P. v. Villegas

Filed 10/25/06 P. v. Villegas CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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 THREE

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

Irma Castillo, 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, Assistant Attorney General, Robert F. Katz and Lauren E. Dana, Deputy Attorneys General, for Plaintiff and Respondent.

_________________________

Defendant and appellant, Arturo Villegas, appeals from the judgment entered following his conviction, by jury trial, for two counts of kidnapping to commit robbery and two counts of carjacking, with firearm use and principal armed findings (Pen. Code, §§ 209, 215, 12022, 12022.5).^[1] Sentenced to state prison for life plus ten years, Villegas claims there was trial and sentencing error. The judgment is affirmed.

BACKGROUND

Viewed in accordance with the usual rule of appellate review (People v. Ochoa (1993) 6 Cal.4th 1199, 1206, the evidence established the following.

On the afternoon of October 4, 1999, Mr. and Mrs. Galicia were shopping for fabric at Oxford’s, a store in Los Angeles. The store’s owner, Shirzad Noori, was a friend of the Galicias. Noori was outside his store smoking a cigarette when he noticed three men, standing near the Galicias’s parked van, who seemed to be acting suspiciously.

The Galicias left the store and loaded rolls of fabric into the back of their van. Just as they were getting into the front of the van, defendant Villegas approached Mr. Galicia, pointed a gun at his stomach, and demanded his keys. Mr. Galicia surrendered his keys and Villegas ordered him to get into the van. Villegas then ordered Mrs. Galicia to get into the van. She hesitated, but complied when her husband urged her to get in. Villegas had the Galicias sit in the rear of the van with the fabric rolls. Villegas then signaled to his companions, codefendants Albert Avalos and Arturo Juarez. Avalos got into the driver’s seat and Juarez got into the passenger seat. Villegas sat on a cooler between them. Mrs. Galicia testified Villegas told Avalos, “ ‘Start it up, start it up,’ for him to start up the car.” Avalos started the engine.

Meanwhile, Noori could see something was amiss and he walked over to the van. He knocked on the passenger side window and told the occupants to stop and open the window. Noori testified he yelled, “[N]o don’t do that. Stop the van,” and “[N]o, no, no, no, stop the car.” Juarez motioned for Noori to get away from the van and Avalos drove off. Noori got into his pickup truck, followed the van, and called 911.

As the van drove, Villegas, who was still holding the gun, told Mr. Galicia to give him money. Mr. Galicia handed over $1,624. Villegas asked the Galicias for their jewelry, which they gave him. The van drove onto the 10 Freeway. After a while, Villegas told Avalos to get off the freeway. Avalos exited at Normandie, went down a dead-end street, made a U-turn, and then got back on the freeway. Noori, who had followed the van off the freeway; was told to wait there until police officers arrived. Meanwhile, Avalos drove to the 405 Freeway and was stopped by police after he got off that freeway. The van was stopped 13 miles from Noori’s fabric store.

The Galicias told police Villegas was the perpetrator who had been holding the gun. Inside the van, police found jewelry scattered around the passenger side and the center floorboard areas. They also found a fully loaded, semiautomatic nine millimeter handgun hidden under the fabric rolls. When Villegas was searched at the police station, he had the $1,624 he had taken from Mr. Galicia in his pocket.

Villegas did not present any evidence.

CONTENTIONS

1. The trial court erred by instructing the jury on possession of recently stolen property (CALJIC No. 2.15).

2. The trial court erred by failing to properly instruct the jury on aggravated kidnapping.

3. The trial court committed Apprendi/Blakely error by imposing an aggravated term for the firearm use enhancement.DISCUSSION

1. Trial court properly instructed on possession of recently stolen property.

Villegas contends the trial court erred by instructing the jury with the standard instruction (CALJIC No. 2.15) on possession of recently stolen property.^[2] This claim is meritless.

Villegas argues CALJIC No. 2.15 impermissibly lessened the prosecution’s burden of proof by instructing the jury that only slight evidence in addition to his possession of recently stolen property would support a guilty verdict. Not so. (See People v. Holt (1997) 15 Cal.4th 619, 677 [rejecting claim CALJIC No. 2.15 “permits an inference or presumption based on insufficient foundational facts”]; People v. Johnson (1993) 6 Cal.4th 1, 37, disapproved on other grounds by People v. Rogers (2006) 39 Cal.4th 826, 879 [“contrary to defendant’s assumption, CALJIC No. 2.15 did not remove the issue of intent from the jury’s consideration”].) As explained in People v. Prieto (2003) 30 Cal.4th 226, 248: “[W]e reject defendant’s contention that the trial court’s instruction mandates reversal because it lowered the prosecution’s burden of proof. CALJIC No. 2.15 did not directly or indirectly address the burden of proof, and nothing in the instruction absolved the prosecution of its burden of establishing guilt beyond a reasonable doubt. Moreover, other instructions properly instructed the jury on its duty to weigh the evidence, what evidence it may consider, how to weigh that evidence, and the burden of proof. In light of these instructions,^[3] there is ‘no possibility’ CALJIC No. 2.15 reduced the prosecution’s burden of proof in this case. [Citation.]”

Villegas argues it was error to give CALJIC No. 2.15 because there was no logical foundation “for the conclusion that one who consciously possesses stolen property (the money Villegas had in his pocket) probably had the intent to carjack a van. There is even less logical connection between Villegas’s conscious possession of stolen money and the disputed elements of the kidnapping for robbery charge . . . . “ Villegas is forgetting that, in addition to the stolen money, he was also found to have had at least joint possession (along with his accomplices) of the van itself. Certainly there is a logical connection between Villegas’s possession of the van and both the carjacking and the kidnapping charges. Citing People v. Prieto, supra, 30 Cal.4th 226, and People v. Barker (2001) 91 Cal.App.4th 1166, Villegas argues CALJIC No. 2.15’s inculpatory inference “was never intended to be applied to prove elements other than theft, burglary or robbery” and that “[w]hen the charge is kidnapping for robbery . . . it is error to give the instruction.” Villegas’s reliance on Prieto and Barker is misplaced.

Barker rejected a CALJIC No. 2.15 instruction the trial court had given in relation to the crimes of murder or robbery because “[p]roof a defendant was in conscious possession of recently stolen property simply does not lead naturally and logically to the conclusion the defendant committed a murder to obtain the property.” (People v. Barker, supra, 91 Cal.App.4th at p. 1176.) In Prieto, the CALJIC No. 2.15 instruction referred generically to “ ‘the crimes charged.’ “ (People v. Prieto, supra, 30 Cal.4th at p. 248.) Ruling the instruction should have been limited to theft-related offenses, Prieto said: “The People [argue] Barker was wrongly decided and that the permissive inference described in CALJIC No. 2.15 may be applied to nontheft offenses. We find Barker persuasive and hold that the trial court’s application of CALJIC No. 2.15 to nontheft offenses like rape or murder was improper.” (People v. Prieto, supra, 30 Cal.4th at p. 248.)

Neither Barker nor Prieto helps Villegas because in those cases the jury could have applied the instruction to offenses having no theft element: murder in Barker, and murder with a rape-murder special circumstance in Prieto. We see no problem with Villegas’s jury applying the instruction to the charge of kidnapping for robbery. Indeed, Barker itself noted: “Our research has disclosed no reported decision which has involved the giving of CALJIC No. 2.15 solely with respect to a nontheft crime or with the offense of murder. Nor have the parties cited such a case. Although [People v. Mendoza (2000) 24 Cal.4th 130] . . . appears to have extended the use of CALJIC No. 2.15 beyond the traditional theft-related offenses, kidnapping for the purposes of robbery is arguably by definition a theft-related offense . . . .” (People v. Barker, supra, 91 Cal.App.4th at p. 1175, italics added.) We agree with Barker‘s reasoning that kidnapping for the purpose of robbery is, by definition, a theft-related offense. So, too, is the crime of carjacking.

Villegas complains CALJIC No. 2.15 sabotaged his theory of the case that, although he was guilty of robbery, he was not guilty of either carjacking or kidnapping for robbery “because the movement of the van was caused by Noori rushing over to the van and banging on the window. CALJIC No. 2.15 permitted the jury to reject the defense . . . solely on the basis of the money in his pocket and slight corroborating evidence.” We disagree. Possession of the stolen property raises the fair inference that, after Noori’s intervention, the defendants drove away with the Galicias still captive inside the van because their intent was to commit kidnapping for the purpose of robbery and carjacking. That is, even if the jury believed the perpetrators’ original intent had been to commit only a standstill robbery, a proposition for which there was almost no evidence at trial,^[4] the jury could have reasonably concluded those plans changed once Noori intervened and that the perpetrators decided to turn the aborted standstill robbery into a carjacking and an aggravated kidnapping. The jury was clearly instructed it had to find “[t]he specific intent to commit robbery must be present when the kidnapping commences,” and that “[t]he movement of [the victim] was caused with the specific intent to commit robbery, and the person causing the movement had the required specific intent when the movement commenced[.]”

The trial court did not err by instructing the jury with CALJIC No. 2.15.

2. Trial court properly instructed jury on the asportation element of aggravated kidnapping.

Villegas contends the trial court failed to properly instruct the jury regarding the asportation element of kidnapping for the purpose of robbery. This claim is meritless.

Section 209, subdivision (b), provides, in pertinent part: “(1) Any person who kidnaps or carries away any individual to commit robbery . . . shall be punished by imprisonment in the state prison for life with possibility of parole. (2) 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.”

The trial court gave the jury CALJIC No. 9.54, which defined the elements of kidnapping for the purpose of robbery as follows: “1. A person was unlawfully moved by the use of physical force; 2. The movement of that person was caused with the specific intent to commit robbery, and the person causing the movement had the required specific intent when the movement commenced; 3. The movement of the person was without that person’s consent; 4. The movement of the person was for a substantial distance, that is, a distance more than slight, brief, or trivial; and 5. The movement substantially increased the risk of harm to the person moved, over and above that necessarily present in the crime of robbery itself.”

Villegas asserts this description of the offense elements was fatally inconsistent with an introductory portion of CALJIC No. 9.54, which stated: “Kidnapping is the unlawful movement by physical force of a person without that person’s consent for a substantial distance where the movement is not merely incidental to the commission of the robbery . . . .” Villegas argues this portion of the instruction correctly advised the jury the movement must be both substantial and not merely incidental to committing the robbery, while “in that portion of the instruction which specifies the elements of the crime, no mention is made that movement must be beyond that which is incidental to the commission of the robbery.” He claims that, given these instructions, “it is uncertain whether the jury was made aware that more than ‘incidental’ movement was a separate element . . . .”

Contrary to Villegas’s claim, however, movement beyond that merely incidental to committing the robbery is not a separate element of section 209, subdivision (b).

As our Supreme Court has explained, “[T]he intent of the Legislature in amending Penal Code section 209 in 1951 was to exclude from its reach not only ‘standstill’ robberies [citation] but also those in which the movements of the victim are merely incidental to the commission of the robbery and do not substantially increase the risk of harm over and above that necessarily present in the crime of robbery itself.” (In re Earley (1975) 14 Cal.3d 122, 126-127.) “Brief movements to facilitate either robbery or robbery and rape are incidental thereto . . . . [Citations.] On the other hand movements to facilitate the foregoing crime or crimes that are for a substantial distance rather than brief are not incidental thereto . . . . As heretofore appears, the movement in the instant case was 10 to 13 blocks. Movement of that distance or less has been expressly or impliedly viewed as substantial rather than brief in cases involving section 209 [citations]. Since the movement here was substantial, it was not ‘merely incidental to the commission of the robbery’ [citation], even though it may have been solely to facilitate the commission of the robbery.” (Id. at pp. 129-130, fn. omitted, italics added; see also People v. Gonzales (1994) 21 Cal.App.4th 1648, 1654 [“as a matter of law forced movement for a substantial distance cannot be incidental to the robbery”].)

Hence, the trial court here properly told the jury, “Brief movements to facilitate the crime of robbery are incidental to the commission of the robbery. On the other hand, movements to facilitate the robbery that are for a substantial distance rather than brief are not incidental to the commission of the robbery.” The trial court’s instructions correctly advised the jury which factors to consider when deciding if the movement of the Galicias amounted to aggravated kidnapping.

3. There was no Apprendi/Blakely error.

Villegas contends the imposition of a consecutive aggravated term for the firearm use enhancement violated his right to a jury trial under Apprendi v. New Jersey (2000) 530 U.S. 466, [147 L.Ed.2d 435] and Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403], because the aggravating circumstances should have been found by the jury, not the trial court. This claim is meritless.

The Apprendi/Blakely rule provides that, other than the fact of a prior conviction, any fact increasing the penalty for a crime beyond the statutory maximum must be tried to a jury and proved beyond a reasonable doubt. “[T]he ‘statutory maximum’ for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant. [Citations.] In other words, the relevant ‘statutory maximum’ is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings. When a judge inflicts punishment that the jury’s verdict alone does not allow, the jury has not found all the facts ‘which the law makes essential to the punishment,’ [citation], and the judge exceeds his proper authority.” (Blakely v. Washington, supra, 542 U.S. at pp. 303-304.)

In People v. Black (2005) 35 Cal.4th 1238, our Supreme Court concluded “the provisions of the California determinate sentence law simply authorize a sentencing court to engage in the type of factfinding that traditionally has been incident to the judge’s selection of an appropriate sentence within a statutorily prescribed sentencing range. Therefore, the upper term is the ‘statutory maximum’ and a trial court’s imposition of an upper term sentence does not violate a defendant’s right to a jury trial under the principles set forth in Apprendi, Blakely, and [United States v. Booker (2005) 543 U.S. 220, 125 S.Ct. 738, 160 L.E.2d 621].” (Id. at p. 1254.)

Hence, there was no sentencing error here.^[5]

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

KLEIN, P. J.

We concur:

CROSKEY, J. ALDRICH, J.

Publication courtesy of California pro bono legal advice.

Analysis and review provided by La Mesa Property line Lawyers.

^[1] All further statutory references are to the Penal Code unless otherwise specified.

^[2] The jury was instructed: “If you find that a defendant was in conscious possession of recently stolen property, the fact of that possession is not by itself sufficient to permit an inference that a defendant is guilty of the crime of kidnapping for robbery or carjacking. Before guilt may be inferred there must be corroborating evidence tending to prove a defendant’s guilt. However, this corroborating evidence need only be slight and need not by itself be sufficient to warrant an inference of guilt. As corroboration, you may consider the attributes of possession -- time, place and manner -- that the defendant had an opportunity to commit the crime charged, the defendant’s conduct, his false or contradictory statements, if any, or any other evidence which tends to connect the defendant with the crime charged.”

^[3] The same instructions were given in this case.

^[4] There was strong evidence showing the perpetrators moved the van, or at least turned the engine on, before Noori intervened. Noori testified he banged on the window while yelling at the occupants to stop, which implies the van was already moving when Noori intervened. Although Mrs. Galicia testified the van did not move until after Noori had intervened, and that only after Noori’s intervention did Villegas tell Avalos to start the engine, Mrs. Galicia also testified Avalos had already started putting the key into the ignition: “Q So before your friend approached the van, there was no attempt to start the van; is that right? A He was inserting the key to start it.” (Italics added.) Mr. Galicia testified: “Q But didn’t you testify earlier that your friend came up to the van before it started moving and knocked on the window? A No. I mean it was at that moment it was leaving the parking space when my friend arrived.”

^[5] The United States Supreme Court has granted certiorari in People v. Cunningham (Apr. 18, 2005, A103501) [nonpub. opn.], cert. granted sub nom. Cunningham v. California (2006) 126 S.Ct. 1329, 164 L.Ed.2d 47, a case raising the issue of Blakely‘s applicability to California’s determinate sentencing scheme.