Opinion
B199704
7-3-2008
THE PEOPLE, Plaintiff and Respondent, v. LUIS ALVAREZ CASTANEDA, Defendant and Appellant.
Allison H. Ting, 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, Lance E. Winters and Dana M. Ali, Deputy Attorneys General, for Plaintiff and Respondent.
Not to be Published
Luis Alvarez Castaneda (defendant) appeals from a final judgment entered after a jury trial. Defendant was convicted of kidnapping to commit robbery (Pen. Code, § 209, subd. (b)(1)), robbery (§ 211), and carjacking (§215, subd. (a)). We direct the trial court to correct the abstract of judgment so that it accurately reflects defendants conviction, but affirm the judgment in all other respects.
All further statutory references are to the Penal Code unless otherwise indicated.
CONTENTIONS
Defendant contends that there was insufficient evidence to support his conviction of kidnapping for the purpose of robbery because the victim was not moved or made to move a distance beyond that merely incidental to the commission of the robbery. Defendant further contends that the abstract of judgment should be corrected to accurately reflect defendants conviction of second degree robbery, rather than first degree robbery.
FACTUAL BACKGROUND
1. Prosecution Evidence
On January 1, 2006, at 1:00 a.m., Felix Rivera left his job as a security guard at a homeless shelter. He was driving his Toyota Corolla toward his home in Northridge when he felt an urgent need to urinate. He pulled into the driveway of a McDonalds and relieved himself.
As he did so, he was approached by a man who asked him for a ride to Tupper Street. Rivera agreed. The man stepped into the passenger side of the car, pulled out a nine-millimeter handgun, and pointed it at Rivera. The gunman then asked for Riveras wallet, which Rivera handed over. It had about $50 cash inside.
Rivera then looked to his left and saw two other men, one of whom was defendant. Defendant and the other man pulled Rivera out of the car and beat him up, leaving him with bruises on his face and a missing upper left front tooth. Then, without Riveras consent, the men lifted him up and placed him inside the car, in the back behind the drivers seat. Defendant sat in the back seat next to Rivera with his arm around Rivera and threatened to take Riveras life. One of the men, who wore a fishing hat, began driving and drove the car for about 15 minutes before stopping and changing places with the other man in the front.
At some point, the initial gunman gave the gun to the man with the fishing hat, who seemed to be in charge. The man with the fishing hat then went through the items in Riveras wallet one by one, placing the items he deemed unimportant on the floor. He then gave Rivera his automatic teller machine (ATM) card to withdraw money. Rivera surreptitiously bent the ATM card so that it would malfunction.
The men drove Rivera to a Washington Mutual Bank where the man in the fishing hat gave the handgun to defendant, and asked him to accompany Rivera to the ATM. They put the fishing hat on Rivera before he stepped out of the car. Rivera and defendant walked up to the ATM and Rivera attempted to withdraw money, but was unsuccessful. The ATM would not return Riveras ATM card. Defendant and Rivera walked back and forth between the ATM and Riveras car two times. Once they returned to the car the second time, the men started driving again. While driving they discussed where else Rivera might be able to get money. Eventually, they told Rivera to get out of the car in a residential neighborhood and left with his car. At no time did Rivera give permission to defendant or the others to take his car, or the items left in it, including his wallet, approximately $50 cash, and a cell phone.
A video from the ATM surveillance camera, which depicts defendant and Rivera, was played for the jury and admitted into evidence.
Rivera testified that he was asked to leave the car around Havenhurst and Nordhoff. However, a map of the different areas that Rivera was moved to, which was admitted into evidence, showed that Rivera ended up somewhere on Tupper Street and Monogram when he was told to leave his car.
After being left, Rivera walked to a residence, knocked on the door, and asked the occupant, Juan Alcala, to call the police. Officer Maria Rowedder and her partner responded to the call, and interviewed Rivera about the incident. Detective Pedro Cabunoc investigated Riveras robbery and interviewed Rivera. Rivera told Cabunoc the same information that he testified to during trial.
2. Defense Evidence
Defendant testified that on January 1, 2006, he was at home in his apartment on Sylmar Avenue. He went downstairs to smoke a cigarette and spoke with a man named Pacheco. Pacheco claimed that Rivera owed him some money and was going to bring it there. Since Pacheco owed defendant $20, defendant believed that Pacheco was going to pay him back. Defendant and Pacheco went outside and saw Riveras car stop in front of 9339 Sylmar.
Pacheco approached Riveras car and asked Rivera for money. Rivera moved to the passenger side, Pacheco got in the drivers side, and defendant sat in the backseat. Then, Pachecos brother came running up to the car and asked Rivera if he had brought the money. Since Rivera had not brought the money, he was directed to hand over his wallet. Pachecos brother then forced Rivera to get into the back seat so he could sit in the front seat. Pachecos brother punched Rivera in the face while the car was moving, then checked Riveras wallet and found that there was no money there. Pachecos brother then pointed a gun at Rivera. The car proceeded to a bank where Pachecos brother forced defendant to go with Rivera to the ATM. After Rivera unsuccessfully attempted to withdraw money from the ATM, they got back in the car and Pacheco drove towards defendants home. While stopped at a red light, defendant got out and ran towards his home. He did not call police because Pacheco and his brother knew where he lived and had been threatening him a lot. He was also afraid that he would be arrested as an accomplice, even though his participation had been by force.
3. Rebuttal Evidence
Detective Cabunoc, a certified Spanish translator who had conducted over 1,000 interviews, interviewed defendant on May 19, 2006. Initially, defendant said there were only three people in the car: Rivera, Pacheco, and himself. Defendant later stated that Pachecos brother was also there. Defendant claimed that Pachecos brother had a gun and was threatening to kill him. When defendant was told that his fingerprints were on the car, he stated that he had driven many cars. Defendant told Detective Cabunoc that he had been in the Corolla before that night, and that he had seen Pacheco driving it. He also admitted that he sometimes waited for the bus in front of the McDonalds where Rivera said the incident began, but he did not admit to being there on the night in question.
Defendant said Rivera had been hit two times, but that he went to the ATM willingly because he owed Pacheco money. Defendant admitted that he was depicted in the ATM video, but he denied participating in a robbery. He stated that he was being threatened by the guy in the car, and that the guy was crazy. At some points he said the gun was real and at other points he said the gun was fake. At times he said Rivera went voluntarily to the ATM and other times he said Rivera went involuntarily. He never said he went with the group to take money forcefully from Rivera.
DISCUSSION
I. Substantial Evidence Supports Defendants Conviction of Kidnapping to Commit Robbery
Defendant argues that there is insufficient evidence to support his conviction of kidnapping to commit robbery. Specifically, he argues that, even viewing all of the evidence in the light most favorable to the verdict, the required asportation element was not proven beyond a reasonable doubt. Section 209, subdivision (b)(2), applies only "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." Defendant suggests that because the movement of Rivera was merely incidental to the robbery in progress, this asportation requirement was not satisfied. As set forth below, we find that the evidence supported the jurys determination that the forcible movement of Rivera was not merely incidental to the robbery and that such movement substantially increased the risk of harm to Rivera.
A. Standard of Review
In reviewing the sufficiency of the evidence, we must view the evidence in the light most favorable to the judgment to see if there is substantial evidence from which any rational trier of fact could find each element of the crime beyond a reasonable doubt. (People v. Staten (2000) 24 Cal.4th 434, 460; People v. Ceja (1993) 4 Cal.4th 1134, 1138.) We presume "in support of the judgment the existence of every fact the jury could reasonably deduce from the evidence. [Citations]." (People v. Bloom (1989) 48 Cal.3d 1194, 1208.) "Although we must ensure the evidence is reasonable, credible, and of solid value, nonetheless it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends. [Citation.] Thus, if the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witnesss credibility for that of the fact finder. [Citations.]" (People v. Jones (1990) 51 Cal.3d 294, 314.) A judgment will not be reversed for insufficiency unless "`upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction]. [Citation.]" (People v. Bolin (1998) 18 Cal.4th 297, 331.)
B. The Asportation Element
People v. Daniels (1969) 71 Cal.2d 1119 sets forth the applicable test for determining when movement of a victim satisfies the asportation element of section 209. Because the movement must not be merely incidental to the commission of the crime and must substantially increase the risk of harm over and above that necessarily present in the crime itself, the Supreme Court reversed convictions under section 209 where the defendants only compelled their victims to move around the interior of their apartments. The Supreme Court explained: "[W]hen in the course of a robbery a defendant does no more than move his victim around inside the premises in which he finds him — whether it be a residence . . . or a place of business or other enclosure — his conduct generally will not be deemed to constitute the offense proscribed by section 209." (Daniels, supra, at p. 1140.)
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 any violation of Section 264.1, 288, or 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 Supreme Court has explained that, in determining whether the movement of a victim was merely incidental to the robbery, the jury should consider the "scope and nature" of the movement, including the actual distance the victim is moved. (People v. Rayford (1994) 9 Cal.4th 1, 12 (Rayford).) "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 of the asportation test. (Ibid.) In considering whether the movement was incidental to the crime, the focus is on the "context of the environment in which the movement occurred." (Ibid.)
The second prong of the asportation test refers to whether the movement subjects the victim to a substantial increase in the risk of harm above and beyond that inherent in the robbery. "This 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.]" (Rayford, supra, 9 Cal.4th at p. 13.) "The fact that these dangers do not in fact materialize does not, of course, mean that the risk of harm was not increased. [Citations.]" (Id. at p. 14.)
The two aspects of asportation "are not mutually exclusive, but interrelated." (Rayford, supra, 9 Cal.4th at p. 12.) They are interrelated "because a trier of fact cannot consider the significance of the changed environment without also considering whether that change resulted in an increase in the risk of harm to the victim." (People v. Martinez (1999) 20 Cal.4th 225, 236.) "Application of these factors in any given case will necessarily depend on the particular facts and context of the case." (People v. Dominguez (2006) 39 Cal.4th 1141, 1153.)
Cases in which the asportation element was held to be satisfied include People v. Lara (1974) 12 Cal.3d 903, 907-908 (defendant used a shotgun to force the victim to drive his car from a lumberyard to a nearby dump); In re Earley (1975) 14 Cal.3d 122, 127-131 (defendant forced victim to move from drivers seat to passenger seat and drove 10 to 13 blocks before stealing victims wallet and watch and fleeing on foot); People v. James (2007) 148 Cal.App.4th 446, 452 (victim was moved from the outside of a bingo club to the inside); and People v. Rayford, supra, 9 Cal.4th at page 23 (forcible movement from one side of a parking lot to the other was not merely incidental to attempted commission of rape, and substantially increased risk of harm to victim). The Supreme Court has specified that a factfinder may consider whether "the asportation gave rise to dangers, not inherent in robbery, that an auto accident might occur or that the victim might attempt to escape form the moving car or be pushed therefrom." (In re Earley, supra, 14 Cal.3d at p. 132.)
C. The Evidence Supports the Jurys Determination That the Asportation Element Was Met
Viewing the evidence in a light most favorable to the verdict, the facts relevant to asportation are as follows: first, after the man who had asked him for a ride entered the passenger side of Riveras car, Rivera was forcibly removed from his car by two men, one of whom was defendant. Next, after they had punched him in the face, defendant and his cohorts lifted Rivera and placed him in the backseat of his car. Then, while Rivera was held in place by defendant, who threatened to take Riveras life, the man with the fishing hat drove the car around for about 15 minutes before stopping and swapping places with the other man in the front. The man with the fishing hat then began looking through Riveras wallet, and handed Rivera his ATM card to withdraw money. Eventually, they arrived at a bank where defendant, armed with a gun, accompanied Rivera to the ATM. After two unsuccessful attempts to withdraw money from the ATM, the men drove around some more with Rivera in the car. Eventually, they told Rivera to get out of his car in a residential neighborhood in the area of Havenhurst and Nordhoff, and then left with his car.
This evidence supports both elements of the asportation requirement in section 209, subdivision (b)(2). First, the movement of Rivera was well beyond that which may be described as merely incidental to the thefts of Riveras wallet and car. The man with the fishing hat did not even begin looking through Riveras wallet to locate his ATM card until after he had driven around, with Rivera held forcibly in the backseat, for 15 minutes. Thus, defendants argument that the movement of Rivera was "merely incidental to the robbery in progress" is unavailing. Further, even if the initial movement between the McDonalds and the ATM could be considered incidental to the robbery, the perpetrators continued to move Rivera against his will even after it became clear that he would not be successful in withdrawing cash from an ATM.
Defendant attempts to compare these facts to those in In re Crumpton (1973) 9 Cal.3d 463, 466, in which the Supreme Court determined that the forcible movement of the victim 20 to 30 feet behind a truck parked on the premises of a service station was merely incidental to the crime of robbery. However, the Crumpton court determined that "[i]n the case at bar the victim was not compelled to move a substantial distance." (Ibid.) The situation before us is different, because, during the course of over 15 minutes of driving, Rivera was moved a distance far greater than 20 to 30 feet. In addition, the Crumpton court relied on language found in People v. Daniels, supra, 71 Cal.2d at page 1140, specifying that "when in the course of a robbery a defendant does no more than move his victim around inside the premises in which he finds him," the conduct will not generally be deemed to constitute the offense proscribed by section 209. (Crumpton, at p. 466.) The high court pointed to People v. Williams (1970) 2 Cal.3d 894, which held that a service station, including the adjacent outdoor areas, was analogous to a place of business within the meaning of Daniels. Such was not the situation in the matter before us, where the victim was moved from a McDonalds to a bank and then to a residential neighborhood. In contrast to Crumpton, this movement was not restricted to a single place of business or enclosure.
Further, the movement of Rivera subjected him to a substantial increase in the risk of harm above and beyond that inherent in the robbery. Rivera was held in the backseat of the car by force with threats to his life with a diminished likelihood of detection. The individuals had already used physical force to subdue him and might have done so again if he attempted to stop them or escape from the car.
Defendant further argues that "the intended underlying offense" described in section 209, subdivision (b)(2) can only mean "the only actual robbery that took place," which defendant describes as "the robbery of personal possessions that took place inside the car." Preliminarily, we disagree with the suggestion that other intended offenses, such as the attempted robbery of cash withdrawn from the ATM, may not be considered "intended underlying offenses" under section 209.
We therefore conclude that substantial evidence supported the jurys determination that the asportation element of section 209 was met.
II. The Abstract of Judgment Must be Modified to Accurately Reflect Defendants Conviction of Second Degree Robbery
Defendant next contends that the abstract of judgment should be corrected to reflect that he was convicted of second degree robbery in count 3, rather than first degree robbery. The People concede that the abstract incorrectly reflects that defendant was convicted of first degree robbery, and agree that this court should order it corrected.
The rendition of judgment is the oral pronouncement of sentence. (People v. Mesa (1975) 14 Cal.3d 466, 471.) The recording of the judgment and sentence in the minutes or in the abstract of judgment is a purely ministerial act done by the court clerk. (Ibid.) If there is any discrepancy between the judgment as pronounced and the judgment as entered, the judgment as pronounced governs. (Id. at pp. 471-472.) The court has inherent power to correct clerical errors in the abstract of judgment to reflect the true nature of the judgment or proceedings. (People v. Mitchell (2001) 26 Cal.4th 181, 184-185; In re Candelario (1970) 3 Cal.3d 702, 705.)
Though defendant was charged with first degree robbery of a person using an ATM (§§ 211, 212.5, subd. (b)), the jury was instructed only with second degree robbery. Furthermore, the trial court sentenced defendant to the midterm of three years on count 3, indicating that defendant was in fact convicted of second degree robbery. The abstract of judgment correctly reflects the three-year sentence imposed in count 3, but incorrectly states that defendant was convicted of first degree robbery. "It is . . . important that courts correct errors and omissions in abstracts of judgment." (People v. Mitchell, supra, 26 Cal.4th at p. 185.) Since the abstract of judgment does not accurately reflect the oral rendition of judgment, and because the error appears to be clerical, the abstract should be corrected.
DISPOSITION
The matter is remanded to the trial court with directions to modify the amended judgment to accurately reflect the conviction of second degree robbery. The judgment is affirmed in all other respects.
We concur:
DOI TODD, P. J.
ASHMANN-GERST, J.