Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County, John A. Torribio, Judge. Los Angeles County Super. Ct. No. VA088946
Franklin Peters, Jr., under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Scott A. Taryle and Tannaz Kouhpainezhad, Deputy Attorneys General, for Plaintiff and Respondent.
KITCHING, J.
D’Ron Botts appeals from the judgment entered following his convictions by jury on seven counts of second degree robbery (Pen. Code, § 211; counts 1–3, 7, 9, 11 & 12) with findings as to three such counts that he personally used a firearm (Pen. Code, § 12022.53, subd. (b); counts 7, 9 & 11), five counts of false imprisonment by violence (Pen. Code, § 236; counts 4-6, 13 & 14) with findings as to count 13 that he personally used a firearm (Pen. Code, § 12022.53, subd. (b)), three counts of kidnapping to commit robbery (Pen. Code, § 209, subd. (b)(1); counts 8, 10 & 16) with a finding as to count 8 that he personally used a firearm (Pen. Code, § 12022.53, subd. (b)), and count 16 – cutting a utility line (Pen. Code, § 591), with a court finding that he suffered a prior felony conviction (Pen. Code, § 667, subd. (d)). The court sentenced him to prison for two consecutive terms of life with the possibility of parole, plus 30 years.
FACTUAL SUMMARY
1. People’s Evidence.
a. Crimes At Golf N’ Stuff.
(1) The Testimony of Anna Godinez.
Viewed in accordance with the usual rules on appeal (People v. Ochoa (1993) 6 Cal.4th 1199, 1206), the evidence established that on August 4, 2004, Anna Godinez worked at Golf N’ Stuff in Norwalk. Godinez testified as follows. The business had an arcade and a miniature golf course. At 10:30 p.m., Godinez was inside the arcade, working at the cashier’s counter at the golf course. An African-American man wearing dreadlocks approached Godinez. The dreadlocks appeared to be a wig. The man, later identified as appellant, was wearing sunglasses, a Jamaican-type multicolored hat, something like a “baby-blue grayish outfit,” and white shoes. The outfit was a two-piece suit.
Appellant asked to speak to the manager. A door separated the cashiers’ area from the manager’s office. Godinez went to the office and asked for Raquel Diaz, the supervisor. Diaz went to help appellant. Diaz later reentered the office, and appellant followed her inside. Diaz came back outside, went to Godinez and Adriana Gonzalez, another employee, and told them to go to the back immediately. They complied, going into the office.
After Godinez entered the office, appellant stood in the doorway between the registers and the office. The three women sat in the office and appellant closed the door. Appellant said he had a gun and they were being robbed. He also said there were two persons with him in the arcade, and one outside the business. Appellant threatened to kill the women if they did not do what he said.
Appellant retrieved a bag, gave it to Diaz, and told her to empty the registers. Diaz left to do so. A couple of minutes passed from the time appellant first approached Godinez to the time Diaz got the money inside the registers. While Diaz was getting the money, appellant stood next to Godinez and Gonzalez, who were still seated. Appellant was at the office door watching Diaz, and he was equidistant between the registers and the two women in the office. After Diaz got the money, she returned to the office and gave appellant the bag containing the money.
After appellant obtained the bag, he had Diaz walked him to his car and told Godinez and Gonzalez to return to the counter and work like nothing had happened. Diaz walked with appellant outside the office, into the golf course and arcade, and out to the parking lot. Diaz was gone about three to five minutes. After she returned, she was crying.
On February 23, 2005, Los Angeles County Sheriff’s Detective Michael White showed Godinez a photographic lineup (People’s exhibit No. 2) containing six photographs. (All photograph lineups herein mentioned contained six photographs.) Godinez identified photograph No. 1 as depicting the robber. Godinez presented conflicting testimony concerning whether that identification was tentative or positive. At trial, Godinez denied that that photograph depicted the robber, and she positively identified appellant as the robber. Godinez testified that appellant appeared to be depicted in photograph No. 2. The prosecutor asked Godinez how positive she was that the robber was depicted in photograph No. 2, and Godinez indicated that now that she was looking at appellant in court, she had flashbacks and remembered. Godinez was certain at trial that appellant was the robber.
During cross-examination, Godinez testified as follows. Deputies arrived at the business shortly after the robbery, and Godinez described to them the robber as wearing sunglasses, and a brownish-black, dark-colored dreadlocks wig. The sunglasses were dark, and appellant was wearing a multicolored hat that covered only the top of his head. Appellant was inside the business for 10 to 15 minutes. He was facing Godinez for about five minutes while he was in the office.
On February 23, 2005, when Godinez selected photograph No. 1 as depicting the robber, she looked at the lineup for 30 minutes. At trial, Godinez saw appellant and was able to remember his face. During redirect examination, Godinez testified that she was not identifying appellant as the robber because he was sitting at the counsel table, but because she was certain that he was the robber.
Godinez identified People’s exhibit No. 3 as a photograph depicting appellant, Diaz, Godinez, and Gonzalez in the manager’s office when they first entered it. She identified People’s exhibit No. 4 as a photograph depicting appellant in the office at a time when he was giving instructions to the others and holding a cell phone.
(2) The Testimony of Adriana Gonzalez.
Gonzalez testified as follows. On August 4, 2004, Gonzalez saw a man, whom she later identified as appellant, sitting by himself in the miniature golf area and smoking a cigarette for perhaps 10 minutes. Later, about 10:30 p.m., Diaz called Gonzalez into the office. Godinez was already inside, appellant was standing next to her and, a couple of seconds after Gonzalez entered the office, appellant said they were getting robbed. He also said he had a gun. Diaz, Godinez, Gonzalez, and appellant were in the office. A camera was conducting video surveillance of the office at the time.
At the time of the robbery, appellant was wearing a blue, off-gray, somewhat shiny suit. He was also wearing sunglasses, a white top, white shirt, white shoes, a multicolored hat, and dreadlocks attached to the hat. Gonzalez suggested the dreadlocks were fake, and she indicated that the hat was a novelty item. Appellant made various threats and statements, gave a bag to Diaz, and told her to put money in it. She complied. Appellant was standing two or three feet from Gonzalez and Godinez when Diaz went to the registers. Appellant was watching Diaz, Gonzalez, and Godinez. Gonzalez was in the office about seven to nine minutes from the time Diaz told her to go to the office to the time Diaz finished getting the money. After appellant got the money, he told Gonzalez and Godinez to go back out and act as though nothing had happened.
On February 22, 2005, White showed Gonzalez a photographic lineup (People’s exhibit No. 8B). Gonzalez selected photograph No. 2 as depicting the robber. Gonzalez selected that photograph because of the lips and cheekbones of the face depicted. When Gonzalez selected the photograph, she was about 90 percent sure that the person depicted was the robber. At trial, Gonzalez identified appellant as the robber and said she was pretty sure, and “almost close to a hundred percent sure,” of her identification.
During cross-examination, Gonzalez testified that on August 4, 2004, Gonzalez told police that the robber was a Black man and that she was looking for someone dark-complected. Each of the persons depicted in photograph Nos. 1, and 3 through 6, of People’s exhibit No. 8B looked lighter-complected than the person depicted in People’s exhibit No. 2. When Gonzalez talked to White on February 22, 2005, she said she recognized the suspect because of his jaw, lips, and complexion. In response to a leading question by appellant, Gonzalez testified that she was looking for a dark man.
During redirect examination, Gonzalez indicated she selected photograph No. 2 because the person depicted was the robber. The fact that the other depicted males appeared to be lighter-complected than the person depicted in photograph No. 2 did not influence Gonzalez’s selection. The prosecutor asked whether, when Gonzalez described the suspect to police, she used the words male Black or dark-complected. Gonzalez replied that she said male Black.
(3) The Testimony of Raquel Diaz.
Diaz testified as follows. Godinez asked Diaz to deal with a customer who was outside the office. Diaz went to the customer, later identified as appellant, who was by himself. Appellant was wearing sunglasses, dreadlocks, a multicolored hat, and a suit. The dreadlocks appeared to be a wig.
Diaz asked how she could help appellant. Appellant replied he had a complaint and asked her to walk and talk with him. Diaz complied and, just as appellant was starting to tell her something, the two stopped in front of the office door. Appellant announced he was going to rob Diaz, told her to follow his instructions, and told her that he had a gun. However, appellant did not display a gun.
Appellant told Diaz to take him to the safe. She opened the office door and directed him to the safe inside the office. Diaz opened the safe but it contained no money. Appellant asked where the money was and Diaz replied the money was in the registers. Appellant told Diaz to go to the front and tell the women to come in the office, and Diaz complied. Appellant gave Diaz a bag, told her to get the money, and she left to do so. Appellant was standing in the door and facing Diaz when she went to get the money. Diaz later gave appellant the money, about $1,000, and, at that time, Diaz, Godinez, and Gonzalez were together with appellant in the office. About a minute or two elapsed from the time Diaz went to the cash registers to the time she gave the money to appellant. The three women were in the office a total of a couple of minutes.
On August 4, 2004, the office was being monitored by a video camera. Diaz testified People’s exhibit No. 3 depicted the three women in the office, and appellant. People’s exhibit No. 4 was a photograph of Diaz, Gonzalez, appellant, and the office.
After appellant received the money, he told the three women that he had two other people in the arcade, not to do anything dumb, and not to call the police because there were people watching them. Appellant then asked Diaz to walk him outside, and she complied. The two exited the office, walked through the arcade, exited the main arcade doors, and entered the parking lot, a total distance of about 48 feet. Once outside, appellant told Diaz there were still people inside, not to do anything dumb, and to walk back and act like nothing had happened. Diaz returned to the arcade. About three to five minutes elapsed from the time appellant told Diaz to go to the parking lot to the time she went back to the arcade. Diaz entered the back door of the arcade, locked the door, and collapsed.
On February 21, 2005, White and Los Angeles County Sheriff’s Detective Richard Alvarado showed Diaz a photographic lineup (People’s exhibit No. 13B). Diaz stared at photograph No. 2 for awhile, then selected it as depicting the robber. When Diaz selected the photograph, she was positive that the person depicted in photograph No. 2 was the person who robbed her. Diaz positively identified appellant as the robber at the preliminary hearing. At trial, Diaz identified appellant as the robber and she was very positive of her identification.
During cross-examination, Diaz testified that she described the robber to police as wearing a dreadlock wig and brown suit. The robber was wearing sunglasses. She was trying not to look at the robber’s face. Diaz glanced at the robber’s face from the nose downwards. Diaz testified this occurred in a split second.
Appellant took Diaz out to the parking lot, and she was gone about five minutes. When Diaz went outside with the robber, she was walking alongside him. Diaz testified she was looking straight ahead at the time. Diaz also testified that when she was looking at People’s exhibit No. 13B, she was looking for a dark-complected person. Diaz further testified that on February 21, 2005, as well as at trial (in June 2006), the person depicted in photograph No. 2 on People’s exhibit No. 13B looked darker to Diaz than the rest of the persons depicted in the photographic lineup.
During redirect examination, Diaz testified as follows. The photographs, People’s exhibit Nos. 3 and 4, refreshed her memory that the robber’s suit was somewhat blue. Diaz had been guessing when she said it was brown. She also recalled the suit looked somewhat gray. Diaz did not select photograph No. 2 in People’s exhibit No. 13B because it depicted the darkest male, but because it depicted the person who robbed her. During the robbery, Diaz saw the robber’s face seven or eight times and, each time, she was trying not to look at his face except for a couple of seconds. According to Diaz, nothing appellant asked her during cross-examination at trial changed her opinion as to whether appellant was the person who robbed her.
b. Crimes At Fry’s Electronics.
(1) The Testimony of Jose Montes.
About 3:45 p.m. on August 8, 2004, Jose Montes was working in the computer department at Fry’s Electronics in Industry. Appellant approached wearing sunglasses and a dreadlocks wig with a multicolored knit cloth attached to the top of the wig.
Appellant indicated to Montes that there was a situation in an aisle, and appellant offered to show Montes. The aisles were large. Montes walked with appellant to an empty aisle, then appellant displayed a .45-caliber gun.
After appellant displayed the gun, appellant asked if Montes knew what appellant meant, and asked if Montes was the manager. Montes replied he was just a salesman. Appellant told Montes to take appellant to the manager. Montes walked to the front of the store and looked for Catherine Aguirre, the manager. She was working in the front of the store. Montes initially testified that he went from the computer department to the front of the store, and that the distance was about 100 yards. After clarifying questioning by the court, Montes testified that the distance was about 100 feet.
Montes contacted Aguirre and told her a gentleman wanted to talk with her. Aguirre was busy with a customer and told Aguirre to tell appellant to wait. Montes and appellant waited about 10 minutes.
Appellant then went to Aguirre, announced a robbery, and displayed a gun. When appellant spoke to Aguirre, Montes was behind appellant. Appellant subsequently said, “Let’s go to the office.” The office was about 50 feet from the front of the store. Appellant made Aguirre and Montes go to the office. The office was open to employees only, and a small hallway separated the front of the store from the office.
Appellant made Montes and Aguirre enter the office with appellant. Cathy Petrison, David Gutierrez, and Patrick Kudo were already inside the office. Petrison was the store’s loss prevention agent. Kudo was a supervisor.
Appellant closed the door, as a result of which the office’s occupants were not visible to the public. Appellant then asked for everyone’s cell phones. Appellant took three or four cell phones from the employees and began breaking them and tearing phone lines from the wall. Appellant asked who had the key to the safe. Aguirre and Kudo responded that they had access to the safe. The safe was perhaps 100 yards from the office.
Appellant decided to take Aguirre to the safe, and told the other employees not to exit the office because his friends were there and would shoot them. Appellant and Aguirre left the office. Aguirre was gone about 10 minutes.
In March 2005, detectives showed Montes a photograph lineup. Montes selected the photograph depicting the person who robbed him. However, he did not, at the time of the trial, remember the number of the photograph he selected. When the prosecutor asked whether Montes made any markings around the photograph, Montes replied no and replied that he was pretty sure. The prosecutor showed the lineup (People’s exhibit No. 14B) to Montes, and he had selected photograph No. 2. Montes identified appellant at the preliminary hearing as the robber, and Montes was 100 percent certain of his identification. Montes identified appellant at trial as the robber, and was 100 percent certain of his identification.
(2) The Testimony of Aguirre.
The testimony of Montes and Aguirre concerning what occurred after appellant and Montes contacted Aguirre, but before she and appellant left the office to go to the safe, was substantially similar. Moreover, Aguirre testified as follows. The distance between the office and safe was about 50 yards. The safe was in the middle of the store, which was a large warehouse. After the employees pointed to the middle of the store, appellant asked for a bag and Petrison gave him one. Appellant gave the bag to Aguirre, told her to put it in her pocket, and told her to walk to the safe.
Aguirre left the office with appellant behind her, and they walked to the safe. Aguirre took about $22,000 out of the safe and put it in the bag. Appellant told Aguirre to follow him to the exit and she complied, fearing for her life. The distance from the safe to the front door was 38 feet. Aguirre and appellant exited the store.
After appellant and Aguirre exited, he took her to the parking lot. The parking lot was pretty big, almost the size of a football field. Aguirre initially testified that the distance from the front exit to where he took her in the parking lot was about 100 yards. After clarifying questioning by the court, Aguirre testified the distance was about 100 feet. Appellant and Aguirre stopped at the end of the parking lot structure, where cars were parked. Appellant told Aguirre to go between two minivans and turn right. When Aguirre went between the two minivans, she was still in public view. However, Aguirre, who was 4 feet 11 inches tall, also testified that if anyone had looked between the minivans, the person would not have been able to see Aguirre. When Aguirre made the right turn, she gave appellant the money. Appellant told her to leave, and she fled. Aguirre positively identified appellant at trial as the robber.
A videotape from Fry’s video surveillance was presented to the jury. Aguirre testified the videotape showed appellant inside the store at 4:20 p.m. on August 8, 2004. The court noted that, in the videotape, the person was wearing a Rastafarian hat with dreadlocks. The videotape also showed the office as it appeared at 4:46 p.m. The court noted that the videotape depicted the suspect in the office with the previously mentioned people. Aguirre testified the videotape depicted her in the office and putting the bag in her pocket, and also showed her walking to the safe.
During cross-examination, Aguirre testified as follows. Aguirre was with the robber a total of probably 45 minutes. At some point, Alvarado showed Aguirre a photographic lineup (People’s exhibit No. 15B), Aguirre selected photograph No. 5 as depicting the robber, and she was positive of her identification. Aguirre later came to court and identified appellant as the robber. When Aguirre saw appellant in court, she thought appellant was the robber and not the person depicted in photograph No. 5.
During redirect examination, Aguirre testified that when she identified appellant at the August 2005 preliminary hearing, she did so because appellant was more familiar to her since she was seeing him in person. She also testified she did so because of the expressions appellant made, such as those he made at the time she was testifying at the trial. His expressions were the same on August 8, 2004. The court explained appellant’s expressions as rolling his lips over his teeth. Aguirre testified she recognized appellant’s facial characteristics, his disguise, and his body language.
(3) The Testimony of Petrison.
Petrison’s testimony at trial as to what happened in the office was substantially the same as the testimony of the other employees. Petrison also testified as follows. Petrison recognized appellant when he was in the office because she had seen him earlier on camera after an associate had reported there was a suspicious person entering the building. The person appeared to be an African-American wearing a Rastafarian hat and a wig. Petrison maintained surveillance of appellant for about two minutes as he was walking through the store. After he entered the store, he went to the components department in the front of the store. She discontinued the surveillance because of an unrelated matter.
On March 11, 2005, Alvarado showed Petrison a photograph lineup (People’s exhibit No. 17B), she selected photograph No. 2 as the photograph depicting the robber, and, at the time she selected it, she was 100 percent sure of her identification. Petrison also identified appellant at trial as the robber and testified that she was 110 percent sure of her identification.
During cross-examination, Petrison testified as follows. Police came to the scene shortly after the robbery. She told police that the robber had brown eyes and was between 5 feet 8 inches and 6 feet 2 inches tall. She possibly said he weighed 220 pounds. The robber was wearing a Rastafarian hat, dark sunglasses, a button-down shirt, and jeans or khaki pants that were possibly light blue. Appellant was in Petrison’s presence for a total of about five minutes.
(4) The Testimony of Detective Alvarado.
Alvarado testified as follows. Alvarado had been a peace officer for 23 years. Using a computer, he created a photographic lineup. The computer generated anywhere from 30 to 100 photographs from which he selected six to create the lineup. Alvarado created People’s exhibit No. 17B, and photograph No. 2 on it depicted appellant. Alvarado selected the rest of the photographs in the exhibit. He looked for individuals who looked similar based on such characteristics as race, age, facial features, and the presence or absence of facial hair. Alvarado felt that People’s exhibit No. 17B depicted persons who were similar in age, race, and physical features. After Alvarado created People’s exhibit No. 16A, a photographic lineup, he showed it to White, and the two agreed it fairly depicted similar-looking persons.
(5) The Testimony of Detective White.
White testified as follows. Detectives normally displayed photographic lineups at the station and asked if they were fair, and detectives would change the lineup if they thought the lineup was unfair. Referring to a photographic lineup, White testified that appellant had full lips, as did the person depicted in photograph Nos. 1, 3, and 6. The persons depicted had varying complexions. Some were bald, some had close-cropped hair, and some had broad noses. White believed the lineup was fair.
People’s exhibit Nos. 18, 19, and 20 depicted photographs taken from the video camera conducting surveillance at Fry’s on August 8, 2004. People’s exhibit No. 22 was a booking photo used to create a photographic lineup.All photographic lineups referred to previously were admitted in evidence.
2. Defense Evidence.
In defense, appellant presented an alibi defense through Samantha Yanick, who testified as follows. Appellant dated Yanick’s sister, Yanick and appellant had a very close relationship, and Yanick did not want to see him get into trouble. Appellant was continuously at Yanick’s home from 6:00 p.m. to 11:00 p.m. on August 8, 2004. Yanick and her sister, mother, and stepfather were present. People’s exhibit Nos. 3 and 4 did not depict appellant. Neither did People’s exhibit No. 19.
CONTENTIONS
Appellant claims there was insufficient evidence that (1) he was the person who committed the present crimes and (2) he committed kidnapping to commit robbery (counts 8, 10, & 16).
DISCUSSION
1. There Was Sufficient Identification Evidence That Appellant Committed the Present Offenses.
a. Pertinent Facts.
After voir dire of the prospective jurors, but before opening statements, appellant complained that police showed victims an impermissibly suggestive photographic lineup. According to appellant, the lineup contained six photographs, photograph No. 2 depicted appellant, and, according to appellant, he was the only dark-complected person depicted in the photographs. Appellant argued it would have been better if photograph Nos. 1, 4, 5, and 6 depicted persons with the same complexion as appellant’s complexion. Appellant asked the trial court to review the lineup. Appellant did not mark the lineup for identification.
The prosecutor argued the lineup was fair and not unduly suggestive. The photographs depicted a range of complexions. The prosecutor indicated that none of the other persons in the lineup were unusually light-complected compared to appellant. When the lineup was shown to the witnesses, one selected photograph No. 1, another selected photograph No. 3, and the rest of the witnesses selected appellant’s photograph as depicting the robber. This showed the lineup was fair and that the persons depicted had similar features.
The court, reviewing the lineup, stated, “The motion is denied. These are all gentlemen of the same approximate age. Even their head sizes; they did a remarkable job of matching head size, which is a distinguishable feature. [¶] They are all male Blacks of the same approximate age – well, same age and seems same physique. So I find it very fair.”
b. Analysis
Appellant claims there was insufficient evidence that he was the person who committed the crimes of which appellant was convicted. He argues, inter alia, that the in-court identifications of appellant as the robber were tainted by impermissibly suggestive photographic lineups. We reject appellant’s claim.
There is no dispute that someone committed the crimes of which appellant was convicted. “In order to determine whether the admission of identification evidence violates a defendant's right to due process of law, we consider (1) whether the identification procedure was unduly suggestive and unnecessary, and, if so, (2) whether the identification itself was nevertheless reliable under the totality of the circumstances, taking into account such factors as the opportunity of the witness to view the suspect at the time of the offense, the witness's degree of attention at the time of the offense, the accuracy of his or her prior description of the suspect, the level of certainty demonstrated at the time of the identification, and the lapse of time between the offense and the identification. [Citations.] [¶] The defendant bears the burden of demonstrating the existence of an unreliable identification procedure. [Citations.]” (People v. Cunningham (2001) 25 Cal.4th 926, 989-990.)
Moreover, “[g]enerally, a pretrial procedure will only be deemed unfair if it suggests in advance of a witness’s identification the identity of the person suspected by the police. [Citation.] However, there is no requirement that a defendant in a lineup, either in person or by photo, be surrounded by others nearly identical in appearance. [Citation.] Nor is the validity of a photographic lineup considered unconstitutional simply where one suspect’s photograph is much more distinguishable from the others in the lineup. [Citations.]” (People v. Brandon (1995) 32 Cal.App.4th 1033, 1052.)
Finally, when a defendant challenges on appeal the sufficiency of the evidence, “[o]ur power as an appellate court begins and ends with the determination whether, on the entire record, there is substantial evidence, contradicted or uncontradicted, to support the judgment. [Citation.]” (People v. Hernandez (1990) 219 Cal.App.3d 1177, 1181-1182.)
In the present case, multiple witnesses identified appellant’s photograph in the photographic lineups and at trial, and were certain of their identifications. Alvarado and White testified as to the fairness of the photographic lineups. We have reviewed the photographic lineup transmitted to this court (People’s exhibit No. 8B). The complexion of the person depicted in photograph No. 2 was somewhat darker than the rest of the depicted individuals, but the trial court reasonably could have concluded the lineup was fair. The jury heard testimony concerning the circumstances of all of the crimes and the multiple and ample opportunities that the victims had at the crime scenes to observe the culprit and identify him. The modus operandi of the August 4, 2004 crimes was similar to that of the August 8, 2004 crimes.
It is not clear from the reporter’s transcripts whether all of the photographic lineups are the same as People’s exhibit No. 8B. Our conclusion that no error occurred would remain unchanged even if all of the photographic lineups were the same as People’s exhibit No. 8B.
We find no constitutional infirmity in the photographic lineup (cf. People v. Cunningham, supra, 25 Cal.4th at p. 990), and the trial court did not err by denying appellant’s pretrial motion pertaining to that lineup. Moreover, we conclude the witnesses’ identifications of appellant were reliable under the totality of the circumstances, and that there was sufficient evidence to convince a rational trier of fact, beyond a reasonable doubt, that appellant was the person who committed the crimes of which he was convicted. (Cf. Ibid.; People v. Ochoa, supra, 6 Cal.4th at p. 1206; People v. Hernandez, supra, 219 Cal.App.3d at pp. 1181-1182.)
2. There Was Sufficient Evidence that Appellant Committed Kidnapping to Commit Robbery (Counts 8, 10, & 16).
Appellant claims there was insufficient evidence as to counts 8, 10, and 16, involving victims Montes, Aguirre, and Diaz, respectively, that appellant committed kidnapping to commit robbery. He argues there was insufficient evidence that the movements of the victim as to each of those counts was beyond that merely incidental to the commission of the robbery and increased the risk of harm to the victim beyond that inherent in the crime of robbery. We reject the claim.
The crime of kidnapping to commit robbery is proscribed by Penal Code section 209, subdivision (b)(1). Subdivision (b)(2) states, “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.” (Italics added.) (See In re Earley (1975) 14 Cal.3d 122, 127-128.)
As to Montes (count 8), there is no dispute that appellant robbed him. Moreover, there was substantial evidence as follows. Appellant displayed a gun to Montes and thereby forced him to walk 100 feet from an empty aisle to the front of the store, 50 feet from the front of the store to the store’s office, and then inside the office. The forced movement of Montes from the empty aisle to the inside of the office may have facilitated the robbery of the money from the safe in the sense that the movement made the robbery easier. Moreover, appellant’s only purpose in forcibly moving Montes this distance may have been to commit that robbery.
We use the term “forced movement” to refer to appellant’s movement of a victim by threat of deadly force.
However, simply put, appellant could have asked Montes where the manager was, without displaying a gun or forcibly moving him. Montes worked in the computer department, and the fact that forcibly moving Montes may have made it easier for appellant to accomplish the robbery did not give appellant a right to feloniously assault and forcibly move any and every Fry employee in an effort to find the manager and have the manager open the safe. Appellant did not move Montes to the location of the safe. The forced movement of Montes was not necessary to commit, and was not incidental to, the robbery of the money from the safe.
Moreover, during the period appellant forcibly moved Montes from the empty aisle to inside the office, Montes was continually exposed to the risk of being shot. Further, appellant forced Montes to leave the store’s open area containing customers and to enter the store office. Once the office door was closed, Montes was removed from public view. This increased the risk that appellant would commit additional crimes inside the office (we note appellant smashed Montes’s cell phone inside the office), decreased the possibility of detection, and decreased the possibility that Montes would escape or be rescued. Indeed, by forcing Montes into the office, appellant increased the risk that if Montes tried to flee, he would be shot by appellant’s friends, whom appellant said would shoot the employees if they left the office. The forced movement of Montes substantially increased the risk of harm to him beyond that inherent in the crime of robbery.
There was sufficient evidence that appellant kidnapped Montes to commit robbery, including sufficient evidence that the movement of Montes was beyond that merely incidental to the commission of, and increased the risk of harm to Montes over and above that necessarily present in, the intended robbery. (Cf. People v. James (2007) 148 Cal.App.4th 446, 452-458; People v. Corcoran (2006) 143 Cal.App.4th 272, 278-280.)
As to Aguirre (count 10), there is no dispute appellant robbed her of the money that had been in the safe. The robbery was complete when Aguirre, under threat of deadly force from appellant, took the money from the safe and carried the money a slight distance. (Cf. People v. Green (1979) 95 Cal.App.3d 991, 999-1000; People v. Price (1972) 25 Cal.App.3d 576, 577-580; People v. Martinez (1969) 274 Cal.App.2d 170, 172-174.) Moreover, there was substantial evidence as follows. The Fry’s store was essentially a large warehouse. Aguirre, under threat of force from appellant, took the money from the safe and walked with appellant to the store’s front door. The distance from the safe to the front door of the store was 38 feet. He then forced her to exit the store with him and walk through the parking lot, walk between two minivans, and then turn right. The parking lot was pretty big, almost the size of a football field, and appellant took her a long distance, apparently about 100 feet. Appellant’s forced movement of Aguirre, after the robbery had been completed, facilitated appellant’s escape, but neither facilitated, nor was necessary to commit, the robbery of the money from the safe. The forced movement of Aguirre was not incidental to the robbery.
Appellant cites People v. Salas (1972) 7 Cal.3d 812 and other cases for the proposition that a robbery is not complete until the perpetrator has reached a place of temporary safety. Appellant’s reliance on the cases is inapposite since they involve application of the felony-murder rule, which is not at issue in this case.
Moreover, during the period after the robbery of Aguirre was complete but before appellant released her, Aguirre was continually exposed to the risk of being shot. Appellant’s act of taking her a lengthy distance away from the store increased the risk that she would be removed from the view of the store’s customers and the public. This increased the risk that appellant would commit additional crimes against Aguirre, decreased the possibility of detection, and decreased the possibility that Aguirre would escape or be rescued. Once Aguirre walked between the minivans and turned right, she was, given her height, no longer visible to the public. The forced movement of Aguirre substantially increased the risk of harm to her beyond that inherent in the crime of robbery.
There was sufficient evidence that appellant kidnapped Aguirre to commit robbery, including sufficient evidence that the movement of Aguirre was beyond that merely incidental to the commission of, and increased the risk of harm to Aguirre over and above that necessarily present in, the intended robbery.
Finally, as to Diaz (count 16), there is no dispute appellant robbed her. The robbery was complete once she, under threat of deadly force, took the money from the registers and gave it to appellant. Moreover, there was substantial evidence as follows. While inside the business, appellant indicated that accomplices would be watching Diaz inside and outside the business. After appellant took the money from Diaz, he made her exit the office with him, walk through the arcade, exit the main arcade doors, and enter the parking lot, a distance of about 48 feet. She later went back inside, collapsed, and cried. We note the increased risk of harm required by Penal Code section 209, subdivision (b)(2) includes not only the risk of physical harm but the risk of psychological harm. (People v. Nguyen (2000) 22 Cal.4th 872, 874, 885-886.)
For reasons similar to those discussed in connection with count 10 (Aguirre), we conclude there was sufficient evidence that appellant kidnapped Diaz to commit robbery, including sufficient evidence that the movement of Diaz was beyond that merely incidental to the commission of, and increased the risk of harm to Diaz over and above that necessarily present in, the intended robbery.
DISPOSITION
The judgment is affirmed.
We concur: CROSKEY, Acting P. J., ALDRICH, J