P. v. Milam

Filed 2/15/06 P. v. Milam CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

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

Joan Comparet-Cassani, Judge. Reversed in part and remanded for resentencing, otherwise affirmed.

Susan Pochter Stone, 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, Chung L. Mar and Corey J. Robins, Deputy Attorneys General, for Plaintiff and Respondent.

Following a jury trial, appellant Thomas Jason Milam was convicted of multiple crimes committed on January 4, 2003, arising from the robbery of employees in a pawnshop; the subsequent police pursuit which included appellant's shooting at officers; and appellant's breaking into the townhouse of Teresa C. Appellant was sentenced to a total determinate term of 115 years and eight months in prison, including terms for firearm enhancements.[1] His appeal concerns only certain crimes related to his breaking into the townhouse and his subsequent conduct with the victim (count 14, residential burglary; Pen. Code § 459; count 15, kidnapping to commit robbery, Pen. Code § 209, subd. (b)(1)). Concluding that on the specific facts of this case there is insufficient evidence of kidnapping, we shall reverse the conviction on count 15 and remand for resentencing; in all other respects we shall affirm the judgment.

PROCEDURAL HISTORY AND STATEMENT OF FACTS

The pawn shop, shootouts, and appellant's arrest

After patronizing the store earlier in the day, appellant and codefendant Theodore Kelly, along with two other men, entered Albert's Pawn Shop in Long Beach with guns, handcuffs, and bulletproof vests. All three employees were held hostage; a woman and her four children were locked in the back room after an assailant hit the woman in her head with a gun. The assailants took money and jewelry from the pawn shop and wallets from the three employees.[2] Police responded to a silent alarm activated by the owner of the pawn shop.

As police arrived, the four assailants left the pawn shop and split up. Three of them ran to the apartment above the pawn shop, removed and hid their bullet-proof vests and employees' wallets, and hid three of the guns on the roof next door to the apartment. Right outside the apartment were two of the black trash bags the assailants had used, still filled with jewelry from the robbery.

Appellant ran out first and did not go with the other three assailants to the roof, but ran down the street with one of the black bags with jewelry. The police yelled for him to stop and identified themselves. Appellant dropped the bag, pulled out a gun, and shot at the police. There was one shootout in the alley.[3] Appellant again fled and went to a nearby apartment building, where he fired at two other police officers.

Fleeing from the police, appellant climbed into the window of 64-year-old Teresa C. Because the issues on appeal concern the incident with Teresa C., we detail those facts below.

Thereafter, having changed clothes, appellant fled to another townhouse in the building and struggled with a resident while a SWAT team surrounded the building. Appellant asked for help and did not threaten the resident, who eventually let him in.[4] As police evacuated the building, they noted appellant was sweating profusely and did not seem to fit with the Hispanic family from that apartment; police asked the residents who he was. When they indicated to the police that they did not know that man, appellant was arrested. He was wearing clothes that did not fit him and a pair of female house slippers that appeared to be several sizes too small. Detectives found appellant's gun on the roof of one of the apartments and his clothes and identification inside one of the apartments.

The episode with Teresa C.[5]

On Saturday night, January 4, 2003, Teresa C. was sitting alone in her townhouse in Long Beach. Her daughter, Donna C., lived in a townhouse in the same complex.[6] Teresa heard noises outside and thought it was â€