People v. Jones CA3

Filed 6/9/21 P. v. Jones CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (San Joaquin) ----

THE PEOPLE, C089456

Plaintiff and Respondent, (Super. Ct. Nos. STK-CR-FE- 1995-0005970 & SC058201A) v.

TIMOTHY RAY JONES,

Defendant and Appellant.

Defendant Timothy Ray Jones appeals the denial of his petition for resentencing under Penal Code section 1170.951 because the trial court reviewed the record and did not first appoint counsel. We conclude any error during the resentencing process was harmless beyond a reasonable doubt and affirm the trial court’s denial of defendant’s petition.

1 Undesignated statutory references are to the Penal Code.

1

FACTUAL BACKGROUND We take these facts from our opinion in defendant’s direct appeal. (People v. Jones (Oct. 2, 1998, C023350) [nonpub. opn.] (Jones).)2 In November 1992, a young man was shot and killed outside of a convenience store; about $700 was taken from his wallet. Police found at the scene beer bottles with fingerprints from defendant and codefendant Anthony Dean. In pretrial interviews, at Dean’s earlier trial (where Dean was convicted of murder), and at defendant’s trial, several witnesses said they either saw defendant and Dean at the scene of the crime or defendant and Dean mentioned the shooting to them. After trial in 1996, the jury found defendant guilty of murder (§ 187) and second degree robbery (§ 211), also finding true the robbery-murder special-circumstance allegation (§ 190.2, subd. (a)(17)(i)). It did not find true he personally used a firearm (§ 1022.5, subd. (a)) but did find true he was armed in the commission of the crimes (§ 12022, subd. (a)). Defendant was sentenced to life without the possibility of parole. Defendant appealed alleging, among other issues, insufficient evidence supporting the requisite intent for the special circumstance finding because the jury did not find true the personal use of a firearm allegation. Defendant did not discuss the relevant evidence, instead reserving argument to address respondent’s position. We “explicitly” declined to reach this issue because defendant waived it by failing to discuss the relevant evidence. (Jones, supra, C023350 [p. 17].) Still, we noted the testimony of two witnesses was “more than sufficient to support the special circumstance because it demonstrates a plan to rob the victim at gunpoint; that the testimony of the defense witnesses may have made it impossible for the jury to resolve one way or the other beyond a reasonable doubt who