Opinion
G062742
09-19-2024
THE PEOPLE, Plaintiff and Respondent, v. GREGORY RICHARD GUZMAN, Defendant and Appellant.
William J. Capriola, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Christopher P. Beesley and Michael D. Butera, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Riverside County No. INF1801977, Bernard Schwartz, Judge. Affirmed.
William J. Capriola, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General,
Christopher P. Beesley and Michael D. Butera, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
GOETHALS, J.
Gregory Richard Guzman appeals from a judgment convicting him of a series of crimes related to his armed robbery of a Super 8 Motel, including the kidnapping of victim (J.J.) for purposes of robbery (Pen. Code,§ 209, subd. (b)(1)), and attempting to dissuade a witness (N.F.) from reporting a crime (§ 136.1, subd. (b)(1)).
All further statutory references are to this code.
Guzman argues his convictions must be reversed because (1) the evidence is insufficient to support the jury's finding of asportation related to the aggravated kidnapping charge; and (2) the evidence is insufficient to support the witness dissuasion conviction because the prosecutor was required to charge him under a more specific statute for the misconduct alleged. We affirm.
The law regarding the amount of movement required to satisfy the asportation requirement in an aggravated kidnapping charge is well-established. In this context, asportation does not always require that the defendant move the victim a great distance. Rather, to satisfy the statutory requirement, the movement at issue must not be merely incidental to the robbery and it must have increased the risk of psychological or physical harm to the victim. As a result, resolution of an asportation issue invariably requires close scrutiny of the underlying facts.
We find the evidence related to asportation in this regard sufficient to support the jury's finding. Guzman moved J.J. to multiple locations near the motel lobby in which the robbery began. The final movement ended by a surveillance equipment room. That movement was not incidental to the robbery, and it increased the risk of both psychological and physical harm to J.J. as Guzman became increasingly volatile and violent. Indeed, the increased risk of harm was soon realized when Guzman sexually assaulted and then attempted to kill J.J.
Guzman's challenge to his conviction for dissuading a witness is also without merit. While his act of snatching N.F.'s cell phone from her hand and throwing it to the ground was part of his effort to dissuade her from contacting authorities to report his crime, that was not all he did; his dissuasive conduct also included pointing his gun at N.F. and stating he intended to kill her. While such conduct might dissuade anyone from calling 911, even if the victim retained her phone, it also dissuaded this victim from reporting the crime in other ways, like yelling for help or trying to flag down a nearby car. Because that broader dissuasive effort is not necessarily addressed in the more specific statute, we find no error in the charging decision.
FACTS
On October 19, 2018, the night Guzman committed his crimes, both J.J. and N.F. worked as front desk clerks at a Super 8 Motel in Riverside County. J.J. was on duty alone and was scheduled to be relieved at midnight by N.F. Several times during her shift, J.J. answered calls to the motel's phone line, but heard only breathing on the line. She locked the doors to the motel lobby and lowered the lights.
Near the end of J.J.'s shift, as she watched the feed from the motel's surveillance cameras on a computer screen, she saw someone walking outside the front lobby area. She looked to see if it might be a guest, and spotted Guzman standing outside the window wearing a mask and hoodie, and holding a gun.
Guzman also saw J.J. and motioned with his gun for her to come to the door. Concluding he was there to rob the motel, J.J. grabbed the motel's cash box and took it to the door, hoping Guzman would take it and leave. Instead, he pushed his way inside and ordered her onto the floor. When J.J. was lying face down on the ground, Guzman put his gun to the back of her head and told her he wanted the money and was not going to kill her.
J.J. told Guzman there was a safe in another room. Guzman then pulled J.J. up by her hair; he pushed her from behind with the gun as they walked into the back room where the safe was. After J.J. attempted unsuccessfully to open the safe, she told Guzman there was a tool at the front desk to open it. He told her to get the tool; he warned her he would kill her if she activated a silent alarm.
When she returned with the tool, J.J. was still unable to open the safe. Guzman got angry and hit her in the back of the head with his gun.
Guzman then told J.J. he wanted the motel's surveillance footage. He took her to the room where the surveillance equipment was kept, but she was unable to open the locked door. They unsuccessfully tried to break into the room. Guzman then pushed his gun into J.J.'s chest, put his other hand on her groin, and kissed her on the cheek. Guzman told J.J. he was going to kill her.
J.J. begged Guzman to leave and told him her coworker would be arriving any minute. Guzman then took J.J.'s purse. He told her that if she contacted the police, he would find her and kill her and her children.
J.J. saw a car approach the motel and told Guzman that her coworker had arrived so he should leave. Guzman forced J.J. to lie on the ground while he went to the front door. When he saw no one, he got angrier and accused J.J. of lying to him. He pulled her up from the ground, put both hands around her neck, and started choking her. J.J. felt her face becoming hot and thought she was seeing stars. She believed she was about to die.
J.J. then heard the motel door chime and saw her coworker, N.F., enter the motel lobby. As N.F. walked into the lobby, she looked up and saw J.J. pinned against the wall by Guzman, with his hands around her neck. He then turned around, saw N.F., and let J.J. go. Guzman approached N.F. and pressed his gun into her side as he moved her outside with her hands raised in the air. After Guzman turned his attention to N.F., J.J. was able to call 911.
Once they were outside, Guzman grabbed N.F.'s phone and threw it to the ground. He told her he was going to kill her. When a car approached the motel, Guzman ran and got into a jeep. Guzman's cohort, Christina Nuno, who was the third front desk clerk of the motel (and Guzman's housemate), was waiting in the Jeep. Nuno drove to a gated community where Guzman said he owned a house. When he was unable to open the security gate, Guzman took over driving and rammed the jeep through the gate.
When Guzman exited the Jeep near a house, Nuno drove away. Guzman was later arrested in the house.
Nuno pleaded guilty to the robbery. [3]The counts that contributed to the sentence imposed were as follows: on count 6 (aggravated kidnapping of J.J.), life with possibility of parole (minimum seven years), plus 10-year enhancement. On count 7 (attempted murder of J.J.), life with possibility of parole (minimum seven years), consecutive. On count 2 (assault of J.J. with a deadly weapon-the principal term), nine years, plus four years stayed for the enhancement, consecutive. On count 4 (attempt to dissuade J.J. from reporting), eight months (one-third of two years), consecutive, plus four years stayed pursuant to section 654 for enhancement. On count 9 (attempt to dissuade N.F. from reporting) eight months, consecutive, plus four years stayed under section 654 for enhancement. On count 10 (kidnapping of N.F.), one year, eight months (one-third of five years), consecutive, plus 10 years consecutive for the enhancement. On count 11 (felony vandalism of gate), eight months (one-third of two years), consecutive, plus two years for the enhancement, consecutive. The sentences on other counts were stayed or ran concurrently, including count 1 (robbery of motel), three years stayed pursuant to section 654, plus 10-year enhancement, stayed. On count 3 (criminal threat of JJ), two years stayed pursuant to section 654, plus four years for enhancement, stayed pursuant to section 654 On count 5 (misdemeanor sexual battery of JJ), 180 days, concurrent. And on count 8 (criminal threat of N.F.), two years, stayed under section 654.
Guzman was charged with eleven crimes: robbery of J.J. (§ 211), with personal use of a firearm (§ 12022.53, subd. (b)) (count 1); assault with a semiautomatic firearm upon J.J. (§ 245, subd. (b)), with personal use of a firearm (§ 12022.5, subd. (a)) (count 2); making a criminal threat to J.J. (§ 422), with personal use of a firearm (§ 12022.5, subd. (a)) (count 3); attempting to dissuade a witness (J.J.) from reporting a crime (§ 136.1, subd. (b)(1)), with personal use of a firearm (§ 12022.5, subd. (a)) (count 4); misdemeanor sexual battery against J.J. (§ 243.4, subd. (e)(1)) (count 5); kidnapping of J.J. for the purpose of committing robbery (§ 209, subd. (b)(1)), with personal use of a firearm (§ 12022.53, subd. (b)) (count 6); attempted willful, deliberate, and premeditated murder of J.J. (§§ 664/187, subd. (a)) (count 7); making a criminal threat to N.F. (§ 422), with personal use of a firearm (§ 12022.5, subd. (a)) (count 8); attempting to dissuade a witness (N.F.) from reporting a crime (§ 136.1, subd. (b)(1)), with personal use of a firearm (§ 12022.5, subd. (a)) (count 9); kidnapping of N.F. (§ 207, subd. (a)), with personal use of a firearm (§ 12022.53, subd. (b)) (count 10); and felony vandalism (§ 594, subd. (b)(1)) (count 11). In addition, it was alleged that Guzman committed the charged felony offenses while released from custody on bail or on his own recognizance (§ 12022.1).
The jury convicted Guzman on all counts. He was sentenced to an indeterminate term of 14 years to life, plus a determinate term of 34 years 3 and eight months.
DISCUSSION
I. SUFFICIENCY OF EVIDENCE TO SUPPORT ASPORTATION ELEMENT OF KIDNAPPING
Guzman first contends that his conviction on count 6, the kidnapping of J.J. for the purpose of committing robbery, must be reversed because the evidence was insufficient to support a finding of asportation, i.e., that the victim was "kidnap[ed], or carrie[d] away." (§ 209, subd. (b)(1).)
As Guzman acknowledges, "a challenge to the sufficiency of the evidence to sustain a conviction is reviewed on appeal by considering 'the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence-that is, evidence which is reasonable, credible, and of solid value-such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.'" (Quoting People v. Whisenhunt (2008) 44 Cal.4th 174, 200.)
"[F]or aggravated kidnapping, the victim must be forced to move a substantial distance, the movement cannot be merely incidental to the target crime, and the movement must substantially increase the risk of harm to the victim. 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 (Dominguez); § 209, subd. (b)(2).)
The requirement of a "substantial distance" does not mean the victim must be moved any particular distance. "[N]o minimum distance is required to satisfy the asportation requirement" and the precise distance need not be proven. (Dominguez, supra, 39 Cal.4th at p. 1152; People v. Waqa (2023) 92 Cal.App.5th 565, 578.) Instead, the more salient question is whether the movement was merely incidental to the underlying crime, meaning it was part of the commission of that crime. (See People v. Washington (2005) 127 Cal.App.4th 290 (Washington), [movement of bank employee from teller area to the vault was merely incidental to the robbery because it was "necessary to obtain the money in the vault"]; People v. Williams (2017) 7 Cal.App.5th 644, 669 [store employees were moved "from locations closer to the front of the store (and visible from outside) to the rears of the store or to back rooms, where the merchandise and/or cash was kept.... None of the movements was unnecessary to the robbery"]; People v. Hoard (2002) 103 Cal.App.4th 599, 607 [movement of two employees to the back office of a jewelry store during a robbery was merely incidental].)
As Dominguez explained, determining whether movement was "merely incidental to the [crime], and whether the movement substantially increased the risk of harm to the victim, is difficult to capture in a simple verbal formulation that would apply to all cases. [Instead,] the jury must 'consider[ ] the "scope and nature" of the movement,' as well as the context of the environment in which the movement occurred.' [Citations.] This standard suggests a multifaceted, qualitative evaluation rather than a simple quantitative assessment. Moreover, whether the victim's forced movement was merely incidental to the [crime] is necessarily connected to whether it substantially increased the risk to the victim. 'These two aspects are not mutually exclusive, but interrelated.'" (Dominguez, supra, 39 Cal.4th at pp. 1151-1152.)
The Supreme Court observed in Dominguez that "[t]he essence of aggravated kidnapping is the increase in the risk of harm to the victim caused by the forced movement. [Citation.] We have articulated various circumstances the jury should consider, such as 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." (Dominguez, supra, 39 Cal.4th at p. 1152.)
The jury instructions in this case state that a kidnapping for purposes of robbery requires that "the defendant moved the other person or made the other person move a substantial distance" and that a "substantial distance means more than a slight or trivial distance. The movement must have increased the risk of physical or psychological harm to the person beyond that necessarily present in the robbery. In deciding whether the movement was sufficient, consider all the circumstances relating to the movement." That instruction does not entirely satisfy the Dominguez requirements. However, the instruction given which defined for kidnapping itself (§ 207, subd. (a)) did include the full Dominguez language: "Substantial distance means more than a slight or trivial distance. In deciding whether the distance was substantial, you must consider all the circumstances relating to the movement. Thus, in addition to considering the actual distance moved, you may also consider other factors such as whether the distance the other person was moved was beyond that merely incidental to the commission of the crime, whether the movement increased the risk of physical or psychological harm, increased the danger of a foreseeable escape attempt, or gave the attacker a greater opportunity to commit additional crimes, or decreased the likelihood of detection." Because we conclude the evidence was sufficient to support the jury's implied finding that Guzman's movement of J.J. "increased the risk of physical or psychological harm [to her]," which is the sole factor mentioned in the instruction for kidnapping for purposes of robbery, we find that any error in omitting the alternative factors referenced in Dominguez from that instruction was harmless. (See People v. Mil (2012) 53 Cal.4th 400 [Applying harmless error analysis to instructional error].)
When Guzman commenced his robbery, J.J. was near the entrance door to the lobby-the most public area of the motel. Guzman first moved her into the owner's room, where the safe was located. That movement was incidental to the robbery. However, having been twice thwarted in his effort to open the safe, Guzman did not terminate his robbery effort and release J.J., which is essentially what the bank robbers did in Washington after they were finished with the vault. (Washington, supra, 127 Cal.App.4th at p. 296 [after the robbers "opened the vault and removed cash[,] [o]ne of the robbers said, 'Thank you very much. Have a nice day,' before they walked out the back door of the bank"].)
Instead, Guzman forced J.J. from that back room to the area of the surveillance equipment room, with the idea he wanted to break into that room and obtain the surveillance footage which documented his crime. That movement was not incidental to the robbery.
The evidence was also sufficient to support the jury's conclusion that the movement increased J.J.'s risk of either psychological or physical harm. J.J. did what she could to cooperate with Guzman by trying to hand him the motel's cash box at the entrance to the lobby, and then by informing him about the safe in the owner's room and doing her best to open it for him. The jury could infer she was fearful that Guzman might harm her and was thus desperate to placate him and keep the encounter as brief and centralized as possible.
When Guzman thereafter refused to depart, and chose instead to force J.J. at gunpoint to another location within the motel, it is reasonable to infer J.J. would have been terrified. That terror placed her at increased risk of psychological harm.
The jury could also have concluded that being forced to move around the motel building with an increasingly agitated Guzman increased J.J.'s physical danger. Her fear that the situation could get even worse came to fruition when Guzman smashed the surveillance camera monitor, then sexually assaulted her, and finally attempted to strangle her. No inference was necessary to conclude that her continued movement resulted in increased risk of physical harm to her.
II. DISSUADING A WITNESS
In his supplemental opening brief, Guzman also challenges his conviction on count 9, dissuading a witness-N.F.-in violation of section 136.1, subdivision (b)(1).
Section 136.1, subdivision (b)(1), applies to "every person who attempts to prevent or dissuade another person who has been the victim of a crime or who is witness to a crime" from "[m]aking any report of that victimization to any peace officer or state or local law enforcement officer or probation or parole or correctional officer or prosecuting agency or to any judge."
Guzman argues this conviction must be reversed because (1) the evidence is insufficient to support a finding that he smashed N.F.'s phone with the intent to dissuade her from making a report to law enforcement; and (2) the prosecutor was required to charge him with the more specific misdemeanor offense of interfering with a wireless device to prevent the victim from reporting a crime, in violation of section 591.5. We reject both contentions.
In claiming the evidence is insufficient to support the conviction, Guzman argues that because N.F. had already been holding her cell phone in her hand when she walked into his crime scene, and she did not then make any additional move suggesting she was attempting to use it to report the crime she was witnessing, there is no basis to conclude he knocked the phone from her hand with the specific intent of accomplishing that. (See People v. McDaniel (1994) 22 Cal.App.4th 278, 284 [explaining that without evidence of specific intent "to affect or influence a potential witness's or victim's testimony or acts, no crime has been committed under this section"].)
To support his argument, Guzman cites People v. Cook (2021) 59 Cal.App.5th 586, 590, and People v. Navarro (2013) 212 Cal.App.4th 1336, cases in which the evidence suggested the victim/witness was literally reporting a crime at the time the defendant disabled the phone being used for that purpose. But neither of those cases stands for the proposition that evidence of a report-in-progress is required to demonstrate the defendant intended to dissuade such a report.
In this case, when N.F. walked in on Guzman as he was committing a crime, the jury could reasonably infer his intent in seizing the phone was to prevent her from using it to report that crime. In the absence of any evidence or suggestion that Guzman might have had an interest in preventing N.F. from using her phone for any other purpose, the jury could reasonably infer he did so to prevent her from using it to contact authorities and summon help. (See People v. Lenix (2008) 44 Cal.4th 602, 627 (Lenix) [Jurors may rely on circumstantial evidence to support a criminal conviction if they are "'convinced that the only reasonable conclusion supported by the circumstantial evidence is that the defendant is guilty'"].)
In any event, the even more significant flaw in Guzman's argument is his attempt to portray his effort to separate N.F. from her phone as the entire evidentiary basis for his dissuasion conviction. It was not. As Guzman acknowledges in his brief, the prosecutor's theory was that Guzman's effort to dissuade N.F. was far more serious than merely knocking her phone from her hand: "According to the prosecutor's theory, [Guzman's] plan to prevent [N.F.] from contacting law enforcement was 'to kill her, in order to ensure that she's not around to report him.'"
Specifically, the prosecutor argued that N.F. "interrupted [Guzman] attempting to strangle [J.J.] to death. She was a witness to an attempted murder. [¶] And as soon as [Guzman] became aware that she was in the room and saw his actions, he turned the gun on her and started to walk her outside to eliminate her[ ] as a witness....[T]his all happens over a matter of seconds. As he's walking [N.F.] outside to kill her, in order to ensure that she's not around to report him, in order to be a witness in this case, he sees that she's got that cell phone in her hand, and she told us that he ripped that phone away from her and throws it on to the ground."
Thus, while Guzman's act of forcing N.F.'s phone from her hand was evidence from which the jury could infer his intention was to prevent her from using that phone to report the crime, that act was not the only evidence of his intent to prevent her from contacting authorities. He also held a gun to her body and threatened to murder her. (See People v. Pettie (2017) 16 Cal.App.5th 23,71 ["Murder is one way to prevent a witness from [reporting a crime]".) The jury reasonably could infer his intent in doing so was to prevent her from reporting the crime she had witnessed.
Guzman's alternative contention is that his conviction for dissuading N.F. must be reversed because "it violates the rule stated in In re Williamson (1954) 43 Cal.2d 651 [(Williamson)] that, when a general statute prohibits the same conduct as a more specific statute, a defendant cannot be prosecuted under the general statute." He argues his conviction violates Williamson because his dissuasion of N.F. could have been prosecuted under the more specific provision of section 591.5, which defines the misdemeanor offense of interfering with a wireless communication device.
Section 591.5 states: "A person who unlawfully and maliciously removes, injures, destroys, damages, or obstructs the use of any wireless communication device with the intent to prevent the use of the device to summon assistance or notify law enforcement or any public safety agency of a crime is guilty of a misdemeanor."
Guzman's argument again ignores the fact that the dissuasion charge was not based solely on his interference with N.F.'s use of her cell phone. If Guzman's attempt to dissuade N.F. had been limited to snatching her cell phone from her hand and throwing it to the ground, or grabbing it from her and running away, his argument might have merit. But as we have already noted, the facts related to this charge were not so limited.
Guzman's dissuasion effort was broader, and more serious, than what section 591.5 prohibits. Because section 591.5 was inadequate to address the breadth and seriousness of Guzman's dissuasion effort in this case, we find no error in the prosecution's decision to alternatively charge him under section 136.1, subdivision (b)(1).
DISPOSITION
The judgment is affirmed.
WE CONCUR: O'LEARY, P. J. SANCHEZ, J.