Filed 4/28/23 P. v. Jones CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D081147
Plaintiff and Respondent,
v. (Super. Ct. No. CR143050)
DARNELL KENNETH JONES,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County,
Kenneth K. So, Judge. Affirmed.
Darnell Kenneth Jones, in pro. per.; and Laura P. Gordon, under
appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
In 1994, a jury convicted Darnell Kenneth Jones of first degree murder
(Pen. Code,1 § 187, subd. (a)(1)) and found true alleged special circumstances
of murder during the commission of robbery and burglary (§ 190.2,
1 All further statutory references are to the Penal Code unless otherwise
specified.
subd. (a)(17)). The jury also found Jones guilty of robbery (§ 211), burglary
(§ 459), and vehicle theft (Veh. Code, § 10851, subd. (a)). The jury found that
Jones personally used a firearm. (§ 12022.5, subd. (a).)
Jones was sentenced to life without parole (LWOP) plus four years for
the firearm use.
In 2020, Jones filed the first of three petitions for resentencing under
section 1170.95 (now renumbered section 1172.6).
The trial court appointed counsel and held a hearing. After reviewing
the record of conviction, the court concluded Jones was the person who fired
the shot which killed the victim. The court found Jones had failed to make a
prima facie showing of eligibility for relief under section 1172.6 and therefore
denied the petition.
Jones filed a timely notice of appeal.
Appellate counsel has filed a brief pursuant to People v. Wende (1979)
25 Cal.3d 436 (Wende) indicating counsel has not been able to identify any
arguable issues for reversal on appeal. Counsel asks the court to review the
record for error as required by the Wende procedure.2 We offered Jones the
opportunity to file his own brief on appeal. Jones has responded by filing a
supplemental brief, which we will discuss later in this opinion.
2 Our Supreme Court has now determined that postjudgment appeals
from the denial of a petition for resentencing under section 1172.6 do not
require Wende review. (People v. Delgadillo (2022) 14 Cal.5th 216.) The
court authorized the courts of appeal to conduct review in the court’s
discretion. Given the timing of this appeal, we will exercise our discretion
and review the appeal in the same manner we would in a Wende appeal.
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STATEMENT OF FACTS
Appellate counsel has provided a summary of the facts of the offense as
contained in the probation officer’s report. We will incorporate that
statement here for background information.
“On May 7, 1992, Alton Pierce and Jennifer Arce visited jewelry stores
in La Jolla, California and, while driving home to Los Angeles, discussed a
plan to return and rob them.
“While in Los Angeles, Pierce recruited six men, including then 20-year
old Jones,[3] to accompany him and Arce to San Diego to commit armed
robberies of Jessop’s Jewelers and C.J. Charles Jewelers.
“On May 9, 1992, the eight participants drove to San Diego, and Arce
registered for two rooms at the Super 8 Motel on Mission Bay Drive, using
the name Tricia Tomas.
“At some point prior to the robbery, and at Pierce’s direction, the group
of men stole two cars to use in the robberies.
“On the afternoon of May 10, 1992, the group of eight drove to La Jolla.
Arce was driving Pierce’s vehicle, with Pierce in the back seat, while Jones
and two others were in one stolen car, and the other three men were in the
other. Each group had a hammer to break the jewelry case glass. Jones was
given a handgun to carry in the Jessop’s Jewelers robbery, while one of the
men in the group was given a shotgun to carry in the C.J. Charles Jewelers
robbery.
“When Jones and the other men entered Jessop’s Jewelers, they were
yelling, the gun was pointed at [an employee] and customer Brian S., and a
shot was fired. The shot hit Brian and he later died from the gunshot wound.
3 “The record indicates Jones was born on November 28, 1971.”
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“Jones and the other two stole jewelry from the store and met up with
Pierce, Arce, and the other group. Pierce took all of the jewelry and gave
each man between $1,000 and $1,200 for their participation. He took the
handgun back from Jones and disposed of it.
“Jones was arrested in Nashville, Tennessee and admitted to the
arresting officer that he had shot Brian during the robbery of Jessop’s
Jewelers. Jones had two prior misdemeanor convictions at the time of this
offense, one for burglary and the other for vehicle theft.
“In his interview with the probation officer, Jones expressed remorse,
sympathy, and empathy for Brian’s death. He said he had also lost people
close to him and had never imagined himself being the cause of another’s
grief.
“Jones said that the gun fired accidentally, and he did not mean to
shoot anyone nor did he realize in the moment that he had hit Brian. He
explained that his vision was distorted by the masks he and the others were
told to wear, and when he saw Brian and the others on the floor, he assumed
it was because they had been ordered to get down. Jones did not know that
Brian had been shot until the day after the robbery and learned he had died
several days later.”
DISCUSSION
As we have noted, appellate counsel has filed a Wende brief and asks
the court to independently review the record for error. To assist the court in
its review of the record, and in compliance with Anders v. California (1967)
386 U.S. 738 (Anders), counsel has identified three possible issues that were
considered in evaluating the potential merits of this appeal.
1. Whether a conviction for first degree murder is appropriate when
the record contains no evidence of an intent to kill.
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2. Whether a LWOP sentence is appropriate when the record
contains no evidence of an intent to kill.
3. Whether an LWOP sentence is appropriate when applied to a
defendant who was 20 years old at the time of his crime.
Jones has submitted a supplemental brief in which he argues he should
be eligible for relief under section 1172.6. Jones claims his form petition that
he filed made prima facie showing of eligibility for resentencing. Jones does
not deny that he fired the shot that killed the victim in this case. Jones
contends he did not intend to kill the victim; the jury instructions were
wrong; and the fact he is the actual killer should not make him ineligible for
relief under the statute.
The supplemental brief does not raise any arguable issues for reversal
of the order denying this statutory petition for resentencing.
We have independently reviewed the record in this case consistent with
a review under Wende and Anders. We have not discovered any arguable
issues for reversal on appeal. Competent counsel has represented Jones on
this appeal.
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DISPOSITION
The order denying Jones’s request for resentencing under
section 1172.6 is affirmed.
HUFFMAN, J.
WE CONCUR:
McCONNELL, P. J.
BUCHANAN, J.
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