P. v. Kimball

Filed 2/14/06 P. v. Kimball CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

APPEAL from a judgment of the Superior Court of Los Angeles County, Katherine A. Stoltz, Judge. Affirmed.

Cynthia L. Barnes, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven D. Matthews and Adrian N. Tigmo, Deputy Attorneys General, for Plaintiff and Respondent.

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The jury found defendant Christopher Jason Kimball guilty of the second degree robberies of Mike Aflatoun and his wife Ahrang Kim in violation of Penal Code section 211.^[1] The jury also found defendant guilty of the false imprisonment of Aflatoun, Kim, and their two minor daughters, C. and T., in violation of section 236. The jury found that a principal was armed with a handgun in committing the robberies and false imprisonments (§ 12022, subd. (a)(1)), and that defendant took property exceeding $150,000 in value (§ 12022.6, subd.(a)(2)).

In a separate bench trial, the trial court found that defendant suffered two prior serious felony convictions--separate residential burglaries in February and November of 1995--under the Three Strikes law, and that those convictions amounted to serious felonies under section 667, subdivision (a).^[2] The trial court sentenced defendant to 38 years to life in state prison for the Aflatoun robbery (count 1)--25 years to life pursuant to the Three Strikes law, enhanced by 1 year for the principal armed with a firearm enhancement, 2 years for the excessive taking finding, and two terms of 5 years for the serious felony prior convictions. The trial court imposed an identical, concurrent term on count 2 for the Kim robbery. On counts 3 and 4, the trial court stayed imposition of terms of 26 years to life for the false imprisonments of Aflatoun and Kim (the Three Strikes term, plus one year for the principal firearm use enhancement) pursuant to section 654. Finally, as to the false imprisonment counts involving C. and T., the trial court imposed terms of 26 years to life, each to be served concurrently with the sentence on count 1.

Defendant advances two appellate contentions: (1) there was constitutionally insufficient evidence to support his false imprisonment convictions; and (2) the trial court prejudicially erred by failing to instruct sua sponte on the lesser included offense of misdemeanor false imprisonment. We reject both contentions and affirm.

STATEMENT OF FACTS

Wife and husband Ahrang Kim and Mike Aflatoun owned Pars Jewelry store in Tarzana. They were at the store on October 18, 2003, with their two daughters, C. and T., who were 10 and 8 years old. They were preparing to open the store at approximately 11:00 a.m. when a Black male asked Aflatoun to open the door. Aflatoun did so, but told the male that the store was not open to the public yet. Nevertheless, the male pushed the door open and asked to see the watches he had viewed the previous day. Two others males, one of whom was defendant, followed him inside the store. All three had visited the store the day before.

Aflatoun assisted the first male as he tried on watches. Defendant asked Kim to show him and the other male a gold diamond necklace. After doing so, Kim looked in her husband's direction and saw the first male pointing a gun at Aflatoun's back. She and her daughters were standing approximately 15 feet away from them. Defendant ordered Kim to stand next to her husband. The gunman handcuffed Aflatoun, and defendant handcuffed Kim. When Aflatoun tried to escape by kicking the door, defendant grabbed him and pushed him to the floor, bruising Aflatoun's arm.

Defendant dragged Aflatoun into the store's back room and ordered the rest of the family to follow. Kim had â€