People v. Jones CA3

Filed 2/14/23 P. v. Jones CA3 Opinion following transfer from Supreme Court NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. No. STK-CR-FE- 1995-0005970 & SC058201A) v. OPINION ON TRANSFER TIMOTHY RAY JONES,

Defendant and Appellant.

Defendant Timothy Ray Jones appeals the denial of his petition for resentencing under what is now Penal Code section 1172.61 because the trial court reviewed the record and did not first appoint counsel. In our original opinion filed June 9, 2021, we affirmed the order based on a special circumstance finding.

1 Undesignated statutory references are to the Penal Code. Effective June 30, 2022, former section 1170.95 was renumbered as section 1172.6 without substantive change. (Stats. 2022, ch. 58, § 10.) We will refer to the section by its new numbering.

1

Defendant petitioned our Supreme Court for review; that court has now directed us to reconsider the matter in light of People v. Strong (2022) 13 Cal.5th 698 (Strong). Having done so, we again affirm because the special circumstance finding here meant the jury found defendant had the intent to kill. 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)(A)). 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. For the special circumstance allegation, the jury was given CALJIC No. 8.80, which stated that, “If you find beyond a reasonable doubt that the defendant was the actual killer or an aider or abettor but you are unable to decide which, then you must also find beyond a reasonable doubt that the defendant with intent to kill aided and abetted an actor in the