P. v. Hunt

Filed 3/15/10 P. v. Hunt CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION EIGHT

APPEAL from a judgment of the Superior Court of Los Angeles County.

Robert J. Higa, Judge. Affirmed.

The Cochran Firm and Al F. Amer for Defendant and Appellant.

Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Paul M. Roadarmel, Jr. and Jaime L. Fuster, Deputy Attorneys General, for Plaintiff and Respondent.

INTRODUCTION

The single issue on appeal is whether appellants kidnapping convictions are supported by substantial evidence that the movement of the victims was more than merely incidental to the robbery increased the risk of harm to the victims.  We affirm. We state only the facts that are pertinent to that question.

STATEMENT OF THE CASE

In a 29-count information, Tyron Hunt (appellant) was convicted of seven counts of kidnapping to commit robbery (Pen. Code[1] 209, subd. (b)(1), counts 1, 5, 9 12, 17, 21, 24); six counts of second degree robbery ( 211, counts 2, 6, 10, 13, 18, 22); two counts of making criminal threats ( 422, counts 8, 15); assault with a deadly weapon  ( 245 subd., (a)(1), count 16); and resisting an executive officer ( 69, count 29). The jury also found true as to counts 1, 2, 5, 6, 9, 10, 12, 13, 17, 18, 21 , 22 and 24 that appellant personally used a firearm ( 12022.53, subd.(b)) and that a principal was armed with a firearm ( 12022, subd. (a)(1)). As to counts 8, 15, and 16, the jury found true that appellant personally used a firearm within the meaning of section 12022.5. The jury deadlocked as to count 28, and the court dismissed it in the interests of justice. Apellant admitted six prior convictions within the meaning of the Three Strikes Law ( 667, subd. (b)-(i) and 1170.12) and one prior serious felony conviction within the meaning of section 677 subdivision (a).

The trial court denied probation and imposed an aggregate indeterminate sentence of 125 years to life in prison, in addition to a determinate term of 75 years. Appellant was ordered to pay fines and was given 611 days of presentence custody credit.

This is an appeal from the judgment.

STATEMENT OF THE FACTS

On March 28, 2007, appellant and another person robbed a number of people at SC Mobile Sounds, a car electronics shop on 6515 South Central Avenue in Los Angeles.  They drove into the shop, got out and looked around. They approached the owners son and an employee (Jesse Cisneros and Juan Jimenez, respectively). At gunpoint, appellant led them from the outside into the businesss showroom, where he ordered them to sit down. While his accomplice stood guard by the one door to the room, appellant left the showroom and led a customer (Ramon Hodge) into the showroom. Appellant left again, found Jesses grandfather, Juan Fragaso, grabbed him and, again at gunpoint, brought him into the showroom. The shops owner, Sergio Cisneros, was in his office located in a trailer. He saw what was happening and tried to call for help.  But appellant caught up with him, hit him in the head with his gun, and threatened to kill him if he did not turn over the cash box.  Appellant then moved Sergio about 50 feet away to the showroom and just pushed him in. Jesse Cisneross stepmother, Maria Zepeda, was also inside the trailer. She went out to look for her daughter Valerie, found her, started walking away, but then returned to call 911. Appellant grabbed Zepeda and took her and her daughter into the office area, where appellant demanded the cash box. After Zepeda swore she did not know what he was talking about, appellant took Zepeda and Valerie at gunpoint from the office trailer to the showroom.

Once all the victims were in the showroom, appellant waved his gun at them and ordered them to empty their pockets. Faced with the threat of being shot, everyone complied. Appellant then grabbed Jimenez, pulled him out of the showroom, and walked him toward the back of the shop, demanding money; then he put Jimenez back into the showroom.

Once he had the victims property, appellant and his accomplice decided to leave and warned the victims not to look at his license plate.  He threatened again to shoot them and then left the showroom, slamming shut the one door leading into the area so they could not see his car or read its license plates. Appellant and his accomplice then left.

Appellant testified on his own behalf.  He said he had gone to SC Mobile Sounds to buy a kilo of cocaine from the owner, Sergio, for $14,500. The person who had accompanied him was one of Sergios drug dealers, whose moniker was Money. Appellant said he gave the cash to Sergio in an alley and waited for him to return with the cocaine. When Money did not return, appellant drove into the shop to look for Sergio. Sergio told appellant to come back several hours later. Appellant did not agree to this change in their arrangement and asked for his money back.  Money got out of appellants car, Sergio ran away, appellant chased Sergio, and tripped him. Sergios employees then came out and Money said he would come back later for the drugs.  Appellant and Money then left. 

DISCUSSION

Appellant contends there is insufficient evidence to support the kidnap convictions. We disagree.

1.      Standard of review

The standard for appellate review of the sufficiency of evidence to support a criminal conviction is familiar. [T]he court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence that is, evidence which is reasonable, credible, and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 578; see People v Rayford (1994) 9 Cal.4th 1, 23; People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) In deciding the sufficiency of the evidence, a reviewing court resolves neither credibility issues nor evidentiary conflicts. [Citation.] Resolution of conflicts and inconsistencies in the testimony is the exclusive province of the trier of fact. [Citation.] Moreover, unless the testimony is physically impossible or inherently improbable, testimony of a single witness is sufficient to support a conviction. [Citation.] (People v. Young (2005) 34 Cal.4th 1149, 1181.)

2. Substantial evidence supports the conviction

Appellants sole contention is that there is insufficient evidence of asportation. Our Supreme Court has stated the test of whether asportation is present for purposes of kidnapping requires an analysis of two prongs. First, the movement must be more than incidental. Second it must increase the inherent risk of harm. (People v. Daniels (1969) 71 Cal.2d 1119, 1140 (Daniels).)In Daniels, two rapists moved their victims short distances. Finding the movements incidental, the court said that the defendants had no interest in forcing their victims to move just for the sake of moving; their intent was to commit robberies and rapes.  It follows that those movements were merely incidental to the robberies and rapes and did not substantially increase the risk of harm otherwise present. (Ibid.)

Appellant relies chiefly on People v Hoard (2002) 103 Cal.App.4th 599 (Hoard). There the Court of Appeal reversed the conviction concluding that the defendants movement of the two women served only to facilitate the crime with no other apparent purpose. (Id. at p. 607, italics added.) Hoards victims were clerks in a jewelry mart. Hoard moved them from the sales floor to the stores back room, where he tied them up and covered their mouths with duct tape.  Then he started taking jewelry out of the cases and told entering customers that the store was closed either for maintenance or for taking inventory.  The court found that although it may have been either useful or essential to the robbery to put the women in the back room of the jewelry store, it could still be considered incidental movement. (Id., at p. 604.)

We find Hoard distinguishable. The facts here are different and satisfy both prongs of Daniels. The first prong is met because the movements were more than incidental. Initially appellant wanted to rob the business of its cash box. But once he moved the victims into the showroom, he chose to rob them individually. Transferring the victims into the showroom, where they would be out of public view, facilitated appellants ability to rob each of them. These separate robberies were not incidental to taking money from the business. In addition, moving the victims made it easier for appellant and his accomplice to escape.

Daniels second prong is satisfied because moving everyone into the showroom greatly increased the inherent risk of harm should anyone have attempted to escape. As stated above, the victims were out of public view, crowded into a room through which only one door provided entry and where the robbers could easily intimidate them. Viewed in the context of the environment in which the movement occurred, (Rayford, supra, 9 Cal.4th at p. 12), we conclude that the two-pronged test of Daniels is met.

The facts in this case are quite close to People v. Corcoran (2006) 143 Cal.App.4th 272. There the Court of Appeal wrote, In the instant case, as we have noted, the movement of the victims did not serve to facilitate the forcible attempted taking of money from the bingo hall. Rather, it served other purposes squarely recognized by the Supreme Court in People v. Dominguez [(2006) 39 Cal.4th 1141] as supporting a finding of a substantial increase in danger: 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. Indeed, there was no purpose for moving the victims to the back office except to facilitate these aims. In context, this movement was not merely brief and trivial; to the contrary, it substantially increased the risk of harm beyond that inherent in the crime of attempted robbery. (Corcoran, at p. 280.)

Even if the facts here matched Hoard, later cases have sharply criticized that opinion. In People v. James (2007) 148 Cal.App.4th 446, 455, the court said that Lack of necessity is a sufficient basis to conclude a movement is not merely incidental; necessity alone proves nothing. Then in a footnote, the court said, A similar logical error appears in People v.Hoard (2002) 103Cal.App.4th 559, 605-606 . . . [which says,] Stated affirmatively, according to Salazar, necessary movement is incidental movement. [(Hoard, supra, at p. 605.)] The conclusion simply does not follow. (James, at p. 455, fn. 8.)

Still more criticism appears in People v. Aguilar (2004) 120 Cal.App.4th 1044, where the court wrote that Hoard disregarded Rayfords reminder that it consider the context of the environment in which the movement occurred, to determine whether that movement was incidental to the crime. [(People v. Rayford, supra, 9 Cal.4th at p. 12.)] (Aguilar, at p. 1051.) Later, the court opined that Hoard also went astray by ignoring Rayfords second prong and its rationale. [A] primary reason forcible asportation is proscribed by the kidnapping statutes is the increase in the risk of harm to the victim that arises from the asportation. [(People v. Rayford, supra, 9 Cal.4th at p. 22.)] (Ibid.) The court also noted that Hoard is at odds with other cases involving the same issues (ibid.) and cited several of them, including People v. Nguyen (2000) 22 Cal.4th 872, 886 [proper to consider substantial increase in psychological harm beyond that to be expected from a stationary robbery(italics added)]. (Ibid.)
The other cases cited above are better reasoned than Hoard and do not ignore our Supreme Courts instruction to view the term incidental within the context of a cases individual facts. Appellant and his accomplice planned to rob a business. In so doing, they forced and pushed several victims at gunpoint from various locations into a showroom that was obscured from public view. Then they robbed each of the victims and shut them in, closing the only door leading into the room. There is more than substantial evidence to support the kidnapping conviction.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

MOHR, J.*

We concur:

BIGELOW, P. J.

FLIER, J.

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[1] All future references are to the Penal Code unless otherwise indicated.

* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.