd. (c)(1)), and for which he had served a prison term (§ 667.5, former subd. (b)).

In February 2016, the jury found Jones guilty of the attempted murder of Massaquoi as charged in count 1 and found true the associated firearm enhancements. The jury found Jones not guilty of the attempted murders of Sallie, Prasad, and Mirzada as charged in counts 2 through 4. The jury found Jones guilty of all four counts of assault with a semiautomatic firearm (counts 5 through 8) and the firearm enhancements for those counts, as well as the count 9 charge of shooting at an occupied vehicle and the count 10 charge of being a felon in possession of a firearm. Jones waived his right to a jury trial on the prior conviction allegation, and the court found the allegation true. The record does not reflect that the court addressed the prior prison term enhancement allegation.

On December 16, 2019, nearly four years after the jury verdict, Jones, now represented by a different attorney, filed a motion for new trial. On February 28, 2020, the court denied the motion for new trial and sentenced Jones to 56 years in prison, with credit for 2,398 days of actual time served, plus additional conduct credit. Jones appealed.

In April 2020, the court filed amended minutes and an amended abstract of judgment revising its sentencing calculations and reflecting that it had sentenced Jones to 59 years in prison, determined as follows: On the count 1 attempted murder conviction ( §§ 187, subd. (a), 664 ), the court imposed the upper term of nine years, doubled to 18 years because of Jones's prior strike ( §§ 667, subd. (e)(1), 1170.12, subd. (c)(1) ). As to its selection of the upper term for count 1, the court had identified several aggravating factors at the February 2020 sentencing hearing: (1) the crime involved great violence and the threat of great bodily harm; (2) Jones used a weapon during the commission of the crime; (3) the victim (Massaquoi) was particularly...