Filed 4/9/21 P. v. Jackson CA2/8

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

THE PEOPLE,

Plaintiff and Respondent,

v.

JULIUS CAESAR JACKSON II,

Defendant and Appellant.

 B299685

 (Los Angeles County 

 Super. Ct. No. MA073288)

APPEAL from a judgment of the Superior Court of Los 

Angeles County. Shannon Knight, Judge. Affirmed as modified.

Patricia A. Scott, under appointment by the Court of 

Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief 

Assistant Attorney General, Susan Sullivan Pithey, Assistant 

Attorney General, Steven D. Matthews and Michael J. Wise, 

Deputy Attorneys General, for Plaintiff and Respondent.

* * * * * * * * * *
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A jury found defendant and appellant Julius Caesar 

Jackson II guilty of multiple felonies, including attempted 

murder and kidnapping to commit robbery. Defendant contends 

his conviction for kidnapping to commit robbery is not supported 

by substantial evidence and that the aggravated kidnapping 

statute is so impermissibly vague that it violates due process. 

Defendant also contends the one-year prison prior enhancements 

must be stricken from his sentence in light of the passage of 

Senate Bill 136 (2019–2020 Reg. Sess.) during the pendency of 

this appeal and that the abstract of judgment must be corrected 

to reflect the correct amount of fees imposed by the trial court at 

sentencing. 

We conclude the one-year enhancements must be stricken 

and modify the judgment accordingly. We otherwise reject 

defendant’s contentions and affirm the judgment of conviction in 

all other respects. 

FACTUAL AND PROCEDURAL BACKGROUND

Defendant was charged by information with attempted 

murder (Pen. Code, §§ 187, subd. (a), 664; count 1), kidnapping to 

commit robbery (§ 209, subd. (b)(1); count 2), kidnapping (§ 207, 

subd. (a); count 3), second degree robbery (§ 211; count 4), assault 

with a firearm (§ 245, subd. (a)(2); count 5), possession of a 

firearm by a felon (§ 29800, subd. (a)(1); count 6), unlawful 

possession of ammunition (§ 30305, subd. (a)(1); count 7) and 

attempted second degree robbery (§§ 211, 664; count 8). Firearm 

use allegations were alleged pursuant to sections 12022.5, 

subdivision (a) and 12022.53, subdivisions (b) and (c). It was also 

alleged defendant suffered a prior conviction that qualified as a 

serious or violent felony (§ 667, subd. (a)(1), § 667, subds. (b)–(j), 
3

§ 1170.12) and three additional prior convictions qualified as 

prison priors (§ 667.5, subd. (b)).

The charges arose from events that took place in the early 

morning hours of February 21, 2018. John Carreon was working 

the front desk at a hotel in Lancaster when he saw two 

individuals approach the glass lobby doors around 4:00 a.m. 

They were wearing gloves and hooded sweatshirts, and had

bandanas tied around their faces. They attempted to yank the 

front doors open. Mr. Carreon pressed the button at the desk 

that activated a magnet to prevent the doors from being opened. 

After pulling on the door handles several times, the two fled in a

dark-colored car. Mr. Carreon called the sheriff’s department

and reported the incident. The call was played for the jury. 

Video footage from the hotel security cameras showed one of the 

individuals approaching the hotel doors with a gun, wearing 

camouflage pants and a hoodie. 

Thirty to forty minutes later, Todd Gear was in the 

driveway outside his Lancaster home loading up his truck with 

his work tools. He noticed a dark blue car with its engine 

running had stopped in front of his neighbor’s house in the 

middle of the street instead of at the curb. That seemed odd but 

Mr. Gear continued what he was doing because he needed to get 

to work.

As Mr. Gear started to get into his truck, he felt someone 

grab him from behind and press a gun against his head, under 

his right ear. He heard a male voice demand all his money and 

threaten to kill him if he did not comply. The man’s left arm was 

around Mr. Gear’s neck in something like a chokehold. The man 

reached into Mr. Gear’s pants pocket and took his wallet. 
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The man then dragged Mr. Gear approximately 25 to 

30 feet into the middle of the street and ordered him to get down 

on the ground and stay there. While laying face down in the 

street, Mr. Gear could see the man was wearing camouflage 

pants and light gray or blue running shoes. 

The man got in the passenger side of the waiting car and 

the car sped off. Mr. Gear was shaken but he decided to follow 

the car in his truck. He called 911 as he drove. Soon afterward, 

he saw the car pull over, and the man from the passenger seat 

got out and crouched down near a telephone pole. Mr. Gear 

almost immediately saw a muzzle flash and was sprayed in the 

face with glass from a bullet shattering his windshield. Mr. Gear

quickly turned his truck around to get away. He was still 

speaking with the 911 operator, explaining what was happening. 

He stopped his truck and waited for the sheriff’s deputies who 

arrived on the scene shortly thereafter. The 911 call was played 

for the jury. 

Defendant was on parole at the time of these events and 

wearing a GPS monitoring device on his ankle. Data from that 

device showed defendant was in the vicinity of the Lancaster 

hotel, Mr. Gear’s home, and the location on the street where the 

shooting occurred at the relevant times. 

Defendant testified. He said in February 2018 he was 

homeless and living in his car (a 2008 blue Yukon). He admitted 

he was on parole and wearing a GPS monitoring device on his 

ankle. 

He said that on February 20, 2018, he visited several

different locations of a gambling club called Tap Tap. In the 

early morning hours of February 21, he drove to a local hotel to 

drop off his girlfriend but could not recall exactly which one it 
5

was. He went to another Tap Tap location and while in the 

parking lot, he changed his clothes because they were dirty. He 

admitted he had been wearing camouflage pants and running 

shoes. A guy called Lojack that he knew from clubbing showed 

up with a Hispanic male he did not know. They got into 

defendant’s car with him to do drugs. Defendant started 

watching a movie on his phone and eventually fell asleep in the 

back of the car. He was awakened by the sound of gunshots. He 

had no idea where he was but because he was on parole, he 

wanted to get away from whatever was happening. He jumped 

out of the car and took off running. Defendant eventually called 

his friend Tay to come pick him up. He did not call the police to 

report what had happened. 

The next day, Tay drove defendant to his friend Crystal

Provencio’s house where he kept some of his belongings and often 

took a shower because he was homeless. He noticed his car was 

parked on the street near her home. He said he had no idea how 

it got there. Before leaving, he left some of his dirty clothes at 

Crystal’s including the camouflage pants he had been wearing 

that night.

The following night, defendant was sleeping in his car 

when he was awakened by several deputies knocking on the 

window. The deputies told him his car matched the description of 

a vehicle used in an armed robbery. Defendant said he was 

frightened and did not want to go back to jail and he reached for 

his handgun that was tucked between the seat and the center 

console. The deputies yelled at him to put his hands on the 

steering wheel and he eventually put his hands in the air. He

said he was then pulled from the car and arrested.
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Defendant denied attempting to rob Mr. Carreon and 

denied robbing or shooting at Mr. Gear. Defendant said he was 

asleep in the car at the various locations where the GPS records 

for his ankle monitor showed him to be. 

The jury found defendant guilty on all counts, except 

count 3, the lesser included to count 2. Count 3 was dismissed. 

The jury found true all the firearm use allegations. The court 

found true the prior conviction allegations. 

At the sentencing hearing, defendant made an oral motion 

to strike his prior convictions. In denying the motion, the court 

explained that defendant had “continued to commit new offenses” 

since the earliest of the priors in 1999, including new felonies, 

and that it would not be “in the spirit of justice” to strike any 

prior convictions. In imposing sentence, the court stated that 

given the nature of the crimes, defendant deserved the “longest 

prison term possible.” The court declined to exercise its 

discretion to strike any of the enhancements. 

The court imposed a sentence of 72 years 8 months, plus 

28 years to life. The court awarded defendant 564 total days of 

presentence custody credits and imposed fees and fines as 

required by law.

This appeal followed. 

DISCUSSION

1. The Substantial Evidence Argument (Count 2)

Defendant contends there is insufficient evidence 

supporting his conviction for kidnapping to commit robbery.

In resolving a question of substantial evidence in a criminal 

case, our role “is a limited one.” (People v. Ochoa (1993) 6 Cal.4th 

1199, 1206.) “The proper test for determining a claim of 

insufficiency of evidence in a criminal case is whether, on the 
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entire record, a rational trier of fact could find the defendant 

guilty beyond a reasonable doubt.” (People v. Jones (1990) 

51 Cal.3d 294, 314.) “[W]e must view the evidence in the light 

most favorable to the People and must presume in support of the 

judgment the existence of every fact the trier could reasonably 

deduce from the evidence.” (Ibid.) We do not resolve credibility 

issues or conflicts in the evidence. “[I]f the verdict is supported 

by substantial evidence, we must accord due deference to the 

trier of fact.” (Ibid.) 

Asportation is the essential element of aggravated 

kidnapping. Penal Code section 209, subdivision (b)(2) provides: 

“This subdivision shall only apply if the movement of the victim 

is beyond that merely incidental to the commission of, and 

increases the risk of harm to the victim over and above that 

necessarily present in, the intended underlying offense.” 

Defendant argues there was only evidence the victim was 

moved a short distance to the middle of the street before 

defendant fled the scene. He says the minimal movement of the 

victim was merely a continuous part of the ongoing robbery and 

did not increase the risk of harm to him. 

In deciding whether the movement of the victim was 

merely incidental to the robbery, the jury evaluates the “ ‘ “scope 

and nature” of the movement. [Citation.] This includes the 

actual distance a victim is moved. However, . . . there is no 

minimum number of feet a defendant must move a victim in 

order to satisfy the first prong.’ ” (People v. Martinez (1999) 

20 Cal.4th 225, 233 (Martinez), overruled in part on other 

grounds in People v. Fontenot (2019) 8 Cal.5th 57, 70.) 

The jury must then decide whether the movement 

subjected the victim to an increased risk of harm above and 
8

beyond that inherent in the robbery. (Martinez, supra, 

20 Cal.4th at p. 233.) “ ‘This includes consideration of such 

factors as the decreased likelihood of detection, the danger 

inherent in a victim’s foreseeable attempts to escape, and the 

attacker’s enhanced opportunity to commit additional crimes.

[Citations.] The fact that these dangers do not in fact materialize 

does not, of course, mean that the risk of harm was not increased. 

[Citations.]’ ” (Ibid.) Under the 1997 amendments to Penal Code 

section 209, subdivision (b)(2), the Legislature eliminated the 

former requirement “that the movement of the victim 

‘substantially’ increase the risk of harm to the victim.” (People v. 

Vines (2011) 51 Cal.4th 830, 869, fn. 20.) Under the amended 

statute, it suffices if the harm was increased in some manner, 

and it need not be substantial. (Ibid.)

Our Supreme Court has concluded the increased risk of 

harm to the victim is not limited to bodily harm but includes an 

increased risk of psychological harm. (People v. Tuan Van 

Nguyen (2000) 22 Cal.4th 872, 885 [“the Legislature intended to 

target coerced movement resulting in an increased risk either of 

grave physical injury or of mental terror”]; accord, People v. 

Robertson (2012) 208 Cal.App.4th 965, 984.) 

People v. Corcoran (2006) 143 Cal.App.4th 272 (Corcoran)

involves facts similar to the facts in this case. There, the 

defendant and an accomplice entered a bingo hall and attempted 

a robbery. The accomplices aborted their effort to obtain money 

from the victims after one of the victims escaped. (Id. at p. 279.) 

They herded the remaining victims at gunpoint approximately 

10 feet to a back room and threatened to kill them if they tried to 

leave. Defendant and his accomplice then fled the scene. (Ibid.) 

In affirming the conviction for aggravated kidnapping, the court 
9

said, “the movement of the victims did not serve to facilitate the 

forcible attempted taking of money from the bingo hall.” (Id. at 

p. 280.) Rather, it served purposes unrelated to the attempted 

robbery, “removing the victims from public view, decreasing the 

odds that the attempted robbery of cash from the bingo hall 

would be detected, increasing the risk of harm should any victim 

attempt to flee, and facilitating the robbers’ escape.” (Ibid.) 

Here, defendant forcibly took Mr. Gear’s wallet at gunpoint 

after threatening to kill him. Instead of immediately fleeing with 

the wallet, defendant dragged Mr. Gear approximately 25 to 

30 feet to the middle of the street, using a chokehold and 

continuing to hold a gun to Mr. Gear’s head. Defendant then 

ordered Mr. Gear to get down on the ground and not to move. 

These actions were not necessary to accomplish the robbery of 

Mr. Gear’s wallet. They were meant to increase Mr. Gear’s fear 

as he lay on the ground, vulnerable and uncertain what further 

harm defendant might inflict, and they made it easier for 

defendant to flee the scene. The evidence amply supports 

defendant’s conviction for aggravated kidnapping. 

2. The Void for Vagueness Argument (Count 2)

Defendant contends Penal Code section 209,

subdivision (b)(2), defining the asportation element of aggravated 

kidnapping, is impermissibly vague and violates his due process 

rights. 

Respondent contends defendant forfeited this argument by 

failing to object to, or seek modification of, CALCRIM No. 1203

which instructs the jury on the asportation element of Penal Code 

section 209. The lack of a timely and meaningful objection in the 

trial court ordinarily forfeits the contention for appeal. (People v. 

Marchand (2002) 98 Cal.App.4th 1056, 1060 (Marchand).)
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Defendant concedes he did not object to the jury instruction 

but argues he is not raising a claim of instructional error. He 

says he may raise a facial challenge to the statute without having 

objected below and that we may consider the argument because it 

raises a pure question of law. 

Defendant should have raised his objection in the trial 

court. If he had, the trial court could have considered proposed 

modifications to CALCRIM No. 1203 to address the due process 

concerns defendant now raises for the first time in this court. 

However, we will consider the merits of defendant’s claim

because the facial challenge to the statutory language raises a 

pure question of law. (Marchand, supra, 98 Cal.App.4th at 

p. 1061 [appellate court may consider constitutional issues raised 

for the first time on appeal especially where enforcement of penal 

statutes is involved].) 

“ ‘The constitutional interest implicated in questions of 

statutory vagueness is that no person be deprived of “life, liberty, 

or property without due process of law,” as assured by both the 

federal Constitution (U.S. Const., Amends. V, XIV) and the 

California Constitution (Cal. Const., art. I, § 7).’ ” (People v. 

Morgan (2007) 42 Cal.4th 593, 605 (Morgan).)

There is a strong presumption favoring the 

constitutionality of legislative enactments. Statutes “ ‘ “must be 

upheld unless their unconstitutionality clearly, positively, and 

unmistakably appears. [Citations.] A statute . . . cannot be held 

void for uncertainty if any reasonable and practical construction 

can be given to its language.” ’ [Citation.] Therefore, ‘a party 

must do more than identify some instances in which the 

application of the statute may be uncertain or ambiguous; he 

must demonstrate that “the law is impermissibly vague in all of 
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its applications.” . . . [Citation.]’ ” (Morgan, supra, 42 Cal.4th at 

pp. 605–606.) 

Defendant has not made such a showing here. He says the 

statute is unconstitutionally vague because it requires the trier of 

fact to guess at the type of movement required to accomplish a

“hypothetical ‘mere robbery’ ” and to guess at the “ ‘harm’ or ‘risk 

of harm’ that would have arisen from a hypothetical ‘mere 

robbery.’ ”

Defendant relies on Johnson v. United States (2015) 

576 U.S. 591 and its conclusion that a clause in the Armed 

Career Criminal Act was impermissibly vague. The clause in 

question imposed increased penalties for the federal crime of 

felon in possession of a firearm if the defendant had three or 

more prior convictions for a violent felony and included in the 

definition of “ ‘violent felony’ ” one that “ ‘involves conduct that

presents a serious potential risk of physical injury to another

. . . .’ ” (Johnson, at p. 593.) The Supreme Court found that 

language was too imprecise to give fair notice about what conduct 

fell within the purview of the statute. (Id. at p. 606.) Defendant 

says Penal Code section 209, subdivision (b)(2) is similarly infirm. 

That argument was already rejected in People v. Ledesma (2017) 

14 Cal.App.5th 830, 838 (Ledesma). 

Ledesma explained, “[u]nlike the . . . clause at issue in 

Johnson, California’s asportation requirement compels juries and 

courts to apply a legal standard to real-world facts. As Johnson

itself recognizes, this difference is crucial.” (Ledesma, supra,

14 Cal.App.5th at p. 838.) The court in Ledesma reasoned that 

Johnson distinguished the imprecise clause from other federal 

and state criminal laws that use terms like “substantial risk,”

“grave risk,” and “unreasonable risk,” which are constitutional 
12

because they gauge the riskiness of conduct on a particular 

occasion. (Ledesma, at p. 838.) Ledesma found the Supreme 

Court in Johnson did “ ‘not doubt the constitutionality of [such] 

laws that call for the application of a qualitative standard such as 

“substantial risk” to real-world conduct . . . .’ ” (Ledesma, at 

p. 838.) Ledesma held California’s aggravated kidnapping 

statute applies the qualitative standards of whether the 

movement was merely incidental to the underlying felony and 

whether it substantially increased the risk of harm above that 

inherent in committing the underlying felony. (Id. at pp. 838–

839.) 

We agree with and follow Ledesma. Penal Code 

section 209, subdivision (b)(2) does not require factfinders to rely 

on hypothetical abstractions and speculation. The statutory 

language is not impermissibly vague, and defendant’s due process 

rights were not infringed. 

3. The Sentencing Claims

a. The prison priors 

The court imposed nine 1-year terms commonly referred to 

as “prison priors” pursuant to Penal Code section 667.5, 

subdivision (b) (three 1-year terms on each of counts 1, 2 & 8).

The enhancements were lawfully imposed at the time of 

sentencing in June 2019. 

During the pendency of this appeal, Senate Bill 136 (2019–

2020 Reg. Sess.) was passed, amending Penal Code section 667.5. 

(Stats. 2019, ch. 590, § 1.) The parties agree it applies 

retroactively and that defendant is entitled to the benefit of the 

amendments to section 667.5 which became effective January 1, 

2020. We agree with the parties. (See, e.g., People v. Winn

(2020) 44 Cal.App.5th 859, 872–873 (Winn).) Because defendant’s 
13

prior convictions are not the enumerated sexually violent offenses

now required for imposition of a one-year enhancement, the oneyear terms imposed on counts 1, 2 and 8 must be stricken. 

We may strike the enhancements without remanding for a 

new sentencing hearing. In imposing sentence, the court chose 

upper and consecutive terms and stated its intention was “to 

impose the longest prison term possible for [defendant] believing 

that he is deserving of such a sentence.” Because the trial court 

imposed the maximum sentence, it is not necessary to remand for

a new sentencing hearing. (People v. Buycks (2018) 5 Cal.5th 

857, 896, fn. 15; Winn, supra, 44 Cal.App.5th at p. 873.) 

Remanding under these circumstances would serve no purpose 

but to waste scarce judicial resources. We therefore strike each of 

the nine 1-year enhancements imposed pursuant to Penal Code 

section 667.5, subdivision (b) and affirm the judgment of 

conviction as so modified. 

b. The abstract of judgment 

At sentencing, among other fees and fines, the court 

imposed a $30 criminal conviction assessment (Gov. Code, 

§ 70373) and a $40 court operations assessment (Pen. Code, 

§ 1465.8). The minute order from the sentencing hearing and the 

abstract of judgment reflect a criminal conviction assessment in 

the amount of $210 and a court operations assessment in the 

amount of $280. 

Defendant contends the abstract of judgment must be 

corrected to reflect that the trial court orally imposed only a 

$30 criminal conviction assessment (Gov. Code, § 70373) and a 

$40 court operations assessment (Pen. Code, § 1465.8) and not 

the $210 and $280 assessments memorialized in the abstract. 
14

Defendant says the abstract must be amended to conform to the 

court’s oral pronouncement at the sentencing hearing.

Ordinarily the oral pronouncement of judgment controls. 

(See, e.g., People v. Thompson (2009) 180 Cal.App.4th 974, 978.) 

However, this is not an inflexible rule. Where portions of the 

record are in conflict, “ ‘that part of the record will prevail, which, 

because of its origin and nature or otherwise, is entitled to 

greater credence [citation]. Therefore whether the recitals in the 

clerk’s minutes should prevail as against contrary statements in 

the reporter’s transcript, must depend upon the circumstances of 

each particular case.’ ” (People v. Smith (1983) 33 Cal.3d 596, 

599.) Absent evidence to the contrary, we presume the trial court 

followed the applicable law in imposing sentence. (See, e.g., 

People v. Moran (1970) 1 Cal.3d 755, 762; People v. Mosley (1997) 

53 Cal.App.4th 489, 496; see also Evid. Code, § 664 [“It is 

presumed that official duty has been regularly performed.”].) 

Here, the imposition of the two assessments on each of the 

seven counts on which defendant was convicted was mandated by 

the statutory language. We find no reason in the record to 

presume the trial court was unaware of this well-established law. 

While the court neglected to state on the record that the 

assessments were “as to each count,” the court’s minute order 

accurately so reflects. The abstract of judgment is in accord with 

the court’s minute order and the applicable law and need not be 

amended. (See, e.g., People v. Sencion (2012) 211 Cal.App.4th 

480, 484 [rejecting claim abstract of judgment required 

amendment where trial court failed to orally impose criminal 

conviction assessment and court operations assessment on four 

counts as to which sentence had been stayed; abstract correctly 

memorializing assessments on each count was not in error 
15

despite failure of court to state assessments in oral 

pronouncement of judgment].)

DISPOSITION

Each of the nine 1-year enhancements imposed pursuant to 

Penal Code section 667.5, subdivision (b) is stricken. The 

judgment of conviction, as so modified, is affirmed in all other 

respects. 

The superior court is directed to prepare a new abstract of 

judgment in accordance with this opinion and transmit it

forthwith to the Department of Corrections and Rehabilitation. 

GRIMES, Acting P. J.

WE CONCUR:

STRATTON, J. 

WILEY, J.