Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. LA060496 Martin L. Herscovitz, Judge.
Leonard J. Klaif, under appointment by the Court of Appeal, for Defendant and Appellant Darrell Brown.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Pamela C. Hamanaka, Assistant Attorney General, Paul M. Roadarmel, Jr. and David A. Voet, Deputy Attorneys General, for Plaintiff and Respondent.
MANELLA, J.
INTRODUCTION
Darrell Allan Brown, Jr., appeals from a judgment following his convictions for robbery and kidnapping. He contends that there was insufficient evidence to support his kidnapping convictions. He also contends that he is entitled to a new trial because of an alleged Doyle error. Finding no error, we affirm the judgment in its entirety.
Doyle v. Ohio (1976) 426 U.S. 610 (Doyle).
STATEMENT OF THE CASE
A jury convicted appellant of three counts of second degree robbery (Pen. Code, § 211), three counts of kidnapping for the purpose of robbery (§ 209, subd. (b)(1)), and one count of attempted second degree robbery (§§ 664, 211). The jury also found true, as to each count, that appellant personally used a firearm, (§§ 12022.5, subd. (a); 12022.53, subd. (b)), and that a principal was armed with a firearm (§ 12022, subd. (a)(1)).
All further statutory citations are to the Penal Code.
In a bifurcated proceeding, the trial court found true that appellant had three prior convictions within the meaning of section 667.5, subdivision (b). The court also found true that appellant had two prior strikes within the meaning of the “Three Strikes” law (§§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i)) and that appellant had served a prior prison term within the meaning of section 667, subdivision (a)(1).
The trial court denied probation and sentenced appellant to an aggregate term of 43 years to life. Appellant timely appealed from the judgment of conviction.
STATEMENT OF THE FACTS
Danny Siag worked at Sky Mortgage, Inc. (Sky Mortgage) in a three-story building. A person could enter the building through a secured door on the first floor or through the secured parking lot. Sky Mortgage was one of three businesses on the second floor. The others were Dynamic Home Care and a company called “3:00 A.M. Artist Management.”
The second floor could be accessed by stairs or an elevator in the main lobby on the first floor. Sky Mortgage had a reception area, three offices, and a large conference room with tables, a copier machine, and supplies. The front door to Sky Mortgage led to the reception area. One could see the reception area from the front door, but one could not see the copier machine inside the large conference room. Siag estimated that the distance between the reception area and the copier machine was about 15 feet.
On October 30, 2008, at around 10:30 a.m., Siag arrived at work, pulled into the parking lot, and noticed two Black men who appeared to be waiting at the secured door to get into the building. Siag entered the building and went to his office on the second floor. Siag and the receptionist, Telma Rodas, were the only Sky Mortgage employees present at that time. At about 11:15 a.m., Siag was making some copies in the large conference room when a Black man with a gun entered the room and told Siag to put up his hands and lie down on the floor. The man then brought Rodas from the reception area into the room and told her to lie on the floor next to Siag.
Another Black man, later identified as appellant, brought two Dynamic Home Care employees, later identified as Thomas Moeller and Elizabeth Uribe, into the conference room and ordered them to lie beside Siag and Rodas. The first man went through Siag’s pocket and took his money, cellular telephone, key card, and wristwatch. Siag also saw him taking Rodas’s cellular telephone. The man was upset about the small amount of money on Siag and asked Siag if there was more money in the office. Siag said, “‘We don’t hold money in this office. We have no money. We don’t deal with money here.’” Siag asked the man to leave his phone because he needed the phone. The man left Siag’s phone and key card, but told the victims, “‘Do not call the police. We know everything. We’re going to know about it.’” The assailants then left the office and the building. The ordeal lasted about 20 to 25 minutes. Siag did not call the police; he believed another victim did.
Later the same day, police officers showed Siag a pack of six photographs of possible suspects, but he was unable to make any identifications. At trial, Siag described the assailant who pointed a gun at him as a Black man who was wearing jeans, a blue shirt, and a cap. He said his assailant was one of the two Black men he had seen earlier at the entry doors.
Moeller and Uribe both worked for Dynamic Home Care on October 30, 2008. Dynamic Home Care occupied part of the second floor and the third floor of the building. It had a suite on the second floor, which was on the opposite side of the hallway that led to the entrance door to Sky Mortgage. Both Moeller and Uribe had a desk in the second floor suite. Two Dynamic Home Care employees also worked on the floor, although only Moeller and Uribe were present at the time the crimes occurred.
At around 11:25 a.m., Moeller noticed appellant entering the suite. Moeller asked if he could help appellant. Appellant said yes, took a revolver from his waist area, showed it to Moeller and Uribe, and indicated that he was committing a “hold-up.” Appellant said, “‘Come with me.’” Appellant pointed his gun at Moeller and Uribe. Moeller gestured to Uribe to get up from her desk. Moeller and Uribe held hands while appellant led them out of the suite. They went down the hall and then appellant stopped them when they were “just inside the threshold [of] Sky Mortgage.”
Afterwards, appellant led them into Sky Mortgage’s reception area. Moeller observed another assailant with a revolver leading Siag and Rodas from the front of the office to the back of the office. Appellant led Moeller and Uribe from the reception area “to the back side of the offices, without any direct visual from the hallway.” Appellant told Moeller and Uribe to lie on the floor next to Siag and Rodas. From this area, Moeller could not see the area directly outside of Sky Mortgage. He estimated that appellant made him walk somewhere between 80 and 100 feet.
Moeller recalled one assailant saying that they did not want to hurt anyone and were not going to rape anyone, but were there “only for the money.” An assailant took Moeller’s cellular telephone, wristwatch, and the money from his wallet. The assailants later left the phone and wallet at Sky Mortgage’s offices.
Uribe recalled that an assailant kept talking about money, but the victims told him that they did not have money. Uribe saw Moeller, Siag, and Telma being searched. She also saw an assailant take Moeller’s wallet and watch. Uribe was searched, but nothing was taken.
Uribe heard an assailant say that the victims had seen the assailants’ faces, but he would leave if the victims promised not to call the police. The victims did so, but he then said, “I think you guys are going to take a long nap.” Uribe thought the assailant was going to kill them. However, he relented and said the victims had been “good” so they were going to leave. The assailants left. After a few minutes, Moeller got up, assessed that they were all unharmed, and then went to his desk and called 911. He also noticed that somebody had taken his laptop computer along with a computer carrying case which contained some papers and a “thumb drive.”
That afternoon, using the Global Positioning System (GPS) locator in Rodas’s cellular telephone, Los Angeles police officers were able to identify the phone’s location at a residence in Compton. When they arrived at the residence appellant was there, in possession of the phone and wearing Siag’s wristwatch. Appellant was taken into custody.
Later that night, Moeller was shown two pages, each containing nine colored photographs. He was unable to make an identification of appellant, but he selected two photographs he thought most resembled the second assailant. A few months later, at a court hearing, Moeller identified appellant as one of the assailants after hearing his voice.
The police also showed Uribe two pages of colored photographs that evening. Uribe identified appellant as the person who held her and Moeller at gunpoint. Uribe remained sure of her identification at trial.
Appellant testified in his own behalf at trial. He denied robbing the victims. He stated that he was playing video games at a friend’s house at the time of the robberies. He also testified that he bought the cellular telephone and wristwatch from a man at a liquor store, and had no reason to believe the items were stolen. Later that day, appellant was at home in his apartment when two police officers arrived and asked him about a shooting. The officers asked to see a cell phone. Appellant gave an officer his personal cellular telephone, but the officer returned the phone and said, “‘This is not the cell phone.’” Appellant then gave the officer the phone that he had allegedly purchased at the liquor store. Appellant was then arrested. On cross-examination, the prosecutor asked appellant if he had ever told the police his alibi story. He stated that he was never asked by the police. He also testified that he was given Miranda advisements after he was taken to the Van Nuys police station.
Arizona v. Miranda (1966) 384 U.S. 436.
DISCUSSION
A. Kidnapping Offenses
Appellant first contends that the kidnapping convictions relating to Rodas, Moeller, and Uribe should be reversed because there was insufficient evidence to establish (1) that the movement of the victims was not incidental to the crime of robbery, and (2) that the movement increased the risk of harm to the victims. We disagree. After viewing the evidence in the light most favorable to the prosecution, we conclude that a rational trier of fact could have found the essential elements of the crime of kidnapping for robbery beyond a reasonable doubt. (People v. Ledesma (2006) 39 Cal.4th 641, 718; Jackson v. Virginia (1979) 443 U.S. 307, 319.)
An essential element of the crime of kidnapping for robbery is “‘movement of the victim that is not merely incidental to the commission of the robbery, and which substantially increases the risk of harm over and above that necessarily present in the crime of robbery itself.’” (People v. Burney (2009) 47 Cal.4th 203, 255, quoting People v. Rayford (1994) 9 Cal.4th 1, 12.) Whether the movement of a victim in any particular case is “merely incidental” involves a consideration of the “‘scope and nature’” of the movement and the “context of the environment in which the movement occurred.” (People v. Rayford, supra, 9 Cal.4th at p. 12.) Whether the movement increases the risk of harm to a victim depends, among other factors, on “whether the movement decreases the likelihood of detection, increases the danger inherent in a victim’s foreseeable attempts to escape, or enhances the attacker’s opportunity to commit additional crimes. [Citation.]” (People v. Dominguez (2006) 39 Cal.4th 1141, 1152.)
Appellant heavily relies upon People v. Washington (2005) 127 Cal.App.4th 290 (Washington) in support of his argument that the movement in this case was incidental to the crime, but that case is distinguishable. In Washington, appellants committed a takeover robbery of a bank. One of them moved a manager from her office to the vault room, forced the manager to open the vault with the assistance of a teller who was moved from the teller area to the vault room, and then robbed the vault. (Id. at p. 294.) The appellate court reversed the kidnapping for robbery convictions because “there was no excess or gratuitous movement of the victims over and above that necessary to obtain the money in the vault.” (Id. at p. 299.) In contrast, the movement of the victims here was not necessary to obtain money or property from them.
Rather, the facts in this case are more similar to those addressed by this court in People v. Corcoran (2006) 143 Cal.App.4th 272 (Corcoran). In Corcoran, the assailants attempted to rob a charity during a bingo event, but aborted the attempt after a victim fled. The assailants then rounded up the remaining four victims and moved them into the back of the building. (Id. at pp. 274-276.) On appeal, this court affirmed the kidnapping convictions because “the movement of the victims had nothing to do with facilitating taking cash from the bingo hall; defendant and his accomplice had aborted that aim, and their seclusion of the victims in the back office under threat of death was clearly ‘excess and gratuitous.’” (Id. at pp. 279-280.) We also concluded that the movement increased the risk of harm to the victims because it “remov[ed] the victims from public view, decreas[ed] the odds that the attempted robbery of cash from the bingo hall would be detected, increase[ed] the risk of harm should any victim attempt to flee, and facilitate[ed] the robbers’ escape.” (Ibid.)
Likewise in this case, the movement of the victims was not merely incidental to the underlying crime of robbery. The assailants could have robbed Rodas, Moeller, and Uribe without moving them into the conference room. Thus, the movement was excessive and gratuitous. The movement also increased the risk of harm to the three victims because the large conference room was visually isolated, and no one outside of Sky Mortgage’s offices would have been able to see into the area where the victims were brought. Thus, the movement of the victims removed them from public view, decreased the likelihood that the assailants would be detected, increased the danger to the victims if any sought to escape, and enhanced the assailants’ opportunity to commit additional crimes. Accordingly, there was sufficient evidence to support the kidnapping convictions.
B. Alleged Doyle Error
Appellant also contends that the judgment should be reversed and the matter remanded for a new trial because of an alleged Doyle error during his cross-examination. We disagree.
In Doyle, the United States Supreme Court held that a defendant may not be impeached by his post-arrest silence after he has received Miranda advisements. (Doyle, supra, 426 U.S. at p. 618.) In Greer v. Miller (1987) 483 U.S. 756, 763 (Greer), the Supreme Court explained that a Doyle violation has two components. The first component is that the prosecutor makes use of a defendant’s post-arrest silence for impeachment purposes. The second component is that the trial court permits that use, such as when it overrules a defense objection, thereby giving the jury the unmistakable impression that what the prosecution is doing is legitimate. (Greer, at pp. 761-764.) Doyle error is analyzed under the Chapman harmless beyond a reasonable doubt standard. (People v. Earp (1999) 20 Cal.4th 826, 858.)
Chapman v. California (1967) 386 U.S. 18, 24.
Here, appellant testified on direct examination that he was playing video games at his friend’s house when the charged crimes occurred. On cross-examination, the following exchange occurred between the prosecutor and appellant:
Prosecutor: “Now, you never told the police that you were at home during the time of this incident, did you?”
Appellant: “Did I tell them I was at home?”
Prosecutor: “Yes.”
Appellant: “I wasn’t at home. I was outside at somebody else’s house.”
Prosecutor: “Isn’t it true that you never told the police that you were hanging out at your friend’s house at the time of this incident?”
Appellant: “They didn’t ask.”
Prosecutor: “Isn’t it true that they asked if you -- if you had anything to say, and you told them, ‘No, ’ didn’t you?”
Appellant: “No.”
Prosecutor: “Isn’t it true that the officer or the detective Mirandized you? In other words, she told you your rights?”
Appellant: “She told me my rights when they got me to Van Nuys.”
Prosecutor: “[I]sn’t it true that after she told you [your] rights, you said, ‘I don’t have nothing to say’?”
Appellant: “Yes.”
Prosecutor: “Okay. So you never told the police that at the time of the incident, you were at your friend’s house?”
Defense counsel objected on the ground that the questions had been asked and answered. The court sustained the objections.
The exchange continued:
Prosecutor: “You never told the police that you were with other people at the time of the incident, did you?”
Appellant: “I didn’t talk to detectives, ma’am.”
Prosecutor: “The officers that told you your rights, you never told them that you were with other people at the time of the incident, at 11:15, did you?”
Defense counsel again objected on the ground that the questions had been asked and answered. The court again sustained the objection.
Later on, the prosecutor asked: “And the story about you being with your friends at the time of the incident, you never brought this up until today, did you?” The court sustained a third objection on the ground the question had been asked and answered. The prosecutor did not ask appellant any further questions. She did not mention appellant’s post-arrest statements during closing arguments.
On this record, we conclude there was no prejudicial error. First, the prosecutor asked only one question that would violate Doyle: “[I]sn’t it true that after she told you [your] rights, you said, ‘I don’t have nothing to say’?” The remaining questions about appellant’s silence before he was given Miranda advisements are permissible because Doyle applies only to post-arrest, post-Mirandized silence. (People v. Earp, supra, 20 Cal.4th at pp. 856-857; People v. Delgado (1992) 10 Cal.App.4th 1837, 1839-1840.) The prosecutor made no mention of appellant’s post-arrest silence in closing arguments.
Second, there is no evidence that the trial court permitted the prosecutor to use appellant’s post-arrest, post-Mirandized silence to impeach his testimony. (See People v. Champion (2005) 134 Cal.App.4th 1440, 1451 [“It also is questionable whether defendant can establish error under Doyle without demonstrating that the trial court specifically permitted the comments.”].) In Greer, supra, 483 U.S. 756, the United States Supreme Court held there was no Doyle violation where “the court explicitly sustained an objection to the only question that touched upon [appellant’s] postarrest silence[, ] [n]o further questioning or argument with respect to [appellant’s] silence occurred, and the court specifically advised the jury that it should disregard any questions to which an objection was sustained.” (Greer, supra, at p. 764.) No objection was raised when the prosecutor asked her objectionable question, but an objection was raised after the next question, and the trial court sustained that objection. The trial court sustained two further objections to the prosecutor’s line of questioning. On this record, it is questionable whether the trial court permitted the prosecutor to violate Doyle.
Finally, any error was harmless beyond a reasonable doubt. During the kidnapping, appellant did not disguise himself or hide his face. Both Moeller and Uribe identified appellant as one of their assailants. Within hours of the robbery, appellant was found in possession of Rodas’s stolen cell phone and Siag’s stolen wristwatch. On this record, the evidence against appellant was overwhelming. Accordingly, we reject his claim of error.
DISPOSITION
The judgment is affirmed.
We concur: EPSTEIN, P.J., WILLHITE, J.