Opinion
F072243
02-02-2017
THE PEOPLE, Plaintiff and Respondent, v. JOHNNY GAMEL, Defendant and Appellant.
Paul V. Carroll, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Ian Whitney, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. BF151613A)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Kern County. John R. Brownlee, Judge. Paul V. Carroll, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Ian Whitney, Deputy Attorneys General, for Plaintiff and Respondent.
Before Levy, Acting P.J., Gomes, J. and Franson, J.
-ooOoo-
A jury convicted appellant Johnny Gamel of kidnapping for extortion (count 1/Pen. Code, § 209, subd. (a)), first degree robbery (count 2/§ 212.5, subd. (a)), burglary (count 3/§ 460, subd. (a)), false imprisonment (count 4/§ 236), and elder abuse (count 5/§ 368, subd. (b)(1)). The jury also found true a great bodily injury enhancement (§ 12022.7, subd. (c)) in each count.
All further statutory references are to the Penal Code.
The jury found not true a personal use of a deadly weapon enhancement in each count.
On August 26, 2015, the court sentenced Gamel to life without the possibility of parole on count 1, a stayed six-year great bodily injury enhancement in that count, and a stayed, aggregate, determinate term of 39 years on the remaining counts and enhancements.
On appeal, Gamel contends: (1) the evidence is insufficient to sustain his kidnapping conviction; and (2) the court erred when it ordered him to pay a parole revocation fine. We find merit to this second contention and modify the judgment accordingly. In all other respects, we affirm.
FACTS
The Prosecution Evidence
Gamel occasionally did yard work for 89-year-old George Ametjan. On September 30, 2013, at around 9:00 p.m., Ametjan heard glass breaking at his front door, and when he went to check, he saw Gamel in his front yard. Ametjan opened the door and Gamel forced his way into the house where he was eventually joined by at least two other men whom Ametjan did not see clearly. Gamel pushed Ametjan to the living room and sat him on a chair. He straddled Ametjan, hit him under the chin with the palm of his hand and demanded money. Gamel took $40 to $60 and an ATM card from Ametjan's wallet and demanded the PIN. Ametjan, however, gave him the wrong number because he was shaken up.
After duct taping Ametjan's legs, the men left but they returned within 30 minutes because they were unable to withdraw any money with Ametjan's ATM card. Gamel and the other men then duct taped Ametjan's legs and arms together and moved him to a bedroom where Ametjan was "knocked crazy" and bound to the bed with string and an electrical cord. Gamel left the bedroom but returned to tell Ametjan that they did not have enough money. He also threatened Ametjan with what appeared to be knife, so Ametjan gave him the correct PIN number. The men put duct tape over Ametjan's mouth, eyes and ears, took his checkbook, and left.
On October 1, 2013, at 5:15 p.m. Robert Allan Lando went to Ametjan's house and found him tied up in his bedroom. Lando removed the tape from Ametjan's mouth and called 911.
Ametjan was taken to the hospital, where it was determined that he suffered severe soft tissue injuries to his face, three fractures on his back and spine, several fractured ribs from being struck with a blunt object, and that he bled into his lungs from his injuries. Ametjan was hospitalized for 26 days. During that time, he identified Gamel from a photo lineup. One of Gamel's fingerprints was found on the duct tape that was used to bind Ametjan.
Gamel was interviewed by Detectives Brandon Rutledge and Raul Murillo on April 18, 2014, after his arrest in Texas earlier that month. During the interview, Gamel initially claimed that a gang member named Frankie Perez went into Ametjan's house and took an ATM card from him. He later admitted he entered the house intending to steal property from Ametjan, but he denied restraining or hitting him. According to Gamel, he accompanied Perez to Gamel's house to get money or property to pawn, thinking Ametjan was not there. However, when they found Ametjan there, Perez freaked out and started hitting him. Perez then took Ametjan to the back room and tied him up while Gamel searched the house. Eventually, Gamel took the ATM card to the bank but he was not able to withdraw any money because Ametjan gave them the wrong PIN. When Gamel returned and told Perez that Ametjan gave them the wrong PIN, Perez began beating Ametjan. Perez also told Ametjan that he was not going to stop until he gave him the correct PIN and that he would kill him if he gave him the wrong number.
The Defense Case
Gamel testified he owed $1,300 to Frankie Herrera, who was a Norteño gang member. According to Gamel, he participated in the crimes against Ametjan under duress because Herrera threatened to shoot him over the debt if he did not agree to burglarize Ametjan's house with Herrera and two of Herrera's friends. Gamel admitted he forced his way into Ametjan's house, but claimed it was Herrera who beat Ametjan. Gamel further testified that Herrera and his friends took Ametjan into a bedroom where they obtained a PIN from him while Gamel searched the house. After the first PIN did not work, Herrera went to the bedroom again and returned 10 minutes later with a different PIN. Gamel admitted he used Ametjan's ATM card to get money, which he gave to Herrera, and afterwards Gamel used the ATM card to buy other items.
In his testimony at trial, Gamel referred to Frankie Perez as Frankie Herrera. --------
DISCUSSION
The Sufficiency of the Evidence Claim
Section 209, subdivision (a), provides that "[a]ny person who seizes, confines ..., kidnaps or carries away another person ... with intent to hold or detain ... that person ... to commit extortion" is subject to life imprisonment with or without parole, depending on whether death or bodily harm results. Section 518 defines extortion as "the obtaining of property from another, with his consent, or the obtaining of an official act of a public officer, induced by a wrongful use of force or fear, or under color of official right."
Gamel contends there was no substantial evidence he intended to induce Ametjan's consent to take his property or that Ametjan consented to Gamel taking his property. He further contends that the violence that occurred was directed at overcoming Ametjan's will and not at obtaining his consent. Thus, according to Gamel his conviction for kidnapping for purpose of extortion must be reversed because there was insufficient evidence that he committed extortion. We disagree.
"In addressing a challenge to the sufficiency of the evidence supporting a conviction, the reviewing court must examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—evidence that is reasonable, credible and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] The appellate court presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence." (People v. Kraft (2000) 23 Cal.4th 978, 1053.)
In order to prove that Gamel committed extortion, the prosecutor had to prove that: (1) Gamel threatened to unlawfully injure or used force against Ametjan; (2) when making the threat or using force, Gamel intended to use that fear or force to obtain Ametjan's consent to give Gamel money or property; (3) as a result of the threat or use of force, Ametjan consented to give Gamel money or property; and (4) as a result of the threat or use of force, Ametjan gave Gamel money or the property. (CALCRIM No. 1830.)
"The term consent has a special meaning [in CALCRIM No. 1830]. Consent for extortion can be coerced or unwilling, as long as it is given as a result of the wrongful use of force or fear." (CALCRIM No. 1830.) As stated in People v. Goodman (1958) 159 Cal.App.2d 54 (Goodman): "To constitute extortion the victim must consent, albeit it is a coerced and unwilling consent, to surrender of his property; the wrongful use of force or fear must be the operating or controlling cause compelling the victim's consent to surrender the thing to the extortionist." (Goodman, supra, 159 Cal.App.2d at p. 61.)
The PIN for Ametjan's ATM was property for purposes of extortion. (People v. Kozlowski (2002) 96 Cal.App.4th 853, 866-867.) The jury could reasonably find from the evidence that after Ametjan was kidnapped to his bedroom and bound to his bed, Gamel threatened to use force against Ametjan to coerce him into surrendering his PIN. Moreover, since Gamel could not physically take the PIN from Ametjan because it was intangible, the jury could reasonably find that Gamel acted with the specific intent of forcing Ametjan to consent, albeit unwillingly, to surrendering his PIN.
Gamel contends that the facts of People v. Torres (1995) 33 Cal.App.4th 37 (Torres), "are illustrative and show why Ametjan was not a victim of extortion." In Torres, the defendant collected "rent" from drug dealers for a gang. (Id. at p. 42.) As the defendant detained several men against a wall demanding money from them, Jose Gonzales walked up. The defendant pointed a gun at Gonzales and asked him for money; Gonzales replied he did not have any. The defendant ran his hands over Gonzales's pockets, but did not put them inside, and then told him to stay there.
At that point, Jose Argueta walked up and defendant stopped him and asked him for money. Argueta denied having any money and told the defendant to come back later. Defendant began pushing Argueta and told him that this was "not a game" and that he wanted the money "now." The defendant grabbed Argueta by the hair, put the gun to his head and stated, "Just give me [the money] now or I put your brains out." Argueta replied, "Go ahead if you want," and the defendant shot him in the head. (Id. at p. 51.)
One issue before the court in Torres was whether the defendant was denied the effective assistance of counsel by his counsel's failure to object to a police officer's opinion testimony regarding what constituted robbery and extortion and that the defendant committed robbery. (Torres, supra, 33 Cal.App.4th at pp. 43-44, 47-49.) In finding defense counsel's failure to object harmless, the Torres court found that "the properly admitted evidence supported every element of attempted robbery." (Id. at p. 49.) With respect to Gonzales, the court stated, "When Gonzales stated he had no money defendant patted Gonzales's pockets while continuing to train his gun on Gonzales, thereby demonstrating an intent to take Gonzales's money through force against his will rather than with his consent induced by fear." (Id. at p. 52.) With respect to Argueta, the court cited defendant's statements to Argueta quoted above in stating, "This evidence ... establishes defendant's intent to take Argueta's money by force or fear against his will. At the same time, this evidence negates the specific intent to obtain Argueta's money through consent, a necessary element of extortion." (Ibid.)
Torres is inapposite because here, Gamel could not realistically harbor an intent to take Ametjan's PIN by force against his will because it was not tangible property. Thus, he could only intend to take the PIN from Ametjan with his consent induced by fear. Moreover, in arguing that Torres supports a finding that he robbed and did not extort Ametjan, Gamel appears to conflate the robbery of Ametjan to include the extortion of Ametjan. However, the robbery occurred in the living room when Gamel took Ametjan's wallet, money, and ATM card, the kidnapping occurred when Ametjan was taken from the living room to the bedroom, and the extortion occurred when Gamel threatened Ametjan in the bedroom with a knife in order to get Ametjan to divulge his PIN. Thus, while Torres may be illustrative and show why Ametjan was a victim of robbery while he was in his living room, it does not support Gamel's contention that the taking of Ametjan's PIN in the bedroom was also a robbery.
Gamel also cites Torres, supra, 33 Cal.App.4th at p. 52, fn. 7, to contend that one "distinction between robbery and extortion is that a person commits robbery when he threatens immediate harm to the victim, whereas he commits extortion when he threatens future harm to the victim." However, that extortion may be committed by a threat of future harm does not preclude it from being committed with a threat of immediate harm as occurred here. As noted above, extortion does not have a temporal requirement; it requires only a threat to unlawfully injure or use force against the victim. (CALCRIM No. 1830.)
Without any explanation, Gamel cites People v. Martinez (1984) 150 Cal.App.3d 579, 590-591 (Martinez) and People v. Chacon (1995) 37 Cal.App.4th 52 (Chacon) to contend that aggravated kidnapping for ransom or extortion requires two different victims. However, the courts in People v. Superior Court (Deardorf) (1986) 183 Cal.App.3d 509, 513 (Deardorf), People v. Ibrahim (1993) 19 Cal.App.4th 1692, 1693 (Ibrahim), and People v. Kozlowski (2002) 96 Cal.App.4th 853, 870-871 (Kozlowski), all found that one may be convicted of kidnapping to commit extortion even if the kidnap victim and the extortion victim are the same person. Further, since Gamel offers no reasoned argument why Martinez or Chacon are controlling on this issue, we simply state that we agree with Deardorf, Ibrahim, and Kozlowski that kidnapping for extortion requires only one victim. Thus, we conclude that the evidence is sufficient to sustain Gamel's conviction for this offense. (Cf. Kozlowski, supra, at pp. 853, 856, 858-859, 869-872 [evidence sufficient to sustain kidnapping for extortion where two women gave two men armed with a gun and a knife their PINs while being driven around in a car].)
The Parole Revocation Fine
Gamel contends the court erred in imposing a $300 parole revocation fine pursuant to section 1202.45. Respondent concedes and we agree.
Gamel was sentenced to life without the possibility of parole. "When there is no parole eligibility, the fine [pursuant to section 1202.45] is clearly not applicable." (People v. Oganesyan (1999) 70 Cal.App.4th 1178, 1183.) Therefore, the $300 parole revocation fine the court imposed was unauthorized and we will strike it.
DISPOSITION
The judgment is modified to strike the $300 parole revocation fine imposed pursuant to section 1202.45. The trial court is directed to prepare an amended abstract of judgment that omits this fine and to send a certified copy to the Department of Corrections and Rehabilitation. As modified, the judgment is affirmed.