Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Tulare County No. JJD055575-02, Hugo Loza, Commissioner.
Patricia L. Watkins, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, and John G. McLean, Deputy Attorney General, for Plaintiff and Respondent.
Before Levy, Acting P.J., Dawson, J., and Kane, J.
OPINION
It was alleged in a juvenile wardship petition that appellant Isaac H., a minor, committed kidnapping for the purpose of committing robbery (kidnap-robbery) (Pen. Code, § 209, subd. (b)(1); count 1), simple kidnapping (§ 207, subd. (a)); count 2); second degree robbery (§§ 211, 212, subd. (c); count 3) and assault by means of force likely to cause great bodily injury (§ 245, subd. (a)(1); count 4), and that in committing counts 1, 2 and 3, he personally used a knife (§ 12022, subd. (b)(1)). At the jurisdiction hearing, the juvenile court found all allegations true. At the disposition hearing, the court ordered appellant committed to the Department of Corrections and Rehabilitation, Juvenile Justice and declared the maximum period of physical confinement to be seven years two months, followed by a term of life with the possibility of parole plus one year, based on the instant offenses and offenses adjudicated in prior wardship proceedings.
All statutory references are to the Penal Code.
On appeal, appellant contends the evidence was insufficient to support his adjudication of kidnap-robbery. Alternatively, he argues that simple kidnapping is a necessarily lesser included offense of kidnap-robbery, and therefore if his adjudication of the greater offense is allowed to stand, his adjudication of simple kidnapping must be reversed. We will reverse appellant’s adjudication of simple kidnapping and otherwise affirm.
FACTS
At approximately midnight on November 10, 2006 (November 10), Raymond P. (Raymond) was walking along East Date Avenue in Porterville when a car approached. Appellant and two other males were in the car. Raymond “knew who they were,” and “felt threatened,” so he attempted to “avoid contact.” The car “pulled up” and the occupants asked Raymond if he knew somebody named Theresa. Raymond, who did know someone by that name and at that point “felt comfortable to talk to them,” replied that he did.
Except as otherwise indicated, our factual summary is taken from Raymond’s testimony.
The occupants of the car asked Raymond where Theresa lived; they wanted to make contact with her because, they said, she owed them money. Raymond agreed to “do[] a favor for them” and guide them to where Theresa lived. He got in the car and they drove to Theresa’s house.
When they arrived, Raymond started to get out of the car, at which point appellant asked Raymond for his backpack. Appellant said “he wanted to hold onto it just in case [Raymond] wouldn’t come back.” Raymond thought this was odd, but he got out of the car, leaving his backpack. He went to Theresa’s door and knocked. No one answered.
At that point, the car “started turning around, ... [as] if they were going to leave ....” Raymond “walked back up towards them as they were leaving and they didn’t want to give [Raymond the backpack].” Initially, Raymond resigned himself to losing his backpack “but [he] wound up getting back in the car because [he] was thinking that they were going to take [him] back [to Theresa’s house].”
As they were driving, appellant and his cohorts became “upset”; they began calling Raymond “‘gay’” and “‘faggot,’” and asking him if he performed various sexual acts. At some point thereafter, while “they were driving around,” appellant, who was sitting next to Raymond in the back seat, “lock[ed] the [car] doors,” at which point one of appellant’s cohorts suggested taking Raymond somewhere and torturing him. At that point, appellant “pull[ed] a knife on [Raymond]” and demanded that Raymond hand over “all the stuff” he had in his pockets. Raymond handed appellant his watch and his wallet.
Appellant and his cohorts drove to Murray Park, where they stopped and ordered Raymond to get out of the car. Raymond was afraid to do so, but appellant and the others began punching him and pulling him out of the car. Raymond’s attackers dragged Raymond out of the car, and continued beating him.
Eventually, Raymond was able to run away, but appellant chased him and “start[ed] punching [him] again.” At that point, the other two attackers said, “Come on[,] [l]et’s go,” and the three of them “wind up just leaving,” while Raymond was lying on the ground. Raymond then went to look for help and eventually someone called the police.
City of Porterville Officer Chris Contreras testified to the following. Just after midnight on November 10, he saw appellant and another subject walking. The officer made contact with the two, “ran their names through [police] dispatch,” and learned that one of the persons was a suspect in a robbery that had occurred earlier that night. The officer detained appellant and his companion.
City of Porterville Officer Mark Azevedo testified to the following. He made contact with Raymond shortly after midnight on November 10. Later, a “field show-up” was conducted, at which Raymond identified appellant as one of the persons who robbed him.
DISCUSSION
Sufficiency of the Evidence
Appellant contends the evidence was insufficient to support his adjudication of kidnap-robbery. He concedes the evidence that appellant locked the car doors was sufficient to establish that what began as a consensual encounter was converted to a simple kidnapping. (See, e.g., People v. Trawick (1947) 78 Cal.App.2d 604, 606 [“It is not necessary that the original accompaniment of the abductor be involuntary, if subsequently there is an enforced restraint of liberty”].) Appellant also concedes the evidence was sufficient to establish appellant committed robbery. But, he argues, his adjudication of kidnap-robbery cannot stand because the evidence was insufficient to establish that he formed the intent to commit robbery “before the asportation commenced ....” (Italics added.) We disagree.
The Law
In determining whether the evidence is sufficient to support a juvenile court finding that a minor has committed a criminal offense, the reviewing court is bound by the same principles as to sufficiency and the substantiality of the evidence which govern the review of criminal convictions generally. (In re Roderick P. (1972) 7 Cal.3d 801, 809.) Those principles include the following.
In addressing a challenge to the sufficiency of the evidence supporting a conviction, the appellate court must determine “‘whether from the evidence, including all reasonable inferences to be drawn therefrom, there is any substantial evidence of the existence of each element of the offense charged.’ [Citations.]” (People v. Crittenden (1994) 9 Cal.4th 83, 139, fn. 13.) In making this determination, “[the appellate 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. [Citation.] 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.)
“Although it is the duty of the [trier of fact] to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence [citations], it is the [trier of fact], not the appellate court which must be convinced of the defendant’s guilt beyond a reasonable doubt. ‘“If the circumstances reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment.”’” (People v. Bean (1988) 46 Cal.3d 919, 932-933.)
“The same standard of review applies to cases in which the prosecution relies mainly on circumstantial evidence [citation] .... An appellate court must accept logical inferences that the jury might have drawn from the circumstantial evidence.” (People v. Maury (2003) 30 Cal.4th 342, 396.)
The elements of simple kidnapping are: “(1) a person was unlawfully moved by the use of physical force or fear; (2) the movement was without the person’s consent; and (3) the movement of the person was for a substantial distance. [Citation.]” (People v. Jones (2003) 108 Cal.App.4th 455, 462, fn. omitted; see § 207, subd. (a).) “[Kidnap-robbery] requires the additional element of an intent to rob, an intent which must be formed before the [kidnapping] commences. If the intent to rob (even though carried out during the course of the [kidnapping]) is formed after the victim is seized, the offense, insofar as it relates to [kidnapping] is simple [kidnapping] and not [kidnapping] for the purpose of robbery.” (People v. Bailey (1974) 38 Cal.App.3d 693, 699.)
The element of intent is generally proved with circumstantial evidence. “Intent is rarely susceptible of direct proof and usually must be inferred from the facts and circumstances surrounding the offense.” (People v. Pre (2004) 117 Cal.App.4th 413, 420.) Evidence to support the element of specific intent may be shown by a defendant’s conduct, including any words the defendant may have spoken, and by the circumstances surrounding the commission of the act. (People v. Craig (1994) 25 Cal.App.4th 1593, 1597.)
Analysis
Appellant contends his intent to rob Raymond was an “afterthought,” formed after the kidnap commenced. In support of this claim, he notes that “[i]t was not until after the sexual bantering and the men getting upset, that appellant pulled the knife and demanded [Raymond’s] property.” He argues further, “If appellant had intended to rob [Raymond] at the beginning, he would have done so. [Raymond] would not have been driven first to Theresa’s, then allowed to leave the car with his wallet and watch, then allowed to return to the car, then taunted about being gay, threatened with torture, and only then being robbed of his wallet and watch at knife-point.”
Appellant’s account of his thought processes is plausible, but the trier of fact was not compelled to accept it. From the evidence that appellant asked Raymond to leave his backpack in the car and that it appeared to Raymond appellant was about to drive off with it, the juvenile court reasonably could have inferred that appellant had designs on Raymond’s property before the car left Theresa’s house. And the court reasonably could have concluded further that appellant decided at that time (1) to steal Raymond’s watch, wallet and anything else Raymond had on his person in addition to or instead of the backpack, and (2) that his chances of taking such items from Raymond would increase if he (appellant) could cut off any potential escape route by waiting until the car was moving and the doors were locked before pulling a knife on his victim. Thus, substantial evidence supports the juvenile court’s implied finding that appellant formed the intent to rob his victim well before the kidnapping commenced. As indicated above, it is of no moment that “‘“the circumstances might also be reasonably reconciled with a contrary finding ....”’” (People v. Bean, supra, 46 Cal.3d at p. 933.)
Lesser Included Offense
Appellant contends simple kidnapping is a necessarily lesser included offense of kidnap-robbery and therefore, if appellant’s adjudication of kidnap-robbery stands, his adjudication of simple kidnapping must be reversed. The People concede these points, and we agree. (People v. Jackson (1998) 66 Cal.App.4th 182, 189 [simple kidnapping is a necessarily lesser included offense of kidnap-robbery]; People v. Pearson (1986) 42 Cal.3d 351, 355 [“multiple convictions may not be based on necessarily included offenses”].) Accordingly, we will reverse appellant’s simple kidnapping adjudication.
DISPOSITION
Appellant’s adjudication of simple kidnapping in violation of section 207, subdivision (a) is reversed. In all other respects, the judgment is affirmed.