People v. Jones CA2/6

Filed 2/18/15 P. v. Jones CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. No. B253654 (Super. Ct. No. 2009038222) Plaintiff and Respondent, (Ventura County)

v.

SHANE ANDREW JONES,

Defendant and Appellant.

Shane Andrew Jones appeals his conviction, by jury, of two counts of criminal threats and two counts of disturbing the peace. (Pen. Code, §§ 422, 422.7, subd. (a).)1 The jury further found true the enhancement allegation that each offense was a hate crime. (§ 422.75, subd. (b).) The trial court sentenced appellant to a total term in state prison of seven years. Appellant contends there is no substantial evidence the victims experienced "sustained fear" as required by the criminal threats statute and that the trial court erred when it failed to instruct the jury on attempted criminal threat as a lesser included offense of the charged crime. We affirm. Facts Gina Guevara and her teenage son, Robert Jenkins, were shopping at an Oxnard grocery store when they noticed appellant and Carl Kitt, two white supremacist

1 All statutory references are to the Penal Code unless otherwise stated. 1

"skinheads," inside the store. Guevara noticed they were talking loudly and knocking items off the store shelves. She also noticed Kitt's swastika tattoo. Jenkins thought they were drunk. Guevara and Jenkins finished their shopping and got in line to check out. Appellant and Kitt walked past the line. Both Guevara and Jenkins heard one of them say loudly, "fucking nigger."2 Guevara replied, "You better watch your fucking mouth." Appellant and Kitt called Guevara a "nigger lover," and she called them, "peckerwoods." Appellant told Guevara, "Don't talk to my comrade like that." The three continued to exchange words. Eventually, Kitt "came up to [Guevara's] face and he told [Guevara] that he just got out of jail for stabbing somebody, and that he would stab [Guevara] too." After making the threat, Kitt and appellant walked to another register while singing a racist song containing the word "nigger." Guevara and Jenkins paid for their groceries and left the store. Meanwhile, the store's assistant manager told appellant and Kitt to leave because they were being disruptive and aggressive. Both men were angry. They called the assistant manager a "fucking Mexican" and appellant pushed a shopping cart at her. They were yelling as they left the store. Guevara and Jenkins left by the same door about 20 seconds later. Appellant confronted Guevara almost immediately, walking quickly toward her and saying, "Bitch, what are you going to do?" Both Guevara and Jenkins were afraid he was going to hit Guevara. At that point, a stranger intervened. He pushed appellant against the back of a parked truck and told him, "You don't speak to women like that." The police arrived shortly after that. Kitt testified that he was released from prison three days before this incident occurred. He had been in prison for an assault involving the stabbing of a Black man. Kitt pleaded guilty to criminal threats with a hate crime enhancement as a result of this incident.