People v. Jones CA3

Filed 10/6/14 P. v. Jones CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Yolo) ----

THE PEOPLE, C073559

Plaintiff and Respondent, (Super. Ct. No. CRF124251)

v.

THOMAS JONES IV,

Defendant and Appellant.

A jury found defendant Thomas Jones IV guilty of second degree robbery (Pen. Code, § 211),1 elder abuse (§ 368, subd. (c)(1)), and three counts of unlawfully using tear gas (§ 22810, subd. (g)). After defendant admitted serving three prior prison terms, the trial court sentenced him to an aggregate term of eight years eight months in state prison. On appeal, defendant contends it was error to convict him on three counts of unlawfully using tear gas because, although three people were injured by the tear gas, he

1 Undesignated statutory references are to the Penal Code.

1

only “used” the tear gas once. Defendant also contends the prosecution committed misconduct in its closing argument. We conclude two of defendant’s convictions for unlawful use of tear gas should be stricken, but defendant has forfeited his claim of prosecutorial misconduct. We shall modify the judgment accordingly. I. BACKGROUND On October 27, 2012, 76-year-old Margaret Ray parked in front of a shopping center and got out of her van, holding her keys and her cane in her right hand and her purse over her left shoulder. Defendant rode up to Ray on his bicycle and grabbed the strap of her purse. Defendant yanked on Ray’s purse and the strap slipped down her left arm to her hand; he yanked again and pulled the purse free. Defendant then “hopped his bike up on a [curb]” and rode away. As defendant turned the corner of the building, Ray yelled for help. Three men (Douglas Foster, Andrew Wing, and Shawn McMahon) came out of a nearby “Liberty Safe” store and chased defendant; Ray called 911. Foster saw defendant on his bike but did not see defendant’s face; he ran after defendant. Wing ran out the back of the store, where he caught up with Foster; they continued to chase defendant together. McMahon did not want to leave the store unattended and open so he stayed behind to lock the doors. He then ran after Foster and Wing. At some point, defendant ended up at the bottom of a loading bay beside his bike. When they got to the loading bay, Wing and Foster saw defendant going through his backpack. Foster did not see a purse, Wing saw defendant put a purse inside his backpack, and another person who was there thought he saw defendant had a gun. Defendant then pulled out a “canister.” McMahon had by then gotten to the loading bay, but from a different location than did Foster and Wing. Defendant started to ride his bike out of the loading bay, riding toward Wing and Foster. McMahon asked Foster and Wing if this was the guy who stole Ray’s purse; they