Filed 11/7/19
CERTIFIED FOR PUBLICATION
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D073877
Plaintiff and Respondent,
v. (Super. Ct. No. SCD266418)
IRA ALEXANDER STRINGER,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Frederick
Maguire, Judge. Affirmed in part, reversed in part, and remanded with directions.
Jerome P. Wallingford, under appointment by the Court of Appeal, for Defendant
and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Allison V.
Acosta, Deputy Attorneys General for Plaintiff and Respondent. I
INTRODUCTION
A jury convicted Ira Alexander Stringer of two counts of aggravated kidnapping to
commit extortion or exact money or property from another person (Penal Code, § 209,
subd. (a); counts 1 and 2),1 three counts of aggravated kidnapping to facilitate carjacking
(§ 209.5; counts 5, 6, and 15), two counts of simple kidnapping (§ 207, subd. (a); counts
9 and 10), two counts of assault with a firearm (§ 245, subd. (a)(2); counts 11 and 12),
one count of child endangerment (§ 273a, subd. (a); count 13), two counts of felony
possession of a firearm (§ 29800, subd. (a)(1); counts 14 and 19), and one count of
robbery (§ 211; count 18). Stringer admitted a prior serious felony conviction (§§ 667,
subd. (a)(1), 668, 1192.7, subd. (c)) and two prior strikes under the three strikes law
(§§ 667, subd. (b), 668, 1170.12), and the jury returned true findings on several firearm
enhancements. The trial court sentenced Stringer to an aggregate term of life without the
possibility of parole, plus an additional 87 years to life, in state prison.
Stringer appeals, contending we must reverse the judgment as to his convictions
for aggravated kidnapping to commit extortion or exact money or property from another
person due to an instructional error and insufficient evidence to support the verdicts. He
claims we must reverse the judgment as to his convictions for simple kidnapping because
simple kidnapping is a lesser included offense of kidnapping to facilitate carjacking, of
which he was also convicted. He further argues his trial counsel was constitutionally
1 All further statutory references are to the Penal Code. 2 ineffective for not requesting a mistake of fact instruction as to the victim's age for the
child endangerment charge. Next, he contends we must reverse the judgment in its
entirety because the trial court erred in denying as untimely his motion to represent
himself in propria persona. Finally, he claims we must vacate the sentence and remand
the matter to allow the trial court an opportunity to exercise its recently acquired
discretion to strike or dismiss, in the furtherance of justice, the prior serious felony
conviction for sentencing purposes. (§§ 667, subd. (a), 1385.)
We conclude the jury instruction for aggravated kidnapping to commit extortion or
exact money or property from another person—a modified version of CALCRIM No.
1202—contained a prejudicial legal error permitting the jury to find Stringer guilty of the
charged offenses on a legally invalid basis. However, we conclude there was sufficient
evidence to support the aggravated kidnapping convictions. Therefore, we reverse the
judgment as to the aggravated kidnapping convictions at issue (counts 1 and 2), and
remand the matter to allow the People to elect whether to retry Stringer for those counts
with proper instructions under a legally valid theory.
Further, the People concede that simple kidnapping is a lesser included offense of
kidnapping to facilitate carjacking and agree we must therefore reverse the judgment as
to the simple kidnapping convictions (counts 9 and 10). We accept the People's
concessions. In all other respects, we affirm the judgment. Because we are reversing the
judgment as to the convictions for counts 1–2 and 9–10, the trial court may, during
resentencing, decide whether to exercise its newly acquired discretion to strike or dismiss
the prior serious felony conviction.
3 II
BACKGROUND
For purposes of this section, we state the evidence in the light most favorable to
the judgment. (See People v. Dawkins (2014) 230 Cal.App.4th 991, 994.) Additional
facts will be discussed where relevant in the following section.
A
On December 23, 2015, Stringer approached an adult baseball coach giving a
batting lesson to a 16-year-old student at a baseball cage and pulled out a firearm. He
held the coach and the student at gunpoint and directed them to the coach's nearby
vehicle. Stringer sat in the backseat and ordered the coach into the driver's seat and the
student into the passenger seat. The coach implored Stringer to take their cell phones,
their money, and the vehicle, and not to hurt them. Stringer replied, "Well, when this is
over I'll get your ID and I'll take the cash." Stringer then threatened he would kill his
captives if they did "anything stupid," and ordered the coach to drive.
Stringer instructed the coach to drive east towards a remote area of the county and
the coach complied. During the drive, Stringer pulled a hood over his head and put a
bandana over the lower half of his face. He appeared frantic, as though he were running
away from someone, and told the victims he was affiliated with the Hell's Angels gang,
had been in a gun fight, and "just needed to get away." He repeatedly told the victims not
to do "anything stupid" or he would kill them. He also asked them for their names and
identification cards so he would know where to find them if they "got him in trouble."
4 Stringer informed the victims he intended to leave them at a friend's house and
take their money, their cell phones, and the vehicle. However, as they drove further into
the remote region of the county, the coach grew fearful that Stringer intended to kill
them. Therefore, he abruptly veered the still-moving vehicle into a mound of dirt, lunged
into the backseat, and grabbed Stringer's wrist to try to wrest control of the firearm from
him. Stringer fired three shots during the struggle, but none of them struck the vehicle's
occupants. The coach eventually pried the firearm away from Stringer.
Two passing vehicles stopped at the scene of the crash, picked up the victims, and
drove them to safety. Stringer approached a third vehicle, which was occupied by a 79-
year-old driver. Stringer had blood on him and claimed he needed medical assistance.
Therefore, the driver permitted him to enter her vehicle. After entering the vehicle,
however, Stringer implied he had a firearm, ordered the driver to "get [him] off this hill,"
and threatened her not to "do anything stupid like the last guy." After driving for some
distance, the vehicle reached a busy intersection and the driver escaped to safety by
opening her door and rolling out of the vehicle. Stringer took the vehicle, which he later
abandoned, and returned to the area where the kidnapping began.
Three days later, Stringer entered a convenience store elsewhere in San Diego
County, pointed a shotgun at the store clerk, and demanded gasoline for his vehicle. The
clerk authorized and pumped $20 worth of gasoline for Stringer, who drove away without
paying. Police arrested Stringer that evening after a high-speed pursuit and standoff.
5 B
In connection with these incidents, Stringer was charged by amended information
with two counts of kidnapping for ransom, reward, or extortion, or to exact money or
property from another person (§ 209, subd. (a); counts 1 and 2), two counts of kidnapping
to commit robbery (§ 209, subd. (b)(1); counts 3 and 4), three counts of kidnapping to
facilitate carjacking (§ 209.5, subd. (a); counts 5, 6, and 15), three counts of carjacking
(§ 215, subd. (a); counts 7, 8, and 16), three counts of simple kidnapping (§ 207,
subd. (a); counts 9, 10, and 17), two counts of assault with a firearm (§ 245, subd. (a)(2);
counts 11 and 12), one count of child endangerment (§ 273a, subd. (a); count 13), two
counts of felony possession of a firearm (§ 29800, subd. (a)(1); counts 14 and 19), and
one count of robbery (§ 211; count 18).
The amended information alleged Stringer used a firearm in the commission of
counts 1–10 and 18 (§ 12022.53, subd. (b)), discharged a firearm in the commission of
counts 1–10 (§ 12022.53, subd. (c)), and used a firearm in the commission of counts 11–
13 (§ 12022.5, subd. (a)). It alleged he committed counts 1 and 2 in a manner that
exposed the victims (the baseball coach and student) to a substantial likelihood of death
(§ 209, subd. (a)), and committed counts 15–17 against a victim (the 79-year-old driver)
who was 65 years of age or older (§ 667.9, subd. (b)). Further, it alleged Stringer was
previously convicted of a serious felony (§§ 667, subd. (a)(1), 668, 1192.7, subd. (c)) and
two strikes (§§ 667, subd. (b)–(i), 668, 1170.12).
The jury found Stringer guilty of counts 1–2, 5–6, 9–15, and 18–19, found
Stringer not guilty of counts 3–4, and did not return verdicts on the remaining counts,
6 which were lesser included offenses. Stringer admitted the truth of the prior convictions
and the jury returned true findings on all other enhancement allegations attached to the
offenses for which he was found guilty, except the allegations that he discharged a
firearm in the commission of counts 1–2, 5–6, and 9–10. The court sentenced Stringer to
life in prison without the possibility of parole, plus an additional 87 years to life.
III
DISCUSSION
For the charged offenses of aggravated kidnapping in violation of subdivision (a)
of section 209 (counts 1 and 2), the trial court instructed the jury with a modified version
of CALCRIM No. 1202. Stringer contends the instruction misstated the law governing
aggravated kidnapping. For the following reasons, we agree.2
Section 209, subdivision (a) describes four types of aggravated kidnapping:
(1) for ransom; (2) for reward; (3) to commit extortion; and (4) to exact from another
person any money or valuable thing. For the first three types, the kidnap victim may be
the same person as the person who is being extorted or from whom the ransom or reward
is sought. (People v. Kozlowski (2002) 96 Cal.App.4th 853, 870–871 (Kozlowski);
2 The People contend Stringer forfeited his instructional error argument because his trial counsel did not object to the instruction. However, a defendant need not assert an objection when the error affects the defendant's "substantial rights." (§ 1259.) In this regard, " 'the cases equate "substantial rights" with reversible error[.]' " (People v. Abbaszadeh (2003) 106 Cal.App.4th 642, 649.) We address Stringer's challenge on the merits to determine whether there was an impairment of his substantial rights. (People v. Anderson (2007) 152 Cal.App.4th 919, 927.) 7 People v. Ibrahim (1993) 19 Cal.App.4th 1692, 1696–1698 (Ibrahim).) However, for the
fourth type, there must be both a primary victim (the kidnap victim) and a secondary
victim from whom the defendant seeks to exact money or something valuable.
(Kozlowski, at pp. 870–871; Ibrahim, at pp. 1696–1698.)
Here, the prosecutor prepared and the trial court adopted a modified version of
CALCRIM No. 1202 for counts 1 and 2, which provided in pertinent part as follows:
"The defendant is charged in Counts 1 and 2 with kidnapping for the purpose of extortion that resulted in exposure to a substantial likelihood of death, in violation of Penal Code section 209(a).
"To prove that the defendant is guilty of this crime, the People must prove that:
"1. The defendant kidnapped, abducted, or seized, confined, or carried away another person;
"OR
"2. The defendant held or detained the other person;
"AND
"3. The defendant did so to commit extortion or to get money or something valuable;
"4. The other person did not consent to being kidnapped, or abducted, seized, confined, or carried away." (Italics added.)
Stringer claims the error can be found in paragraph 3 of the instruction, delineated
in italics in the excerpt above. He contends the paragraph presented two theories of
liability—the third type (kidnapping for extortion) and the fourth type (kidnapping to
exact from another person money or a valuable thing). He argues the portion of the
paragraph pertaining to the fourth type ("to get money or something valuable") omitted 8 necessary language indicating the kidnapping must be perpetrated to exact money or
property from another person. Therefore, under the instruction, the jury could
impermissibly find him guilty if he sought to exact money or property from the kidnap
victims.
The People dispute that the instruction presented alternative theories by which the
jury could find Stringer guilty of aggravated kidnapping. They claim it charged the jury
only to decide whether Stringer committed the third type of aggravated kidnapping (for
extortion), not the fourth type (to exact from another person any money or valuable
thing). They further argue the instruction's reference to "money or something valuable"
merely clarified "types of personal property that could be extorted" under an extortion-
based theory.
We agree with Stringer's interpretation of the instruction. Under the plain
language of the instruction, the jury could have convicted Stringer if he perpetrated the
kidnappings "to commit extortion or to get money or something valuable." The
instruction's "use of the word 'or' . . . indicates an intention to use it disjunctively so as to
designate alternative or separate categories." (White v. County of Sacramento (1982) 31
Cal.3d 676, 680.) Further, other portions of the instruction already defined the term
extortion, undercutting the People's claim that the challenged language explained or
clarified extortion for the jury. Finally, the instruction tracked CALCRIM No. 1202,
which explicitly differentiates between the four types of aggravated kidnapping under
section 209, subdivision (a). The most sensible interpretation of the modified instruction
9 used here is that it, like the pattern instruction on which it was based, set forth alternative
types of aggravated kidnapping giving rise to a conviction.3
We further conclude the portion of the instruction pertaining to the fourth type of
aggravated kidnapping was flawed. As Stringer correctly notes, subdivision (a) of
section 209 states an accused may be convicted of the fourth type of aggravated
kidnapping only if he or she kidnaps "to exact from another person any money or
valuable thing." (§ 209, subd. (a), italics added; see Kozlowski, supra, 96 Cal.App.4th at
pp. 870–871; Ibrahim, supra, 19 Cal.App.4th at pp. 1696–1698.) The instruction used
here did not require a secondary victim, leaving open the possibility the jury could have
found Stringer guilty of the fourth type of aggravated kidnapping if he kidnapped to exact
money or a valuable thing from the kidnap victim. This was error.4
We now turn to whether the instructional error was prejudicial. Both parties
acknowledge, and we agree, there was no instructional error with respect to the third type
of aggravated kidnapping (for extortion). Therefore, the instruction with which the jury
was charged included two theories of liability, one legally correct and the other legally
incorrect. The legally correct theory of liability permitted the jury to find Stringer guilty
of aggravated kidnapping to commit extortion, which refers to the taking of property
3 The relevant portion of CALCRIM No. 1202 modified and adopted here states: "The defendant [kidnapped the victim] (for ransom[,]/ [or] for reward[,]/ [or] to commit extortion[,]/ [or] to get money or something valuable)."
4 Because the bracketed portion of paragraph 3 of CALCRIM No. 1202 suffers from the same defect, we urge the Judicial Council of California to consider revising CALCRIM No. 1202 in accordance with the views expressed in this opinion. 10 through the wrongful use of force or fear with the victim's consent. (§ 518; see People v.
Torres (1995) 33 Cal.App.4th 37, 50 (Torres).) The legally incorrect theory of liability
permitted the jury to find Stringer guilty of aggravated kidnapping to exact money or
something valuable from either the kidnap victims or a secondary victim, with or without
victim consent. This type of instructional error, where the jury is instructed with one
correct theory of guilt and one incorrect theory of guilty, is known as "alternative-theory
error." (People v. Aledamat (2019) 8 Cal.5th 1, 7, fn. 3 (Aledamat).)
Relying on People v. Guiton (1993) 4 Cal.4th 1116, Stringer contends we must
find the alternative-theory error prejudicial unless there is "a basis in the record to find
that the verdict was actually based on a valid ground." (Guiton, at p. 1129, italics added.)
The People, by contrast, urge us to apply the traditional prejudice standard governing
errors of state law, under which we must find the error harmless unless it is "reasonably
probable" the defendant would have achieved a more favorable result had the error not
occurred. (People v. Watson (1956) 46 Cal.2d 818, 836.) Both parties are mistaken.
As our Supreme Court recently clarified, we review alternative-theory errors under
the Chapman v. California (1967) 386 U.S. 18 (Chapman) standard governing federal
constitutional errors. (Aledamat, supra, 8 Cal.5th at p. 3; see People v. Stutelberg (2018)
29 Cal.App.5th 314, 320–321 [applying Chapman standard to alternative-theory error].)
Under that standard, we "must reverse the conviction unless, after examining the entire
cause, including the evidence, and considering all relevant circumstances, [we]
determine[] the error was harmless beyond a reasonable doubt." (Aledamat, at p. 13.)
11 "An examination of the actual verdict may be sufficient to demonstrate harmlessness, but
it is not necessary."5 (Aledamat, at p. 13.)
Applying the Chapman standard to the present case, we cannot conclude the error
was harmless beyond a reasonable doubt. Beginning with the verdicts, we note the jury
found Stringer guilty of kidnapping during the commission of a carjacking (counts 5 and
6), which requires proof of a completed carjacking. (People v. Jones (1999) 75
Cal.App.4th 616, 626.) Carjacking, in turn, refers to the felonious taking of a vehicle in
the possession of another "against his or her will ...." (§ 215, subd. (a), italics added; see
People v. Hill (2000) 23 Cal.4th 853, 855 ["Conviction of ... carjacking generally requires
proof that the perpetrator committed the criminal act[] against the will of the victim, i.e.,
without the victim's consent."].) The verdicts for counts 5 and 6 necessarily suggest the
jury found that Stringer took property against the will of the victims and therefore may
have relied on the legally incorrect theory of guilt to convict Stringer of counts 1 and 2.
The People contend the verdicts compel a contrary conclusion. They argue the
jury likely applied the legally correct theory of guilt because it returned verdicts finding
Stringer not guilty of kidnapping to commit robbery (counts 3 and 4), an offense
requiring the People to prove the accused perpetrated a kidnapping to take property from
the victim against his or her will. (§ 209, subd. (b); see Torres, supra, 33 Cal.App.4th at
p. 50 ["in robbery property is taken from another by force or fear 'against his will' while
5 The Supreme Court decided Aledamat after this appeal was fully briefed, but the parties both submitted supplemental briefs analyzing the case and its application to this appeal. 12 in extortion property is taken from another by force or fear 'with his consent' "].) The
People claim the jury necessarily would have convicted Stringer of kidnapping to commit
robbery if it had believed he kidnapped the victims to take property against their will.
We disagree with the People because the jury may have found Stringer not guilty
of counts 3 and 4 for reasons unrelated to the issue of victim consent. The jury
instruction for counts 3 and 4 stated the accused must intend to commit robbery when he
or she begins to move the victim or make the victim move. (CALCRIM No. 1203; see
People v. Tribble (1971) 4 Cal.3d 826, 830–833.) The instruction for counts 1 and 2,
however, contained no analogous provision regarding when a defendant must form the
intent to obtain property from the victim. Further, the trial court received a note from the
jury foreperson indicating the jury had a question regarding the effect, if any, if it were to
find that Stringer formed an intent to obtain property after the kidnapping began.6 Based
on the foregoing, it is reasonable to conclude the jury may have found Stringer not guilty
of counts 3 and 4 because it believed he formed the intent to take money or property after
the kidnapping began—a finding unrelated to the issue of victim consent.
Certain evidence in the record further suggests the instructional error may have
been prejudicial. The baseball coach, student, and Stringer all testified the coach
beseeched Stringer to take their cell phones, their money, and the coach's vehicle. In
other words, he consented to the taking of his property. However, Stringer did not accept
6 The jury foreperson's note asked: "Does extortion need to be at the beginning of the commission of the crime, or can it come in the middle of the crime[?]" 13 any of the coach's repeated offers. From this evidence, it is conceivable the jury may
have found that Stringer perpetrated the kidnappings for a purpose other than taking
property with the consent of his victims, i.e., for a reason other than extortion.
Finally, as the People concede in their appellate brief, no evidence was presented
suggesting Stringer sought to procure money or property from a victim other than the
kidnap victims themselves. Therefore, there is no basis for us to conclude the jury
convicted Stringer of the fourth type of aggravated kidnapping (kidnapping to exact from
another person any money or valuable thing) under a viable legal theory.
For all these reasons, the instructional error was not harmless beyond a reasonable
doubt. Therefore, the judgment must be reversed as to the convictions for counts 1 and 2.
B
As an alternative to the claim of instructional error just discussed, Stringer
contends there was insufficient evidence to support the convictions for counts 1 and 2.
"Although we have concluded that the [aggravated] kidnapping conviction[s] must be
reversed because [they were] presented to the jury on both a legally adequate and a
legally inadequate theory, we must nonetheless assess the sufficiency of the evidence to
determine whether defendant may again be tried for the [aggravated] kidnapping
offense[s]." (People v. Morgan (2007) 42 Cal.4th 593, 613 (Morgan).)
" 'In reviewing the sufficiency of the evidence, we must determine "whether, after
viewing the evidence in the light most favorable to the prosecution, any rational trier of
fact could have found the essential elements of the crime beyond a reasonable
14 doubt." ' [Citation.] 'Substantial evidence' is evidence which is ' "reasonable in nature,
credible, and of solid value." ' " (Morgan, supra, 42 Cal.4th at pp. 613–614.)
As previously noted, there was no evidence to support a finding—and the People
do not suggest—that Stringer kidnapped the victims to exact money or other property
"from another person," which might otherwise support a conviction of aggravated
kidnapping. (§ 209, subd. (a).) Instead, the central dispute on appeal is whether there
was sufficient evidence to support a finding beyond a reasonable doubt that Stringer
kidnapped the victims "to commit extortion." (Ibid.) In particular, Stringer claims a
rational jury could not have reached such a finding because there was insufficient
evidence to prove he sought to take property from the victims with their consent.
As previously discussed, we cannot conclude the instructional error as to the
charges of aggravated kidnapping was harmless. As we noted, certain of the jury's
verdicts and some evidence in the record suggest the jury may not have found that
Stringer committed aggravated kidnapping to commit extortion. Nevertheless, we
conclude there was substantial evidence from which a rational jury could find Stringer
guilty, beyond a reasonable doubt, of aggravated kidnapping to commit extortion.
Both victims testified that Stringer immediately brandished a gun at his victims.
However, the evidence indicates that Stringer did not take the unarmed victims' cell
phones or money when he brandished the firearm, though he apparently had the means to
do so. Further, according to the victims' testimony, Stringer stated several times he did
not intend any immediate harm to them. Indeed, they testified that Stringer threatened
them with harm only if they did "anything stupid," and claimed "nothing bad" would
15 happen to them otherwise. Further, they testified that certain of Stringer's threats and
comments foretold of possible future harm, but not necessarily present harm. For
instance, Stringer told the victims he intended to take their identification cards after they
arrived at their destination, so he could locate and potentially harm them in the future, if
necessary.
From this evidence, a rational jury could conclude that Stringer kidnapped the
victims not with an intent to threaten them with immediate harm and procure property
from them against their will, but rather to threaten them with future harm and take
property from them with their consent. Such evidence is consistent with, and sufficient to
support, a finding that Stringer perpetrated the kidnapping to commit extortion. (See
Torres, supra, 33 Cal.App.4th at pp. 52–53, fn. 7 ["[A] person commits robbery when he
threatens immediate harm to the victim whereas he commits extortion when he threatens
future harm to the victim."].) Because the evidence was sufficient to support the
convictions for aggravated kidnapping to commit extortion, Stringer may again be tried
for the offenses. (People v. Franco (2009) 180 Cal.App.4th 713, 726.)
C
As noted, the jury convicted Stringer of simple kidnapping (counts 9 and 10) and
kidnapping to facilitate carjacking (counts 5 and 6) arising from his conduct with respect
to the baseball coach and student. Stringer challenges the simple kidnapping convictions
on grounds that simple kidnapping is a lesser included offense of kidnapping to facilitate
carjacking. He argues he could not have been convicted of both lesser and greater
16 offenses arising out of the same act or conduct. The People concede these arguments and
agree Stringer's simple kidnapping convictions should be reversed.
"When a defendant is found guilty of both a greater and a necessarily lesser
included offense arising out of the same act or course of conduct, and the evidence
supports the verdict on the greater offense, that conviction is controlling, and the
conviction of the lesser offense must be reversed." (People v. Sanders (2012) 55 Cal.4th
731, 736.) The parties do not dispute that simple kidnapping is a lesser included offense
of kidnapping to facilitate carjacking. (See People v. Ortiz (2012) 208 Cal.App.4th 1354,
1368 [the elements of simple kidnapping "appear to be included within the elements of
kidnapping during a carjacking"].) They also do not dispute that sufficient evidence
supported the convictions for the greater offense of kidnapping to facilitate carjacking.
Accordingly, we accept the People's concessions and, as all parties agree, conclude the
convictions for simple kidnapping (counts 9 and 10) must be reversed.
D
During jury deliberations, the trial court received a note from the jury foreperson
asking whether a defendant must know a victim is under the age of 18 years to be found
guilty of child endangerment. After consulting with counsel for both parties, the trial
court—with no objection from Stringer's counsel—replied as follows: "There is no
requirement that the defendant know or reasonably know the age of the person under the
age of 18." Subsequently, the jury found Stringer guilty of child endangerment based on
his conduct with respect to the 16-year-old kidnap victim (count 13).
17 On appeal, Stringer acknowledges the child endangerment statute, section 273a,
subdivision (a), does not require the People to prove the defendant knew the victim was
under 18 years of age. However, he argues a defendant accused of child endangerment
may assert a mistake of fact defense based on his or her reasonable, but incorrect, belief
that the victim was 18 years of age or older at the time of the offense. Stringer contends
his trial counsel provided ineffective assistance by not requesting a mistake of fact
instruction regarding his allegedly mistaken belief of the victim's age.
Stringer concedes he could find no case involving a child endangerment charge in
which a court has sanctioned a mistake of fact defense regarding a victim's age, but
argues such a defense was nevertheless available to him under the principles set forth in
People v. Hernandez (1964) 61 Cal.2d 529 (Hernandez). In that case, the defendant was
convicted of statutory rape and requested, but was denied, an opportunity to present
evidence that he reasonably and in good faith believed the 17-year-old victim was 18
years of age or older.7 The Hernandez court reversed the judgment, concluding that an
accused's reasonable and good faith mistake of fact as to the victim's age can eliminate
the requisite intent necessary to sustain a statutory rape conviction. (Hernandez, at p.
536.)
7 When Hernandez was decided, statutory rape was defined in former section 261, subdivision 1, as an act of sexual intercourse accomplished with a female not the wife of the perpetrator where the female was under the age of 18 years. (Stats. 1913, ch. 122, p. 212.) 18 "Defendants have sought, with mixed results, to have courts apply the Hernandez
rationale to various other criminal statutes which specify a victim's age." (People v.
Magpuso (1994) 23 Cal.App.4th 112, 115 (Magpuso).) Courts have approved defenses
based on an accused's mistaken belief as to a victim's age in cases involving charges of
annoying or molesting a child under 18 years of age (People v. Atchison (1978) 22 Cal.3d
181, 183), oral copulation with a person under 18 years of age (People v. Peterson (1981)
126 Cal.App.3d 396, 397), and inducing a minor to use marijuana and narcotics
(People v. Goldstein (1982) 130 Cal.App.3d 1024, 1035–1037). By contrast, they have
concluded the defense is unavailable in cases where the charged offenses were offering to
furnish marijuana to a minor (People v. Lopez (1969) 271 Cal.App.2d 754, 760–762),
selling a controlled substance to a minor (People v. Williams (1991) 233 Cal.App.3d 407,
410–412), kidnapping a person under 14 years of age (Magpuso, at pp. 115–118), and
engaging in unlawful sexual intercourse and oral copulation with a person under 16 years
of age (People v. Scott (2000) 83 Cal.App.4th 784, 797–801 (Scott)).
As the Hernandez court explained, the availability of a mistake of fact defense as
to a victim's age turns on whether the defendant's mistaken belief, "if true, would [have]
ma[de] the act for which the person is indicted an innocent act ...." (Hernandez, supra,
61 Cal.2d at p. 535, italics added.) Stated differently, the defense is available where the
defendant's mistaken view of facts, if correct, "would have precluded a finding of
criminal intent or evil design and the defendant's conduct by itself would have been
entirely innocent." (People v. Parker (1985) 175 Cal.App.3d 818, 822.) On the other
hand, where the defendant's ignorance of the victim's age would not disprove criminal
19 intent and the defendant would still be guilty of a criminal act notwithstanding his or her
ignorance of the victim's age, no mistake of fact defense is available. (Scott, supra, 83
Cal.App.4th at p. 800 [defense not available where, "even if [the victim] had been 16,
[defendant] would still be guilty of felony unlawful sexual intercourse"]; Magpuso,
supra, 23 Cal.App.4th at p. 118 [defense not available where defendant "was committing
a criminal act, with criminal intent, regardless of her belief as to ... age."].)
Applying these principles, we conclude that a mistake of fact defense pertaining to
the victim's age was not available to Stringer. Unlike the defendant in Hernandez, who
would have been innocent of any wrongdoing if the victim had been 18 years of age or
older, Stringer still would have committed criminal offenses if the victim had been 18
years of age or older. As noted ante, the jury in fact convicted Stringer of several other
offenses based on the conduct giving rise to the child endangerment charge, including the
offenses of aggravated kidnapping of the 16-year-old (count 2), kidnapping the 16-year-
old to facilitate carjacking (count 6), carjacking (count 8), simple kidnapping of the 16-
year-old (count 10), and assaulting the 16-year-old with a firearm (count 12).8
"A defendant claiming ineffective assistance of counsel under the federal or state
Constitutions must show both deficient performance under an objective standard of
professional reasonableness and prejudice under a test of reasonable probability of a
8 Our conclusion that a mistake of fact defense was unavailable to Stringer in this case does not stand for the proposition that such a defense is categorically unavailable in all child endangerment cases prosecuted under section 273a, subdivision (a). We do not address this question, the answer to which is unnecessary to resolve the case before us. 20 different outcome." (People v. Osband (1996) 13 Cal.4th 622, 664.) Because Stringer
was not entitled to a jury instruction based on his allegedly mistaken belief regarding the
victim's age, Stringer has not demonstrated that his trial counsel rendered ineffective
performance when it failed to request such an instruction. (People v. Dennis (1998) 17
Cal.4th 468, 542; People v. Pepper (1996) 41 Cal.App.4th 1029, 1038.)
E
The day the trial was scheduled to begin, Stringer informed the court he desired to
represent himself in propria persona under Faretta v. California (1975) 422 U.S. 806
(Faretta), based on "irreconcilable" disagreements between himself and his trial counsel
regarding trial strategies. The court found the Faretta request untimely and, after
exercising the discretion afforded it under People v. Windham (1977) 19 Cal.3d 121
(Windham), denied the request. On appeal, Stringer contends the court erred in denying
his Faretta request.
A criminal defendant possesses a right to be represented by counsel at all critical
stages of the prosecution and, under the Sixth Amendment, a right to represent himself or
herself. (Faretta, supra, 422 U.S. at p. 818.) "The right of self-representation is
absolute, but only if a request to do so is knowingly and voluntarily made and if asserted
a reasonable time before trial begins. Otherwise, requests for self-representation are
addressed to the trial court's sound discretion." (People v. Doolin (2009) 45 Cal.4th 390,
453.) "[A] trial court may consider the totality of the circumstances in determining
whether a defendant's pretrial motion for self-representation is timely." (People v. Lynch
(2010) 50 Cal.4th 693, 726 (Lynch), abrogated on other grounds in People v. McKinnon
21 (2011) 52 Cal.4th 610.) Such circumstances include the time between the motion and the
scheduled trial date, whether trial counsel is ready to proceed to trial, the number of
witnesses and the reluctance or availability of crucial trial witnesses, the complexity of
the case, any ongoing pretrial proceedings, and whether the defendant had earlier
opportunities to assert his right of self-representation. (Ibid.)
Applying these standards, we conclude the trial court properly found Stringer's
self-representation motion untimely. Our Supreme Court has "held on numerous
occasions that Faretta motions made on the eve of trial are untimely," (Lynch, supra, 50
Cal.4th at p. 722), and, here, Stringer requested to represent himself the same day trial
was scheduled to begin. (People v. Valdez (2004) 32 Cal.4th 73, 102 [Faretta request
untimely when made "moments before jury selection"]; People v. Horton (1995) 11
Cal.4th 1068, 1110–1111 [Faretta request untimely when made on the date scheduled for
trial]; People v. Frierson (1991) 53 Cal.3d 730, 740, 742 [Faretta request made two days
before trial untimely].) Further, as the trial court noted, trial was scheduled to
accommodate the limited availability of one of the kidnap victims (who attended school
out-of-state), the case involved complex issues including the effects of methamphetamine
on the defendant's ability to form criminal intent, and Stringer did not make a Faretta
22 request at any of the many pretrial proceedings he attended. Based on all these factors,
the trial court did not err in finding the request untimely.9
Because Stringer's Faretta request was untimely, we must next determine whether
the trial court abused its discretion in denying the request under the standards set forth in
Windham. (People v. Buenrostro (2018) 6 Cal.5th 367, 427.) Among other factors to be
considered by the court in assessing an untimely Faretta request "are the quality of
counsel's representation of the defendant, the defendant's prior proclivity to substitute
counsel, the reasons for the request, the length and stage of the proceedings, and the
disruption or delay which might reasonably be expected to follow the granting of such a
motion." (Windham, supra, 19 Cal.3d at p. 128.)
In denying the untimely Faretta request, the trial court noted Stringer's trial
counsel was "top shelf," provided "very good" representation, and stood as the "only
thing" between Stringer and "complete foolishness" in view of his tendency to "go off"
and interrupt court proceedings. The court indicated Stringer had previously filed a
motion to substitute counsel, which was denied, and had already sought and obtained a
9 Stringer suggests the Faretta request was untimely due to circumstances outside his control. He contends he originally communicated the Faretta request to his trial counsel in the weeks preceding the scheduled trial date, but she determined these communications were privileged and therefore did not communicate the Faretta request to the trial court. However, there is no indication in the record that Springer instructed his counsel to waive the attorney-client privilege for the limited purpose of conveying the Faretta request to the court and, in any event, Stringer conceded he was not prepared to proceed to trial when he originally communicated the Faretta request to his counsel. Under the totality of the circumstances, the alleged communications between Stringer and his trial counsel do not excuse the untimely nature of the Faretta request. 23 continuation of the trial date over the People's objection. Further, Stringer conceded he
"[a]bsolutely" was not prepared to proceed to trial in propria persona and could not
estimate when he would be prepared to proceed to trial.10 Finally, the court found the
disruption and delay associated with the Faretta request may prejudice the prosecution's
case. In particular, it reasoned that the driver whose vehicle Stringer entered at the scene
of the car crash was elderly and her advanced age could render her unavailable to testify
at a later trial date. On this record, no abuse of discretion has been established.
F
Pursuant to section 667, subdivision (a), the trial court imposed mandatory 5-year
sentencing enhancements for counts 1, 5, and 18 based on Stringer's prior serious felony
conviction. After sentencing took place, the Governor signed into law Senate Bill No.
1393, effective January 1, 2019, which granted courts discretion to strike or dismiss prior
serious felony convictions for sentencing purposes. (Stats. 2018, ch. 1013, §§ 1–2.)
Stringer argues the legislative amendments implemented by Senate Bill No. 1393 apply
retroactively to all nonfinal judgments and urges us to remand the matter to permit the
trial court to exercise its newly granted discretion to strike or dismiss the prior serious
felony conviction at issue. Because we are reversing the judgment as to counts 1–2 and
9–10, and therefore remanding the matter for resentencing, we need not address the
10 Stringer handed the court a written motion to continue the trial during the same hearing in which the court considered the Faretta request. In the motion, he stated he required a continuance of at least 120 days to "begin anew, the preparation of the defense." 24 merits of Stringer's argument. During resentencing, the trial court may exercise the
discretion granted it by Senate Bill No. 1393. (§ 1385, subds. (a)–(b).) We express no
opinion on how the trial court should exercise its discretion and instead reserve the matter
for the trial court to decide in the first instance on remand.
IV
DISPOSITION
The judgment is reversed as to the convictions for aggravated kidnapping in
violation of section 209, subdivision (a) (counts 1 and 2) and simple kidnapping in
violation of section 207, subdivision (a) (counts 9 and 10), and affirmed in all other
respects. The matter is remanded to allow the People an opportunity to retry Stringer for
violations of section 209, subdivision (a) with proper instructions. Following the
People's election and any retrial, the court is directed to resentence Stringer, at which
time the court may consider whether to exercise its newly acquired discretion to strike
or dismiss the prior serious felony conviction.
McCONNELL, P.J.
WE CONCUR:
BENKE, J.
DATO, J.