P. v. Taylor

Filed 3/15/07 P. v. Taylor CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE

APPEAL from a judgment of the Superior Court of Los Angeles County, Andrew C. Kauffman, Judge. Affirmed as modified and remanded with directions.

Irma Castillo, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Margaret E. Maxwell and Lance E. Winters, Deputy Attorneys General, for Plaintiff and Respondent.

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Alonzo Fitzgerald Taylor was convicted of escaping from jail, residential burglary, and kidnapping, with true findings on allegations that he had suffered three prior strikes and two prior serious felony convictions, and had served two prior prison terms. (Pen. Code, 4532, subd. (b)(1), 459, 207, subd. (a), 667, subds. (a)-(i), 1170.12, subds. (a)-(d), 667.5, subd. (b).)[1] He was sentenced to state prison for an aggregate term of 62 years to life. Taylor appeals, (I) challenging the sufficiency of the evidence in support of the kidnapping count and claiming there were (II) instructional and (III) sentencing errors. We modify Taylors sentence to strike a concurrent term and, as modified, affirm.

FACTS

A.

Count 1 - Escape. While in custody on May 3, 2005, Taylor was taken by bus from the Los Angels County Jail to the Clara Shortridge Foltz Criminal Justice Center for a court appearance. He escaped from the courthouse and was at large for about three weeks (he was arrested in Georgia on May 22).

Counts 2 and 3 - Burglary and Kidnapping. During the early morning hours of May 6, 2005, Taylor broke into a Hawthorne residence where Daisy Gonzalez lived with her family (she awoke in her bedroom to find Taylor standing next to her bed). He said he had tied up the other occupants of the house (this was a lie), told her to get up, and warned her that, if she knew what was good for her, she would not scream. She told him to take whatever he wanted and to leave, offering him her phone, credit cards and jewelry. He did not respond.

Gonzalez (who is not very good with measurements) got up and Taylor led her to a bathroom, about six to eight feet, maybe perhaps more. He then stepped behind her and directed her into the bathroom. She entered, then turned around to face Taylor. He turned off the light and started to close the door. Gonzalez, afraid that she would not be strong enough to push him away once he closed the door, decided she had to try to escape. She pushed Taylor and he fell to the floor. He tried to grab her but she ran by him and into her parents room. Her father called 911, and Gonzalez thereafter identified Taylor from a photographic lineup.

B.

As noted above, Taylor was apprehended about three weeks later, at which time he was charged with the escape, burglary and kidnapping. At trial, the People presented evidence of the facts summarized above, the theory being that Taylor had entered the house and moved Gonzalez in order to commit a sexual assault. Gonzalez identified Taylor at trial, and there was evidence that footprints found outside the Gonzalez residence were consistent with the shoes issued to Los Angeles County jail inmates. Taylor was convicted as noted at the outset.

DISCUSSION

I.

Taylor contends the evidence is insufficient to prove that the movement from the bedroom to the bathroom was substantial in character and thus insufficient to support his kidnapping conviction. We disagree.

A.

In People v. Martinez (1999) 20 Cal.4th 225, 235-238, our Supreme Court explained that factors other than actual distance are relevant to determining whether the movement is sufficiently substantial in character to satisfy the asportation element of both simple and aggravated kidnapping. Although the distance the victim is moved must be something more than slight or trivial, the trier of fact may also consider whether the movement increased the risk of harm above that which existed before the asportation, decreased the likelihood of detection, and increased both the danger inherent in a victims foreseeable attempts to escape and the attackers enhanced opportunity to commit additional crimes. (Id. at p. 237.) To permit consideration of the totality of the circumstances is intended simply to direct attention to the evidence presented in the case, rather than to abstract concepts of distance. At the same time, . . . contextual factors, whether singly or in combination, will not suffice to establish asportation if the movement is only a very short distance. (Ibid.)

In a case involving an associated crime (here, as noted, the prosecutors theory was that both the kidnapping and burglary were committed to facilitate a sexual assault), the trier of fact may consider whether the distance a victim was moved was incidental to the commission of that crime in determining the movements substantiality [because] such consideration is relevant to determining whether more than one crime has been committed . . . . (People v. Martinez, supra, 20 Cal.4th at p. 237.)

B.

Relying on People v. Daniels (1969) 71 Cal.2d 1119, Taylor contends that because the movement here was incidental to the commission of the burglary with the intent to commit a sexual battery, it was necessarily insufficient to support the kidnapping conviction. His reliance on Daniels is misplaced. Daniels holds only that when the movements of the victim are merely incidental to the commission of a robbery and do not substantially increase the risk of harm over and above that necessarily present in the crime of robbery itself, the asportation element of kidnapping is not satisfied. (Id. at p. 1139.) That is not this case. (See People v. Dominguez (2006) 39 Cal.4th 1141, 1152 [clarifying that, although any assessment of asportation must include consideration of the actual distance the victim was moved, no minimum distance is required to satisfy the asportation requirement . . . so long as the movement is substantial].)

First, the distance here was neither slight nor trivial. At a minimum, it was from a bedroom into a hallway and then into a bathroom, at least six feet and possibly more than eight feet. (People v. Dominguez, supra, 39 Cal.4th at p. 1152 [applying a multifaceted, qualitative evaluation rather than a simple quantitative assessment to determine asportation].)

Second, the movement substantially increased the risk of harm -- so much so that Gonzalez tried to escape even though she thought she might be shot in the back, believing that would be better than allowing Taylor to keep her in the bathroom where, if [she] stayed there and . . . let him close the door behind him that [she] wouldnt be strong enough to move him away [and] he would be able to do with [her] whatever he wished. Although Martinez tells us that the jury was properly instructed to consider whether the distance Gonzalez was moved was incidental to Taylors intent to sexually molest her (People v. Martinez, supra, 20 Cal.4th at p. 237), Martinez does not say that an affirmative answer means there was no kidnapping, only that this fact -- along with the other factors articulated in Martinez, is relevant to the jurys ultimate determination about which crimes have been committed.

Third, the kidnapping was not (as Taylor claims) merely incidental to the burglary because both crimes were committed with the intent to perpetrate a sexual assault. The burglary was completed when Taylor entered the house. (People v. Valencia (2002) 28 Cal.4th 1, 13 [burglary is complete upon entry with felonious intent]; see also People v. Oliver (1961) 55 Cal.2d 761, 765 [the purpose or motive for the movement is immaterial to the kidnapping].) The asportation (and hence the kidnapping) occurred later, in furtherance of Taylors intent to sexually molest Gonzalez. (People v. Corcoran (2006) 143 Cal.App.4th 272, 279-280.)[2]

For these reasons, the movement was sufficiently substantial in character to support the kidnapping conviction.

II.

Taylor contends the trial court should have sua sponte instructed the jury that it should consider whether his movement of Gonzalez was incidental to the crime of burglary with the intent to commit a sexual battery. For the reasons already stated -- that the burglary was completed before Gonzalez was moved (People v. Valencia, supra, 28 Cal.4th at p. 13) -- we disagree.[3]

III.

Taylor contends section 654 bars separate punishments for the burglary and kidnapping because both were incidental to the same objective (sexual assault). We agree.

A.

Taylor was sentenced to state prison for a term of 62 years to life, comprised of two consecutive third-strike terms of 25 years to life on counts 1 and 2 (the escape and the burglary), two consecutive five-year terms for the prior serious felony convictions, and two consecutive one-year terms for the prior prison terms, plus a concurrent sentence of 25 years to life on count 3 (the kidnapping). His sentence in this case is concurrent to his sentence in another case (presumably the one he was incarcerated for at the time of his escape).

B.

At the time sentence was imposed, the court found the burglary and the kidnapping were committed as part of the same set of operative facts and with the same intent (to commit a sexual offense), but in reliance on People v. Vasquez (2006) 136 Cal.App.4th 898, concluded that section 654 did not bar sentence on both the burglary and the kidnapping.[4]

On the same day sentence was imposed, the Supreme Court granted review in Vasquez on another unrelated issue, held Vasquez pending the decision in People v. Reed (2006) 38 Cal.4th 1224, then dismissed review in Vasquez -- so that it is no longer authority for anything.

As it happens, the trial court said that although section 654 did not at that moment in time preclude the imposition of sentence on both counts, it was of the view that [a] concurrent sentence on those counts [was] appropriate. In short, the court thought it decided the section 654 issue in favor of Taylor by imposing a concurrent rather than a consecutive sentence on count 3. On appeal, Taylor claims the sentence on count 3 must be stayed. For his part, the Attorney General (sans attribution) recycles the theories articulated in Vasquez. We agree with Taylor.

The Attorney Generals argument ignores the trial courts findings. After noting the prosecutors theory -- that Taylor entered the Gonzalez home for the purpose of committing a sexual assault and that the kidnapping was for the same purpose -- the court found, as noted, that the burglary and kidnapping were committed as part of the same set of operative facts. The finding the Attorney General presumes -- that there were multiple victims to violent crimes simply because Gonzalezs parents were present in the house -- was not made by the trial court and cannot exist in the abstract. More to the point, this is much ado about nothing in this case -- where the only remedy Taylor seeks is a stay of a concurrent sentence.

DISPOSITION

The judgment is modified by staying the concurrent sentence imposed on count 3 (25 years to life) and, as modified, affirmed and remanded to the trial court with directions to issue a corrected abstract of judgment and forward it to the Department of Corrections.

NOT TO BE PUBLISHED.

VOGEL, J.

We concur:

MALLANO, Acting P.J.

JACKSON, J.*

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

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[1] All section references are to the Penal Code.

[2] As Division Six of our court explained in People v. Shadden (2001) 93 Cal.App.4th 164, 169, where the defendant claimed his movement of the victim from the front of a store to the back room was insufficient because it was both incidental to an attempted rape and insubstantial, a rape does not necessarily require movement to complete the crime. Where a defendant drags a victim to another place, and then attempts a rape, the jury may reasonably infer that the movement was neither part of nor necessary to the rape.

[3] Were we to find error, we would find it harmless. Taylor concedes the jury was instructed about the asportation element of kidnapping, and this twist (whether the movement was incidental to the burglary) is not, as he claims, an element of kidnapping. It is merely a factor to be considered. (People v. Martinez, supra, 20 Cal.4th at p. 237.) For this reason, any error was harmless under People v. Watson (1956) 46 Cal.2d 818, 836.

[4]Vasquez applied the multiple victim exception to section 654 simply because there were multiple people in the house at the time of the burglary.