Opinion
B164634.
11-25-2003
THE PEOPLE, Plaintiff and Respondent, v. TREMAINE MICKAEL BAILEY, Defendant and Appellant.
John L. Staley, 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, Margaret E. Maxwell, Supervising Deputy Attorney General, and Marc A. Kohm, Deputy Attorney General, for Plaintiff and Respondent.
Defendant and appellant, Tremaine Mickael Bailey, appeals from the judgment entered following his conviction, by jury trial, for robbery (4 counts), carjacking, and kidnapping to commit robbery (3 counts), with arming, firearm use, and prior serious felony conviction findings (Pen. Code, §§ 211, 215, 209, 12022, 12022.5, 12022.53, 667, subds. (a)-(i)). Sentenced to a state prison term of 95 years to life, he contends there was trial error. The People contend there was sentencing error.
All further statutory references are to the Penal Code unless otherwise specified.
The judgment is affirmed as modified.
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.
1. Prosecution evidence.
a. The movie theater robbery.
On January 16, 2001, Cesar Corleto was working as the facilities manager for an AMC movie theater in Westwood. Adriana Morales was working in the box office and Michelle Ombao was working behind the concession stand. At 10:30 p.m., Corleto was closing out the cash registers, which involved "collecting the funds from each station and taking them upstairs" to the cash room. He had already closed out the box office cash register, and he was in the process of closing out the registers at the food concession stand. Defendant Bailey and two other men were in the theater lobby playing video games. Patrons were permitted to use the video game machines even if they had not paid to see a movie. Ombao had been watching Bailey and his companions playing video games for about an hour, and she alerted Corleto that they had not purchased movie tickets. As a result, Corleto was keeping an eye on them because he thought they might be planning to sneak into one of the shows.
This AMC theater was a multi-plex, apparently consisting of four screens.
When Bailey starting walking across the lobby toward the screening rooms, Corleto "called out to him to find out if he had a ticket stub." Bailey pulled out a semi-automatic pistol, chambered a round, pointed the gun at Corleto and "[m]ade a comment to the effect of it was a robbery." Corleto thought Bailey just wanted the cash register receipts, so he motioned for Bailey "to take what was in front of me." But Bailey said, "No. Take me to the safe[.]" Bailey then jumped over the concession counter. Meanwhile, Baileys two companions gathered up Morales and Ombao.
Corleto was walked to the other end of the concession stand where there was an employees-only staircase leading up to the second floor. He had to unlock the door opening onto this staircase. Then he, Morales, and Ombao were forced by Bailey and his companions to go up the stairs to the second floor, where they walked down a long hallway, past two projection rooms, to reach the cash room. Corleto unlocked the door to the cash room. All three victims were taken inside. Bailey ordered Corleto to open the safe. The robbers took $10,000 from the safe and loaded the money into a backpack they had brought with them. The victims were ordered to lie on the floor, where they were tied up with telephone cords ripped from the wall. One of the robbers went through Corletos pockets, taking his keys and his wallet. The robbers then fled.
The robbery had been recorded by the theaters video surveillance cameras, and Baileys fingerprints were found on one of the video game consoles in the lobby.
b. Carjacking.
On February 13, 2001, Johannes Van Zyl parked his car in front of his home in Santa Monica. Bailey and a woman approached, pointed something that looked like a gun at Van Zyl, and demanded his money and car keys. Van Zyl gave them his keys and $80. Bailey and the woman drove away. Bailey was arrested driving Van Zyls car on February 18, 2001.
2. Defense evidence.
On January 9, 2001, Bailey saw Dr. Byron Williams regarding pain he was experiencing on the left side of his body. Bailey walked with a slight limp. Williamss physical findings were consistent with Baileys report of having previously been shot in the left hip. On February 18, 2001, after he was arrested, Bailey complained of pain in his left leg. He was taken to a doctor who prescribed a painkiller.
CONTENTIONS
1. The trial court erred by denying Baileys Wheeler motion.
2. The trial court violated Baileys right to a public trial.
3. The trial court erred by refusing to excuse a juror during deliberations.
4. There was insufficient evidence to support the convictions for kidnapping to commit robbery.
5. The trial court erred by not imposing state and county penalty assessments.
DISCUSSION
1. Wheeler motion was properly denied .
Bailey contends the trial court erred by ruling the prosecutor had not exercised race-based peremptory challenges in violation of People v. Wheeler (1978) 22 Cal.3d 258. This claim is meritless.
"A party may not use peremptory challenges to remove prospective jurors solely on the basis of group bias. Group bias is a presumption that jurors are biased merely because they are members of an identifiable group distinguished on racial, religious, ethnic, or similar grounds." (People v. Fuentes (1991) 54 Cal.3d 707, 713.) If the trial court finds a prima facie case of group discrimination has been demonstrated, the burden shifts to the other party to explain why the peremptory challenge was not predicated on group bias. (People v. Wheeler, supra, 22 Cal.3d at p. 281.) An appellate court gives great deference to a trial courts ruling on the proffered explanation in reliance "on the good judgment of the trial courts to distinguish bona fide reasons for such peremptories from sham excuses belatedly contrived to avoid admitting acts of group discrimination." (Id. at p. 282.) The trial court must be satisfied the prosecutors explanation is genuine. " `This demands of the trial judge a sincere and reasoned attempt to evaluate the prosecutors explanation in light of the circumstances of the case as then known, his knowledge of trial techniques, and his observations of the manner in which the prosecutor has examined members of the venire and has exercised challenges for cause or peremptorily . . . . " (People v. Fuentes, supra, 54 Cal.3d at p. 718.) Where "the record reflects a conscientious determination by the trial court that the prosecutor predicated his peremptory challenges . . . upon his perception of an individual bias on the part of each juror, and not on the basis of group bias . . . [t]he record . . . fails to support defendants claim of Wheeler error." (People v. Sims (1993) 5 Cal.4th 405, 431-432.)
Bailey made his initial Wheeler motion after the prosecutor exercised nine peremptory challenges against three African-Americans, five whites and one Asian. The composition of the jury at that point was four African-Americans, five whites, two Asians and one Hispanic. Ruling that a prima facie case of Wheeler error had been made out, the trial court asked the prosecutor to justify his challenges of the African Americans. As to prospective juror #6727, the prosecutor said, "My view on her is she doesnt have a whole lot of life experience. She appeared to me to be very sheltered. [¶] I would like to point out to the court that, of the challenges that I exercised, seven [prospective jurors] were single, and almost all of them appeared to be very young. And [juror #6727] seemed a little strange to me truthfully. There was just something a little odd about her." "[S]he was young, and she was single. And she was dressed a bit — I dont want to be offensive here, but she was dressed very casually when she came in yesterday in a way that concerned me somewhat." Asked to amplify on his adjective "odd," the prosecutor said, "There just seemed to be something a little strange. She seemed a little slow. And she didnt quite — I got a bad vibe from her."
The prosecutor said prospective juror #9300 had been excused because she said the prosecutions burden of proof was "beyond a shadow of a doubt." Defense counsel objected that "most people [who] arent involved in the legal system think `shadow of a doubt until they are advised otherwise, and it is common to make that mistake," but the prosecutor pointed out juror # 9300 made this remark after the trial court had already explained the proper burden of proof.
Prospective juror #5935 worked at a childrens mental health center. The prosecutor said, "As a general rule, I dont like jurors who work with children. And by the way, the first individual that I kicked [a white woman] was a third grade teacher. I find that sometimes they may be a little more sympathetic to the defense. They might be a little more left-leaning. [¶] The fact that she was a mental health child counselor said to me that perhaps she might be willing to give Mr. Bailey a break because he had a tough whatever. And especially in this case when there is going to be testimony about Mr. Baileys ailing hip, I was concerned that she might be sympathetic to that." The prosecutor asserted that "other than the `shadow of a doubt lady, . . . all of them pretty much have been young and single and dont seem to have a lot of life experience. And certainly that was a primary factor for me in exercising most of my peremptory challenges."
The trial court agreed juror #6727 "was young and single," and that it was "certainly an inference that one could draw that is not just made up or speculative that she appeared to be sheltered, you know, her situation. [¶] She may not have a lot of life experiences." The trial court also agreed she had been "dressed different than other jurors," although it remarked this might have been because she was young. The trial court concluded this peremptory challenge had been "completely race-neutral and based upon reasonable factors that one may reasonably look at."
Regarding prospective juror #9300, the trial court commented that, having presided over some 250 trials, "I can only remember two times where a juror has used that phrase, `beyond a shadow of a doubt. " "[H]er answer was clearly incorrect. It is not `beyond a shadow of a doubt. Again, I think the prosecutor [felt] that, even though if somebody can be rehabilitated — `Oh, I didnt understand — you know, if that is the perception that they had beforehand, that, again, may be something that could carry over into the evidence." The trial court concluded this challenge was "not some specious, made-up thing, just trying to grasp at straws and making up things," that it had been "a completely race-neutral decision" and "a proper challenge."
As for prospective juror #5935, the trial court noted it was not improper for the prosecutor to believe that people who work with children and in the mental health area might tend to be more liberal. In addition, this juror might be inclined to be sympathetic to the medical doctor who was going to testify for Bailey. "And, again, I dont see that these are just made-up reasons. I think they are legitimate."
The Wheeler motion denied, jury selection continued. After the prosecutor excused another African-American woman, Bailey renewed his Wheeler motion. At that point, the jury still consisted of four African-Americans, five whites, two Asians and one Hispanic. Asked for a justification, the prosecutor said the juror "had some kind of a turban thing on her head that I found a little strange. And after we came back, she had been sitting with her eyes closed as this process has gone on just in the last ten, fifteen minutes. [¶] The biggest reason though is the fact that she indicated that Ms. White [the defense attorney] looked familiar to her in a good way and she seemed to like Ms. White a lot. . . . [¶] . . . [S]he is clearly predisposed to like Ms. White, and that could spill into wanting to go Ms. Whites way on the case." The trial court said it, too, had noticed the juror sitting with her eyes closed. Additionally, the juror "claimed that she knew Ms. White. . . . She said that. She thought she knew you from either a social setting or somehow." The trial court then rejected the renewed Wheeler motion: "[A]gain, I dont find that [the prosecutor] . . . is just making up reasons for [sic] an impermissible basis. I find that her reasons are based and borne by the record. They are race-neutral."
On appeal, Bailey argues "the trial court committed error by accepting the implausible excuses" unrelated "to the jurors ability to give the prosecution a fair trial." But hunches and gut feelings constitute valid justifications for peremptory challenges, as long as such subjective reasons are not sham excuses masking impermissible group bias. "The proper focus . . . is on the subjective genuineness of the race-neutral reasons given for the peremptory challenge, not on the objective reasonableness of those reasons. [Citation.] So, for example, if a prosecutor believes a prospective juror with long, unkempt hair, a mustache, and a beard, would not make a good juror in the case, a peremptory challenge to the prospective juror, sincerely exercised on that basis, will constitute an entirely valid and nondiscriminatory reason for exercising the challenge. [Citation.] . . . Nor does it matter that the prosecutor, by peremptorily excusing men with long unkempt hair and facial hair on the basis that they are specifically biased against him or against the Peoples case or witnesses, may be passing over any number of conscientious and fully qualified potential jurors. All that matters is that the prosecutors reason for exercising the peremptory challenge is sincere and legitimate, legitimate in the sense of being nondiscriminatory. `[A] "legitimate reason" is not a reason that makes sense, but a reason that does not deny equal protection. [Citations.]. [Citation.]" (People v. Reynoso (2003) 31 Cal.4th 903, 924.) "Since the trial court was in the best position to observe the prospective jurors demeanor and the manner in which the prosecutor exercised his peremptory challenges, [its] implied finding, that the prosecutors reasons for excusing [a prospective juror], including the demeanor-based reason, were sincere and genuine, is entitled to `great deference on appeal. [Citations.]" (Id. at p. 926; see Purkett v. Elem (1995) 514 U.S. 765, 766 ["dont like the way they looked, with the way the hair is cut" and "the mustaches and the beards look suspicious to me" constituted race-neutral explanations]; People v. Wheeler, supra, 22 Cal.3d at pp. 275-276 [jurors silent looks or gestures that alienate one side or the other constitute non-discriminatory reason].)
Here, the prosecutors explanations, as evaluated by the trial court, fell well within the ambit of the general rule allowing sincere, purely subjective reasons to justify peremptory challenges. In addition, some of the prosecutors reasons have been specifically approved. (See, e.g., People v. Reynoso, supra, 31 Cal.4th at p. 925 [prosecutor could legitimately challenge juror "whose occupation, in the prosecutors subjective estimation, would not render him or her the best type of juror to sit on the case"]; id. at pp. 925 [that juror "was not paying attention to the proceedings" or "sufficiently involved in the jury selection process to make a good juror" were valid reasons]; People v. Sims, supra, 5 Cal.4th at p. 430 [young people do not constitute cognizable class for Wheeler purposes]; People v. Landry (1996) 49 Cal.App.4th 785, 790-791 [race-neutral factors included job in youth services agency and background in psychiatry or psychology]; People v. Perez (1996) 48 Cal.App.4th 1310, 1315 [unmarried and social services job constituted valid reason to exclude]; People v. Barber (1988) 200 Cal.App.3d 378, 394 [proper to challenge kindergarten teacher based on belief teachers are generally liberal and less prosecution-oriented].)
The record demonstrates the trial court made a conscientious evaluation of the prosecutors justifications. There was no error in denying the Wheeler motion.
2. Right to public trial not violated.
Bailey contends the trial court erred when, in the middle of jury deliberations, it ordered two of his relatives to stay away from the courthouse until the verdict was returned. This claim is meritless.
After Corletos direct examination, the trial court excused the jurors for lunch and then admonished Baileys mother, Laverne Cobbs, for making faces while court was in session. The trial court told her, "[I]t is important that you and your family not have any contact with the jurors." When the parties returned to the courtroom after lunch, the prosecutor told the trial court she believed Corleto had been threatened. The prosecutor explained she became suspicious because Corleto had been unexpectedly tentative when asked to identify Bailey. She reported that Corleto, asked if he or his family had been threatened, first answered, "Well, no, no, no, no," but then began crying. The trial court said the parties had been warned not to contact any witnesses, and noted Cobbs had been "making facial expressions" in the courtroom that morning. The trial court gave Cobbs another warning, saying if she did it again it would bar her from the courtroom. The court did not otherwise pursue the Corleto matter.
After deliberations began, the trial court informed the parties one of the jurors had complained Baileys family "was looking at her or bothering her in some manner." Juror No. 8, an African-American woman, was brought into the courtroom. She said that, during the previous week, two of the people attending the trial had sat down near her in the cafeteria and "were watching" her. They did not say anything to her. The next day, the same two people sat behind her in the cafeteria. Again, they did not say anything. On the day after that, while riding the bus to the courthouse, Juror No. 8 saw another man who had been attending the trial get on the same bus. He did not say anything to her. Then today, one of the men had "stared [her] down" in the cafeteria. Apparently the people this juror was talking about were Baileys mother and his brothers. Although defense counsel argued there was no showing of actual misconduct by Baileys relatives, the trial court was "completely satisfied" the familys actions had been intended to intimidate the juror. Accordingly, the trial court ordered Cobbs and one of her sons to leave the courthouse, but said they could come back when the verdicts were returned. "
`Every person charged with a criminal offense has a constitutional right to a public trial, that is, a trial which is open to the general public at all times. " (People v. Catlin (2001) 26 Cal.4th 81, 160.) "The central aim of a criminal proceeding must be to try the accused fairly, and `[o]ur cases have uniformly recognized the public-trial guarantee as one created for the benefit of the defendant. [Citation.] [¶] ` " `The requirement of a public trial is for the benefit of the accused; that the public may see he is fairly dealt with and not unjustly condemned, and that the presence of interested spectators may keep his triers keenly alive to a sense of their responsibility and to the importance of their functions. . . . " [Citations.] [¶] In addition to ensuring that judge and prosecutor carry out their duties responsibly, a public trial encourages witnesses to come forward and discourages perjury." (Waller v. Georgia (1984) 467 U.S. 39, 46 , fn. omitted.) Bailey asserts this "right to a public trial has been broadly interpreted to apply to all stages of the criminal process," and that it was violated when the trial court excluded his mother and brother without conducting "an adequate inquiry to determine if [their] exclusion . . . was warranted." However, as we said in People v. Teitelbaum (1958) 163 Cal.App.2d 184, the right to a public trial does not extend to all aspects of a trial.
Teitelbaum rejected a claim that holding sidebar conferences violated the defendants right to a public trial. "We find no merit whatsoever in the contention that the trial was not a public one. No member of the public was barred from the courtroom or from the proceedings had during the time the jury was entitled to be present and to itself hear the proceedings. . . . [T]he matters as to which the conferences were had between court and counsel, were matters which could not have been properly heard in the presence of the jury. In each instance the subject matter of the conferences between court and counsel was a question or questions of law, and not matters advanced for consideration of the triers of fact. [¶] The trial of the action, so far as the term `public trial is concerned, consists in the proceedings for the impanelment of the jury, the opening statements of counsel, the presentation of evidence, the arguments, the instructions to the jury and the return of the verdict, and from none of these proceedings was the public excluded." (Id. at pp. 206-207, italics added.) As State v. Lehnherr (Or.Ct.App. 1977) 569 P.2d 54, 56-57, italics added, stated: "The right to a public trial has never been conceived to encompass the deliberations of the jury. To the contrary, the long standing common law tradition has been to encourage and to protect the secrecy of the jury deliberations. That tradition was borne out of a concern to protect the integrity of the jury system."
Bailey had a public trial throughout the entire proceedings. Excluding spectators while the jury was deliberating did not interfere with their observation of any part of the trial that was otherwise open to the public. Although Bailey argues his right to a fair trial was prejudiced because the exclusions "telegraphed to the jury the trial courts concerns about the alleged violent nature of appellants associates," the record demonstrates the jury was unaware these people had been excluded.
Both Juror No. 8 and the foreperson were questioned outside the jurys presence, and the exclusions were not ordered until after both Juror No. 8 and the foreperson had returned to the jury room. Hence, none of the jurors knew of the exclusions.
3. Trial court did not err by refusing to excuse Juror No. 8.
Bailey contends the trial court erred by not discharging Juror No. 8 after she complained about the conduct of his relatives. This claim is meritless.
As explained above, after deliberations began Juror No. 8 complained Baileys relatives had been bothering her. When the trial court asked if her ability to deliberate had been affected, Juror No. 8 said no. She said that although the incidents had raised a safety concern, she was confident she would base her decision on the evidence. The trial court then had the jury foreperson brought into the courtroom. The foreperson said Juror No. 8 had mentioned the incidents and appeared to be afraid, but she also appeared to be evaluating the case based solely on the evidence and she appeared to be interacting properly with the rest of the jury during deliberations.
"The Court: Okay. Now, as a result of this, has this affected your ability to deliberate in this case? [¶] Juror No. 8: No, what it is is more so my safety coming to and from here because I do catch the bus, and I have seen the other young man on the bus that I catch here every day that I have been coming here, yes. [¶] The Court: Okay. Let me ask you this. Has it affected your ability to deliberate properly in this case? [¶] Juror No. 8: No. [¶] The Court: And you can base your decision, whatever it is, based on the evidence you heard in this case? [¶] Juror No. 8: Yes. [¶] The Court: And do you have any reason in your mind to believe that you cant properly uphold your functions as a juror in this case? [¶][¶] Juror No. 8: No problem. [¶] The Court: Okay. So you just wanted to let us know this. [¶] Juror No. 8: Yes."
"The Court: Does she appear to be scared in any way in your mind from what you have seen? [¶] The Foreperson: . . . [Y]es, she did appear to be afraid. [¶] The Court: All right. Is there anything that she said though in her deliberations with the other jurors that would in any way lead you to believe she is not going to evaluate this case based on the evidence presented here? [¶] The Foreperson: No." "The Court: Has she ever voiced any concerns about `Well, I dont know if I can vote, or anything like that? `I am scared, or said anything like that? [¶] The Foreperson: No. [¶] The Court: So everything you have seen then, she appears to be acting as a normal juror? [¶] The Foreperson: Yes."
After the trial court excluded Baileys mother and brother from the courtroom, defense counsel asked the court to discharge Juror No. 8. The trial court refused to do so, saying: "She didnt appear to me to be nervous in any way or scared or anything of that nature. She just matter of factly told me what happened. She thought it was appropriate being a good juror, letting people know." "[F]rom the foreperson, who is in charge of deliberations, clearly, there appears to be everything is in proper order. And then from the juror herself indicates everything is in order. [¶] I dont see that I have any legal grounds whatsoever at this point to suggest that she cant continue properly." "[A]gain, I see absolutely no legal reason, based on everything, . . . to excuse her at this point. There is not a scintilla of evidence of any kind to suggest that she will not properly do her job as a juror."
We disagree with Baileys claim the trial court erred by making this ruling.
"If at any time, whether before or after the final submission of the case to the jury, a juror dies or becomes ill, or upon other good cause shown to the court is found to be unable to perform his duty . . . the court may order him to be discharged and draw the name of an alternate . . . ." (§ 1089.) " `Before an appellate court will find error in failing to excuse a seated juror, the jurors inability to perform a jurors functions must be shown by the record to be a "demonstrable reality." The court will not presume bias, and will uphold the trial courts exercise of discretion on whether a seated juror should be discharged for good cause under section 1089 if supported by substantial evidence. [Citation.] " (People v. Farnam (2002) 28 Cal.4th 107, 141.)
In Farnam, during the trial of a defendant charged with using a knife to rob and kill a woman, four female jurors were returning to court when they were confronted by a man with a knife. The man knocked down juror Violet J. and took her purse. Questioned by the trial court about the incident, Violet J. said "she felt `shook up and `not coherent enough to drive home, [but] she believed she could listen to the testimony and pay attention to the case." (People v. Farnam, supra, 28 Cal.4th at p. 139.) She "admitted that the experience was very terrifying, but indicated she did not think it would affect her ability to be impartial in a case involving an allegation of robbery." (Id. at p. 140.) "At the conclusion of the hearing, the trial court declined to discharge the four jurors," finding they "appeared to be `calm, cool and collected and able to separate the purse-snatching incident from defendants case." (Ibid.)
Farnam held: "Although the record amply supports the trial courts ruling, defendant points to Violet J.s frank statement that `still things come into your mind of what happened to you and you can only try to visualize what happened to the other person. Violet J.s comment, however, appeared to reveal her honesty in conveying what someone in her position might feel, rather than a bias against defendant or an inability to fulfill her duties as a juror. Given the balance of Violet J.s responses, the trial courts observation of her demeanor, and the minimal similarity between the purse-snatching incident and the crimes involving [defendants victim], the trial court was not bound to find that Violet J. had formed emotional and psychological bonds with the victim such that she would be unable to remain objective during defendants trial." (Id. at p. 142.)
Here, too, there was substantial evidence to support the trial courts determination not to discharge Juror No. 8. Although she complained that Baileys relatives had been bothering her, she did not report any overt threats, just silent manifestations of hostility. She had been consistent in her stated belief she could be fair and impartial, and the trial court, which had the opportunity to observe her demeanor, found her credible. (See People v. Beeler (1995) 9 Cal.4th 953, 989 [in determining not to discharge juror, "the trial court was in the best position to observe the jurors demeanor"]; Perez v. Marshall (9th Cir. 1997) 119 F.3d 1422, 1427 ["trial court was in a superior position to observe [jurors] physical appearance and demeanor and thereby to determine her ability to continue deliberating"].) Nothing in the record shows as a demonstrable reality that Juror No. 8 was unable to perform her duties.
4. Sufficient evidence of aggravated kidnapping.
Bailey contends there was insufficient evidence to support his convictions for aggravated kidnapping arising out of the movie theater robberies. This claim is meritless.
Section 209, subdivision (b), provides: "(1) Any person who kidnaps or carries away any individual to commit robbery, rape, spousal rape, oral copulation, sodomy, or sexual penetration in violation of Section 289, 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 two parts of the test set forth in subdivision (b)(2) " `are not mutually exclusive, but interrelated. [Citation.] [¶] In determining `whether the movement is merely incidental to the [underlying] crime . . . the jury considers the "scope and nature" of the movement. [Citation.] This includes the actual distance a victim is moved. However, we have observed that there is no minimum number of feet a defendant must move a victim in order to satisfy the first prong. [Citations.] [¶] [The second aspect] includes consideration of such factors as the decreased likelihood of detection, the danger inherent in a victims foreseeable attempts to escape, and the attackers enhanced opportunity to commit additional crimes. [Citations.] The fact that these dangers do not in fact materialize does not, of course, mean that the risk of harm was not increased. [Citations.] " (People v. Martinez (1999) 20 Cal.4th 225, 233.) The increased risk may be related to either physical or psychological harm. (People v. Nguyen (2000) 22 Cal.4th 872, 886.)
"[I]ncidental movements are brief and insubstantial, and frequently consist of movement around the premises where the incident began. (See, e.g., People v. Stanworth (1974) 11 Cal.3d 588, 597-600 . . . [25 feet from road to open field]; People v. Mutch (1971) 4 Cal.3d 389, 397-399 . . . [30 to 40 feet from one room to another in business establishment]; People v. Williams (1970) 2 Cal.3d 894, 902 . . . [around gas station premises]; People v. Daniels [(1969) 71 Cal.2d 1119,] 1122-1125 [5 to 30 feet within victims own homes]; Cotton v. Superior Court [(1961) 56 Cal.2d 459,] 463-464 [dragging an assault victim 15 feet insufficient to support kidnapping].) By contrast, relatively short distances have been found not to be incidental where the movement results in a substantial change in `the context of the environment. (See, e.g., People v. Rayford [(1994) 9 Cal.4th 1,] 23 [105 feet at night from parking lot to less visible location next to wall in adjacent empty lot not incidental to intended rape]; People v. Jones (1999) 75 Cal.App.4th 616, 629-630 . . . [25 to 40 feet across a school parking lot and into the victims own car not incidental to intended robbery, where defendant intended to drive away but victim immediately escaped]; People v. Salazar (1995) 33 Cal.App.4th 341, 347 . . . [29 feet from outside motel room door, through the room, and into a bathroom not incidental to intended sexual assault].)" (People v. Diaz (2000) 78 Cal.App.4th 243, 247.)
In Rayford, the defendant moved the victim 105 feet in an attempt to rape her. This was held to be a substantial distance in the circumstances. "Here, Elizabeth was forcibly moved 105 feet at night from the parking lot of a closed store to the other side of a wall located at the edge of the lot. She was forced to sit against the wall and beside a small tree, 34 feet from the street. The wall blocked the view of any passersby from the parking lot side, and the tree and the bushes at the end of the wall limited detection of Elizabeth from the street. While the area beyond the wall bordered on a two-lane street, it was undeveloped, and made up of dirt and rocks. Finally, while it was light enough for Elizabeth to observe defendants actions in this area, and for defendant to be able to see the blood on Elizabeths underwear, the two were located right next to each other. There is no evidence as to whether they were detectable from the street. [¶] The jury could reasonably have concluded that Elizabeths forcible movement for this distance and under these circumstances was not merely incidental to the attempted commission of rape, and substantially increased her risk of harm." (Id. at p. 23.)
In an apparent attempt to escape the force of Rayfords analysis, Bailey argues his aggravated kidnapping convictions must be reversed because his victims "were moved a distance of less than 100 feet within the building where the robbery occurred. The evidence was insufficient to prove that the victims were moved a substantial distance or that the movement . . . increased their risk of harm." (AOB 11) (Italics added.) We disagree with both Baileys representation of the factual record and his legal conclusion.
The trial evidence clearly shows that all three victims were moved farther than 100 feet. The parties stipulated to a trial exhibit showing a diagram of the theater. This diagram recorded the following measurements: the food concession stand was 32 feet, 7 inches long; from the top of the stairs to the door of the cash room was 77 feet; the cash room itself was 10 feet long, and the safe was positioned on a back wall, 10 feet from the door. While these measurements alone come to almost 120 feet, this calculation omits the distance the victims must have traveled from the edge of the concession stand over to the staircase leading from the lobby to the second floor, and then all the way up that staircase. The diagram is a little ambiguous on this point, but it appears this distance must have been somewhere between 10 and 20 feet.
The evidence showed the victims were taken from very close to one end of the concession stand area, all the way over to the other end where the employees-only staircase was located.
Taking even the smaller number, and even excluding whatever distances the victims were moved around inside the cash room, it appears that Ombao was moved more than 120 feet, while Corleto was moved more than 130 feet. Morales, who had apparently first been brought by the perpetrators from the box office to the concession stand, and then up the stairs to the cash room, was probably moved more than 150 feet.
Moreover, the scope and nature of these movements was such that they were not merely incidental to the robberies. Baileys victims started out in a semi-public place. Because films were still being shown, patrons might walk through the theater lobby at any moment. Bailey and his accomplices moved the victims away from this semi-public space, and into a completely private space, by taking them up the employee-only staircase and into the cash room. This movement constituted a "substantial change `in the context of the environment. " (People v. Diaz, supra, 78 Cal.App.4th at p. 247.)
That is one reason why Baileys reliance on People v. Mutch, supra, 4 Cal.3d 389, is misplaced. The victims movement in that case into an adjacent safe room during a robbery apparently involved no such significant border crossing because the context was the robbery of a business office at 9:30 p.m. (Id. at p. 397.)
The movement decreased the likelihood the perpetrators would be detected, enhanced their ability to commit additional crimes, and increased the risk of harm to the victims. Indeed, Corleto testified that when the victims were ordered to get down on the floor of the safe room, he did not comply right away because he was concerned about his safety. He was worried he might "be kicked or maybe even shot at," but then he complied because he thought that if he didnt "it could be worse." While he was on the floor, one of the robbers (Ombao testified it was Bailey) made a remark about an old gang tattoo Corleto had on his hand. This scared Corleto so much he later told police he thought he was going to be executed because the robbers thought he was still in a gang.
Bailey relies on People v. Hoard (2002) 103 Cal.App.4th 599, in which a divided panel found insufficient evidence of aggravated kidnapping where Hoard went into a jewelry store, displayed a gun, demanded a key to the jewelry cases, and ordered the two employees to move some 50 feet into a back office. Hoard tied the employees up, went back out front and started removing jewelry from the display cases. When customers came into the store, Hoard told them it was closed for maintenance or inventory. The Hoard majority concluded: "Confining the women in the back office gave defendant free access to the jewelry and allowed him to conceal the robbery from any entering customers who might have thwarted him. Defendants movement of the two women served only to facilitate the crime with no other apparent purpose. Considering the particular circumstances of this crime, we conclude it was `merely incidental to the robbery to confine the women in the back of the store." (Id. at p. 607, fns. omitted.)
Baileys reliance on Hoard is misplaced. One of "the particular circumstances of [the] crime" was that the victims had been moved only 50 feet. The victims here were moved between two and three times that distance. Moreover, as the dissent pointed out, "the majority concludes that the movement did not `substantially increase the risk of harm " to the jewelry store employees, although "section 209 does not require that the increase in risk be substantial." (Hoard, supra, 103 Cal.App.4th at pp. 614-615 [dissenting opinion].) As the dissent also noted, one of the definitions used by the majority as the correct meaning of "incidental" was "nonessential," whereas our Supreme Court has specifically said that "[a]lthough one definition of `incidental is `nonessential (see Websters New Internat. Dict. (3d ed.)), that manifestly was not the sense in which the word `incidental was used in Daniels." (In re Earley (1975) 14 Cal.3d 122, 130, fn. 11.)
People v. Daniels, supra, 71 Cal.2d 1119.
Finally, even if purely facilitating movement were the only relevant factor, the two cases are still different. Hoard involved a lone perpetrator whose plan required him to imprison the jewelry store employees out of sight while he pretended to work there himself. Bailey had two accomplices, so there was no need to herd Ombao and Morales all the way up to the cash room. It would have been quite sufficient to have them remain just inside the employee-only door, at the foot of the staircase, with one or two of Baileys accomplices, while Corleto was taken up to unlock the safe. And while it might have been necessary to take Corleto upstairs to unlock the safe, there was no need to take him up there to steal his wallet and keys.
There was sufficient evidence to support the aggravated kidnapping convictions.
5. Trial court failed to impose penalty assessments.
The People contend the trial court erred by failing to include appropriate penalty assessments in connection with a fine it imposed under section 1202.5. This claim has merit.
Because Bailey was convicted of robbery and carjacking, the trial court ordered him to pay a $10 fine pursuant to section 1202.5. This fine is not reflected in the abstract of judgment. Moreover, imposition of this fine requires imposition of an additional $10 state penalty under section 1464, and an additional $ 7 county penalty under Government Code section 76000. (See People v. Sierra (1995) 37 Cal.App.4th 1690, 1694, fn. 5.) "Unless the Legislature has otherwise provided, . . . penalty assessments under sections 1464, and Government Code section 76000 are mandatory." (People v. Martinez (1998) 65 Cal.App.4th 1511, 1521.)
"Government Code section 76000 creates a mandatory levy in dollars prescribed by law that must be imposed pursuant to Penal Code section 1464 `upon every fine, penalty, or forfeiture. (Italics added.) . . . [¶] Furthermore, the imposition of a penalty assessment pursuant to Penal Code section 1464, subdivision (a) is mandatory. Trial courts are given discretion under subdivision (d) of section 1464 not to impose the penalty assessment where an inmate remains in prison and the payment of the assessment `would work a hardship on the person convicted or his or her immediate family. Otherwise, the trial court has an obligation to impose a penalty assessment. [Citation.]" (People v. Sierra, supra, 37 Cal.App.4th at p. 1695.)
The trial court erred by not imposing these penalty assessments. We will order the judgment modified accordingly, and we will direct the trial court to correct the abstract of judgment.
DISPOSITION
The sentence is ordered modified to include the required penalty assessments. As modified, the judgment is affirmed. The clerk of the superior court shall prepare a corrected abstract of judgment and to forward it to the Department of Corrections.
We concur: CROSKEY, J. and KITCHING, J.