Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Tulare County No. VCF197610B. Gerald F. Sevier, Judge.
Valerie G. Wass, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Catherine Tennant Nieto, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Poochigian, J.
INTRODUCTION
Appellant/defendant Edward Johnson (Johnson) was convicted with codefendants Benjamin Hernandez (Benjamin) and Francisco Hernandez (Francisco) of multiple felonies arising from their participation in an armed robbery of a Chevron store in Porterville. The other robbery participants were Michael Santoyo (Michael) and Ricky Lucero (Ricky). Benjamin, Francisco, Johnson, and Ricky were members of the Fresno Bulldog gang. Michael was not a gang member, but he previously worked at the store and knew where the money was kept. Michael told his girlfriend, Felecia Hernandez (Felecia), about the large amount of cash kept in the store’s office. Felecia was Francisco’s sister and Johnson’s cousin, she knew they were in the Fresno Bulldog gang, and she told her brother about the money in the store. The armed robbers brutally beat the store clerk with a baseball bat and stole approximately $160,000.
Many of the defendants and witnesses in this case were related to each other and/or had the same last name. We will use their first names to avoid confusion.
Johnson was convicted of count I, kidnapping to commit robbery of the store clerk (Pen. Code § 209, subd. (b)), count II, robbery of the store clerk as a Chevron employee (§ 211); count III, assault with a firearm (§ 245, subd. (a)(2)); simple assault (§ 240) as a lesser offense of count IV, assault with a deadly weapon, a bat; count V, conspiracy to commit robbery (§ 182); and count VI, robbery of the clerk’s personal property. As to counts I, II, III, V, and VI, the jury found true the special allegations that he committed the offenses for the benefit of a criminal street gang (§ 186.22, subd. (b)); a principal personally used a handgun (§ 12022.53, subds. (b) & (e)(1)); and the property taken exceeded $50,000 (§ 12022.6, subd. (a)(1)).
All further statutory citations are to the Penal Code unless otherwise indicated.
On appeal, Johnson contends there is insufficient evidence to support his conviction for kidnapping to commit robbery, and he was improperly convicted of two counts of robbery. Johnson further contends there is insufficient evidence to support the gang enhancements, and he raises sentencing issues. We will reverse one of the robbery convictions and otherwise affirm.
FACTS
Around 9:50 p.m. on Friday, January 25, 2008, Yassen Saeed (Yassen), the manager of the N &S Chevron store near Porterville, was preparing to close the store. Yassen was cleaning the fountain drink area, and his back was to the store’s front door and windows. The store was well lit inside so that a person in the parking lot could see into the store through the front windows. There were no customers in the store, and Yassen’s coworker was outside cleaning the parking lot.
Yassen heard the door open and turned around. Four masked men ran into the store and rushed up to him. Yassen was completely surprised. All the men were yelling at Yassen to “get down, ” and they shouted that “we’re gonna shoot you; we’re gonna kill you.” One man held a metallic handgun, another man had a shotgun, and a third man had a baseball bat.
The two gunmen pointed their firearms at Yassen’s face and head at close range. They pushed Yassen down on his knees and then ordered him to go to the storage area in the back of the store. Yassen testified he was scared for his life, he did not struggle, and he did what they told him to do. Yassen could not see their faces because they were wearing masks and he was looking down at the floor most of the time.
Yassen testified the men pushed and dragged him from the fountain drink area to the back storage room, which was not open to the public. “[T]hey dragged me all the way from this... coffee area, all the way to the back...” Yassen testified that when he reached the storage room, someone struck him on the head with the baseball bat and he passed out. “They took me to the back, very fast. I don’t think it was even maybe a minute... and, I mean, I was out.” “[T]he last thing I remember—I mean, I passed out. I mean, I got—you know, they whacked me with a baseball bat on the head.” The entire encounter happened very quickly and lasted barely one minute.
When Yassen regained consciousness, he was suffering from a head injury and realized the rest of his body was “all bruised up, ” including his fingers, eyes, and face. His “whole head was... big as a basketball, ” and he could not move his eyes.
Yassen discovered that $800 of his own money, from cashing his paycheck, was missing from his back pocket. He also discovered that over $160,000 had been taken from the store’s back office, which was adjacent to the storage room. The store kept a large amount of cash in that office on Friday nights to cash checks for the weekend. The store’s cash registers, which contained about $8,000, had not been disturbed.
The parking lot
At the time of the robbery, David Santoyo (David), Yassen’s coworker, was cleaning the parking lot and did not realize what was going on in the store. David noticed a four-door silver Mitsubishi was parked behind the store, next to the back door. The driver was wearing a hooded sweatshirt and was the only person in the car. David did not see anyone get in or out of the vehicle, and it drove away from the back door at a slow speed. A few moments later, as David was cleaning the parking lot, a customer drove up to the store and saw a silver Mitsubishi “flying out of the parking lot.” The customer and David found Yassen walking around outside, his head covered with blood. They realized the store had been robbed and called 911.
Yassen was in the hospital for one week and repeatedly suffered seizures as a result of his head injuries. He was placed on various medications, but his seizures were so serious that he could not return to work.
The investigation
The investigating officers found a pool of blood in the store’s rear hallway leading to the storage room and office. The distance from the fountain drink area to the back storage room was 36 feet. There were no fingerprints found in the store.
The store had a closed-circuit videotape system with multiple cameras, and the videotape showed four men rushing into the store and accosting Yassen. Yassen watched the store’s videotape and realized a fifth masked man entered the store after he was knocked out. Yassen immediately recognized the fifth masked man as Michael Santoyo (Michael), David’s brother and the store’s former assistant manager, based on the distinctive way Michael walked and carried himself.
Yassen and Michael had been good friends, and they had worked together at the Porterville store for several years. Yassen and David testified that Michael seemed to lose his focus about working at the store when he started dating Felecia Hernandez (Felecia), who lived in Fresno. About a month before the robbery, Michael borrowed the store’s truck and wrecked it, and he did not return to his job. About two weeks after he wrecked the truck, he returned with the damaged vehicle and asked for his job back, but he was not rehired. David continued to work at the store after Michael left.
Yassen testified that Michael knew the store kept a large amount of cash on hand on Friday nights and that the cash was in three specific places in the store’s back office. The office door was usually locked, but Yassen and Michael kept a little knife next to the breaker box, and they used that knife to pry open the office door if they forgot the keys. The videotape of the robbery showed Michael reaching up to the breaker box, taking out the little knife, and prying open the office door. Yassen realized that he had seen Michael parked in front of the store about four days before the robbery.
Fidel Saeed, another store employee, watched the videotape and immediately recognized Michael as one of the masked men, based on his familiarity with Michael’s distinctive walk. David also watched the videotape and saw someone who looked very similar to Michael, and realized Michael had visited the store about two days before the robbery.
After the robbery
A few hours after the robbery, Michael and his girlfriend, Felecia, appeared at the house of Felecia’s cousin, Melissa Gallegos (Melissa). Felecia gave Melissa a large amount of cash in $20 bills. Felecia said the money belonged to her. Felecia told Melissa to hide the cash and she would be back to retrieve it.
Michael and Felecia left Fresno and ended up in Merced. Michael was remorseful about the robbery and called the sheriff’s department and told them about the crime. Tulare County Sheriff’s Detective Genaro Pinon met Michael and Felecia in Merced and separately interviewed them. Michael and Felecia initially denied any personal involvement, but they eventually revealed the names of the robbery participants. Felecia directed the officers to an alley in Merced and showed them a purse that they had hidden in the bushes; it contained part of their share of the robbery cash.
Michael voluntarily testified as a prosecution witness without a plea agreement. Michael testified he regretted committing the robbery and he sent a letter of apology to Yassen.
Michael testified for the prosecution, admitted his involvement in the robbery, and insisted he did not plan the crime. Michael used to manage the Porterville store and knew about the large amount of cash in the store’s office. Michael testified that one evening, he was with Felecia when she mentioned that her brother, Francisco, was going to rob a small Chevron store in Fresno with his friends. Michael told Felecia that a small gas station would not have much cash, “and then I just told her that it’s not like the store I used to work at.” Michael trusted Felecia and told her about the cash in the Porterville store’s office, but he did not tell her that they should rob the store. Felecia became excited about the information, and said, “If you tell my brother, he’ll give you most of the money, and I just looked at her like if she was crazy.” However, Felecia called Francisco and said, “We know a place where we could go rob.”
Michael testified that Felecia pressured him to tell Francisco and his friends to rob the store. Felecia promised she would not be involved. Michael did not want to rob the store or talk to Francisco. Felecia told Michael that Francisco and his friends were going to rob the store, and Francisco would do something bad to him if he did not go through with the robbery.
Michael knew that Francisco was a member of the Fresno Bulldog gang, and he was scared because he had heard things about Francisco and his friends. Francisco had previously threatened Michael because he felt Michael failed to adequately defend Felecia from another person who was disrespectful to her. Michael testified he did not want to commit the robbery but “just thought like I had to do it.”
A few hours before the robbery, Michael met with Ricky, Francisco, Benjamin, and Johnson at the Fresno apartment of Celena Gonzales (Celena), Francisco’s girlfriend. Michael did not know Benjamin or Johnson. Michael and Felecia then drove from Fresno to Porterville in Michael’s black car. Michael directed her to park next to an orchard about a mile away from the store. Francisco, Benjamin, Ricky, and Johnson arrived in Celena’s silver Mitsubishi. Michael got into the silver car with the other men, and they drove to the store with the intent to rob it. Felecia stayed behind and waited for them in the black car. Michael testified that Francisco had a silver handgun and Johnson had another handgun. Michael had already seen these weapons at Celena’s apartment. Michael thought either Benjamin or Ricky had a baseball bat. He did not see anyone with a shotgun.
When they arrived at the store, Michael panicked because he saw his brother, David, working in the parking lot. Michael did not know that David was working that night. Michael stayed outside while Benjamin, Francisco, Ricky, and Johnson went inside the store together. Benjamin stood at the front door, waved at Michael to go inside, and told him to go to the back of the store. Michael went in and found Yassen lying on the hallway floor. Yassen was moaning and holding his head, and Michael realized Yassen was badly injured.
Michael testified he was afraid when he saw Yassen, but someone told him to get the money and he complied. Michael used something to pry open the office door. He thought he took about $130,000. Michael and the others left through the back door. Francisco pulled up in the silver car and they escaped.
Michael testified they drove back to Felecia’s location, and they put the robbery money in Michael’s black car. Felecia drove away in the silver car and the men split up. Later that night, Michael, Felecia, Francisco, Benjamin, and Johnson met Ricky at his house in Fresno. Francisco divided the robbery proceeds and gave $20,000 to each man, including himself. Francisco gave the rest of the money, about $50,000, to Michael. Michael and Felecia went to Melissa’s house and gave her some of the money to hide. Michael and Felecia drove to Stockton the next morning, and they had some of the money with them.
Michael testified he did not commit the robbery for the money and he wanted to give back the money to the store. Michael told Felecia that he would be recognized on the store’s video cameras. Felecia warned Michael not to call the police, and Francisco had already told him not to do anything stupid. Nevertheless, Michael called Detective Pinon and told him about the robbery. Michael believed the others were still free. He initially swore to Pinon that he was not involved in the robbery and he was never at the store. When Pinon told him that “the other guys were in custody, ” Michael confessed to his involvement and told him everything.
Felecia pleaded guilty to kidnapping and conspiracy to commit robbery, with a maximum term of nine years, and she agreed to testify truthfully for the prosecution pursuant to her plea agreement.
Felecia also testified for the prosecution and offered a slightly different story. Felecia claimed that about a week before the robbery, Michael said he knew about a store they could rob. Michael said the store had lots of money on Fridays and Saturdays, he used to work there, and they owed him. Both Michael and Felecia told Francisco about the money. Benjamin, Johnson, and Ricky later became involved in the robbery plans with Francisco. Felecia knew about the Fresno Bulldog gang and that Francisco was also known as “Bandit.” Felecia testified that Francisco, Johnson, and Ricky never talked about the gang in front of her.
Felecia denied pressuring Michael into participating in the robbery or forcing him to tell the others about the money at the store. Felecia just asked Michael if he was sure that he wanted to do it. Michael said that if he could not get Francisco and his friends to perform the robbery, he would find other people and it would get done either way.
Felecia testified they planned the robbery a few hours before it happened when they were at Celena’s house, but Johnson and Benjamin were not there. Felecia drove Michael in his black car to Porterville and they parked in a rural area. Francisco, Benjamin, Ricky, and Johnson followed them in Celena’s silver car. Michael got out of the black car, joined the men in the silver car, and they drove to the store while Felecia waited for them in the black car. The men returned from the robbery in the silver car, and they switched cars with Felecia.
Felecia testified Michael received money from the robbery. Felecia gave some of the cash to her cousin, Melissa, and told her to hold it for her. Felecia and Michael later drove to Stockton and then Merced. Some of the money was in her makeup bag, and they threw it in the bushes as they drove to Merced.
Felecia testified that Michael told her what to say if they were caught. Felecia admitted that she initially lied to Detective Pinon when he asked her about the robbery. Felecia decided to tell the truth after she learned that she could be charged as an accessory and go to jail. She identified Francisco, Ricky, Johnson, Michael, and Benjamin as the robbers.
Celena’s trial testimony
Celena was Francisco’s girlfriend. Celena did not know if Francisco was affiliated with the Fresno Bulldog gang, but admitted her brother had a dog paw tattoo on his hand. Celena described Felecia, Benjamin, Ricky, Michael, and Johnson as her brother’s friends. Celena testified Francisco and the others met at her apartment for a barbeque on the day of the robbery. They talked in the carport but Celena was not present. Felecia asked to use Celena’s silver car because they were going to another party and needed two cars. Celena agreed and gave her keys to Felecia. Everyone left in Celena’s car and another vehicle. Celena testified she did not know anything about the robbery and never got her car back.
The search warrants
Michael and Felecia directed the officers to various homes and other locations that were connected to the robbery, and law enforcement officers obtained search warrants based on their information. At the house associated with Benjamin, the officers recovered a shoebox with $17,520 in multiple bundles of $20’s and $100’s. The officers found over $1,000 at a residence tied to Ricky. The officers found $21,000 at Celena’s house, along with black and gray sweatshirts, ski masks, and gang paraphernalia.
Benjamin’s postarrest statement
Benjamin was arrested and Tulare County Sheriff’s Detective William Seymour interviewed him. Benjamin said he had been a member of the Fresno Bulldog gang since he was nine years old. Benjamin said he stopped being involved in the gang when he became a father, but refused to say that he had dropped out of the gang.
The court instructed the jury that Benjamin’s statement was only admissible against him and not against Francisco or Johnson.
Benjamin admitted he was involved in the robbery and said he did it because he needed money. He was armed with a knife and held the store’s door open for the other men. Benjamin said he ordered one of his accomplices to put on his mask as he went into the store. Benjamin wore a hooded sweatshirt and pulled his sweatshirt sleeves over his hands to avoid leaving fingerprints in the store. Benjamin denied that he assaulted Yassen.
Michael was the fifth man to enter the store, and the robbery videotape showed Benjamin gesture to the fifth man to adjust his mask.
Benjamin thought they would just get a few hundred dollars from the robbery. He was surprised when he saw how much money they got. Benjamin received $20,000 as his share. He spent about $1,000 on “odds and ends, ” including movies, clothes, and shoes. He left the rest of the money in a shoebox at a girlfriend’s house. Benjamin said he was going to give the money to his family.
Apprehension of Francisco and Johnson
After Felecia and Michael were arrested, Melissa contacted Francisco and told him that Felecia left some cash with her. Francisco picked up the cash from Melissa’s house. Francisco then called Melissa’s sister, Aida Gallegos (Aida), who lived in Plains, Texas. Francisco told Aida that he wanted to start a new life, get away from the gangs, and get a job in the Texas oil fields. Aida had not heard from Francisco for several years, but she agreed that he could live with her. At the end of the month, Francisco and his cousin, Johnson, arrived in Plains. They stayed with Aida for a few days, and Francisco and Johnson bought a new stereo system for her car. Francisco and Johnson later moved into a rented trailer and found jobs in Plains. They paid cash for new furniture and also bought pure-bred pit bulls.
Around midnight on March 8, 2008, Deputy William Robles of the Texas Department of Public Safety conducted a traffic stop of Francisco’s vehicle. Johnson and two juvenile females were also in the car. Robles smelled the strong odor of marijuana in the car. Robles asked Francisco for his driver’s license. Francisco identified himself by giving the name and birth date of Aida’s brother. Johnson produced a California driver’s license with someone else’s photograph. Johnson acted aggressive, mad, and uncooperative.
Robles arrested both Francisco and Johnson. During the booking process, Francisco gave his true name and said he was wanted for robbery in California. The officers later searched their trailer and found marijuana and $2,200 in cash.
Detective Pinon traveled to Texas and interviewed Johnson. Pinon asked Johnson if he was tired of running and Johnson said yes. Pinon also interviewed Francisco, who denied any involvement in the robbery or even being at the store. Francisco admitted that he knew Ricky. Francisco eventually admitted he was somehow involved in the robbery and “mentioned the domino effect. If they arrested his sister [Felecia], they would go after him ‘cause he had priors, and he didn’t want his sister to get in any trouble. So he went and picked up the money [from Melissa] and was gonna attempt to get a lawyer for [Felecia].” Francisco said he picked up about $42,000 from Melissa’s house in Fresno and then headed for Texas. Francisco believed he spent $20,000 in Texas and thought there was about $22,000 left in the trailer.
The court instructed the jury that Francisco’s statement was only admissible against him.
The videotape
The prosecution played the videotape of the robbery for the jury. In his closing argument, the prosecutor narrated the videotape and asserted the robbers entered the store in the following order: Francisco, Johnson, Ricky, Benjamin, and then Michael. Francisco and Johnson had guns and Ricky had the baseball bat. The videotape showed two men confront Yassen, push him to the floor, and drag him to the back. One man had a gun and the other man had a baseball bat, and the prosecutor asserted that these men were Francisco and Ricky. The videotape showed that a third man stayed in the middle of the store. The prosecutor identified this man as Johnson, who acted as a “pivot man” between the men in the front and back of the store. The fourth man, Benjamin, stayed at the front door as a lookout and gestured to the fifth man, Michael, to enter. When Michael walked into the store, Benjamin gestured toward him and Michael adjusted his face mask. Michael walked to the back of the store, and another camera angle showed him reach for something and pry open the office door. Johnson and Benjamin remained in their respective places in the middle of the store and at the front door, and then they ran to the back of the store.
Assault on Ricky Lucero
In September 2008, eight members of the Fresno Bulldog gang were held in the same cell unit at the Fresno County jail. The group included Ricky, Francisco, and Johnson. A deputy heard a disturbance and saw Francisco walking away from Ricky. Ricky was unconscious on the floor. The deputy examined the hands and knuckles of the other cellmates, and Francisco was the only man who had redness on his hands, which indicated he had just been in a fight.
In October 2008, the preliminary hearing was scheduled for the jail assault. Ricky’s grandmother gave a handwritten letter to an officer. The letter was addressed to Ricky’s brother, Joe, and signed by “Bandit, ” which was Francisco’s nickname. Ricky’s grandmother knew that Ricky, Joe, and Francisco were friends.
In the letter, “Bandit” apologized “to a dog I care for” that he beat up Ricky, but explained that Ricky left him no choice. Bandit explained that he warned Ricky not to talk about Bandit’s sister, but Ricky did so anyway. Bandit was upset because Ricky refused to help his “homies” and he was more concerned about his own case. Bandit wrote that they just jumped Ricky, and they didn’t slice or beat him as much as they should have because of the situation.
The court instructed the jury that this letter was admissible against all the defendants.
Gang Expert Witness
Tulare County Sheriff’s Deputy Yandell of the department’s gang violence suppression unit testified as the prosecution’s gang expert. Yandell testified the Fresno Bulldogs claimed the City of Fresno and unincorporated areas of Fresno County as their turf. The gang included Hispanics, African-Americans, and some Caucasian members. The Bulldogs claimed the color red, and their symbols included a dog paw, a bulldog’s face, and the word “bulldog.” The gang members frequently “bark” during the commission of crimes. The Fresno Bulldogs’ criminal activities included armed robbery, burglary, narcotic sales, possession of firearms, battery, murder, attempted murder, and vandalism. Yandell explained that gangs need money to survive, so gang crimes often involve drug sales and distribution to get that money.
Yandell testified that Benjamin had tattoos of a dog paw and the letters “DPB, ” which meant the Daisy Park Bulldogs, a subset of the Fresno Bulldogs. Johnson, who was part Hispanic and part African-American, had an “MSD” tattoo on the back of his head, which meant the McKenzie Street Dogs, another subset of the Fresno Bulldogs. Francisco had several gang-related tattoos, including two dog paws, a bulldog’s face, and “ES” on the back of his head which meant “East Side.” Felecia was connected to the Bulldogs through her brother, Francisco, and her cousin, Johnson. Michael did not have any known prior gang connections.
Yandell testified that when Michael and Felecia were arrested, they were not housed with other members of the Fresno Bulldogs.
Yandell testified that, in his opinion, the robbery of the Porterville Chevron store boosted the notoriety of the Fresno Bulldogs and fit the pattern of their prior crimes. The store’s surveillance videotape showed the robbers “entered [the store] single file with specific assignments as to which person has which job of holding the door versus contacting the victim versus making their way to the safe, so on and so forth, and then with the splitting of the money.” The robbery was widely reported in the media because of the large amount of money that was stolen. The attention increased the standing of the gang itself, as well as the individual gang members who committed the crime.
Yandell testified it was particularly significant that multiple gang members committed the robbery, because the participants planned the execution of the crime and worked together to commit it. Yandell further testified that gang members protect each other by refusing to identify their crime participants to law enforcement officers. They work with each other to hide weapons and money. “What I’m saying is that gang members in my experience have a tendency to lie to the police much more often than your average thief, for instance, or burglar.” The gang members value the concept of respect, and they gain respect by committing violent crimes and stealing large amounts of money. They would deal with anyone who cooperates with law enforcement by beating or “slicing” them. Yandell testified that in the gang world, “it’s all about image, and it’s about portraying the tough guy image and having the money.”
Yandell testified that committing a robbery in less than three minutes and stealing $160,000 provided extensive funding for the perpetrators’ criminal activities. The large amount of cash stolen from the store enabled the gang members to further their criminal lifestyles for a substantial period of time without having to work at selling small quantities of drugs.
Yandell conceded the robbery participants did not show gang colors or shout gang slogans during the crime. He also conceded that Michael received the majority of the money even though he was not a Fresno Bulldog. Yandell was not aware of any Fresno Bulldog activity where Francisco and Johnson were hiding in Plains, Texas. However, based on a hypothetical similar to the instant robbery, Yandell testified that the robbery was a Bulldog-related crime because four participants were validated gang members and the gang members planned the robbery, obtained the weapons, executed the crime, held the weapons, and split the money. Even though two participants were not validated gang members, they provided the critical information for the validated gang members to plan and execute the crime, and the gang members were the men who carried the weapons and assaulted the clerk.
Defense evidence
Francisco and Benjamin did not testify.
Johnson testified that he was not involved in the planning or execution of the robbery and he was never at the store. Johnson claimed he was home on the day of the robbery because he was recovering from a broken jaw. He could not remember what he was doing that day because his jaw was wired and he was on pain medication.
Johnson admitted he was a member of the Fresno Bulldogs. He had an “MSD” tattoo on the back of his head, which represented his street gang, the McKenzie Street Dogs. Johnson denied committing any crimes for his gang. Johnson knew that Francisco was a member of the Fresno Bulldogs and his moniker was “Bandit.” Johnson had only met Benjamin a few times but agreed Benjamin’s tattoos showed his affiliation with the Fresno Bulldogs.
Johnson admitted he went to Texas a few weeks after the robbery. Johnson heard on the news that he was a suspect in the robbery and considered armed and dangerous. Johnson was afraid that the police would kill him. Johnson talked to Francisco, who denied committing the robbery. Johnson and Francisco agreed to meet in Texas. Johnson had been a full-time student at Fresno City College. He had just received a financial aid check and had about $700 left over, and left for Texas with that money. Johnson testified that Francisco had a lot of cash when they lived together in Texas. Francisco said he was holding the money for his sister to protect her from being linked to any evidence.
Johnson admitted he produced a false identification card when the officer pulled them over in Texas. Johnson found the card in Fresno and kept it so he could hide from the police. Johnson admitted that after he was arrested in Texas, he told an officer that he was tired of running, but he meant that he was tired of running for a crime he did not commit.
Johnson knew Ricky was a member of the Fresno Bulldogs. Johnson admitted he was in the jail cell when Ricky was beaten. Johnson did not know that Ricky was going to be assaulted. Johnson asked Francisco why he was “rolling out a fellow dog.” Francisco said it was because Ricky was “taking down” Felecia.
DISCUSSION
I. Substantial evidence of kidnapping to commit robbery.
As to count I, kidnapping of Yassen to commit robbery (§ 209, subd. (b)), Johnson contends there is insufficient evidence of the asportation element to support his conviction. Johnson argues the robbers’ movement of Yassen through the store was only incidental to the robbery itself and that movement did not increase the risk of harm.
“In assessing the sufficiency of the evidence, we review the entire record in the light most favorable to the judgment to determine whether it discloses evidence that is reasonable, credible, and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] Reversal on this ground is unwarranted unless it appears ‘that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].’ [Citation.]” (People v. Bolin (1998) 18 Cal.4th 297, 331.)
The asportation element of kidnapping for the purposes of robbery, also known as aggravated kidnapping, “requires movement of the victim that is [1] not merely incidental to the commission of the underlying crime and [2] that increases the risk of harm over and above that necessarily present in the crime of robbery itself. [Citations.] ‘These two aspects are not mutually exclusive, but interrelated.’ [Citations.]” (People v. Martinez (1999) 20 Cal.4th 225, 232-233 (Martinez).) “The essence of aggravated kidnapping is the increase in the risk of harm to the victim caused by the forced movement. [Citation.]” (People v. Dominguez (2006) 39 Cal.4th 1141, 1152.) “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 [underlying felony] is necessarily connected to whether it substantially increased the risk to the victim.” (Ibid.) “Although any assessment of the Daniels/Rayford test necessarily must include a consideration of the actual distance the victim was forced to move [citation], we have repeatedly stated no minimum distance is required to satisfy the asportation requirement [citation], so long as the movement is substantial [citation]. (Ibid.)
The California Supreme Court previously construed the asportation requirement of aggravated kidnapping to require that the movement of the victim “substantially increase the risk of harm over and above that necessarily present in the crime of robbery … itself.” (People v. Daniels (1969) 71 Cal.2d 1119, 1139 (Daniels), italics added; see also People v. Rayford (1994) 9 Cal.4th 1, 12-13 (Daniels).) “In 1997, the Legislature added to the aggravated kidnapping statute Rayford's and Daniels's requirement of an ‘increase of risk of harm.’ [Citation.]” (People v. Ortiz (2002) 101 Cal.App.4th 410, 414-415, italics added.) The aggravated kidnapping statute “thus codifies both Rayford... and a modified version of the … Daniels... asportation standard. [Citations.] Unlike our decisional authority, it does not require that the movement ‘substantially’ increase the risk of harm to the victim. [Citation.]’ (Martinez, supra, 20 Cal.4th at p. 232, fn. 4.) “As such, the movement of the victim in an aggravated kidnapping must increase the risk of harm beyond that inherent to the underlying crime, but ‘does not require that the movement “substantially” increase the risk of harm to the victim.’ [Citation.]” (People v. Ortiz, supra, 101 Cal.App.4th at p. 415.)
As to the first asportation element, “[i]n determining ‘whether the movement is merely incidental to the [underlying] crime... the jury considers the “scope and nature” of the movement. [Citation.] This includes the actual distance a victim is moved. However, we have observed that there is no minimum number of feet a defendant must move a victim in order to satisfy the first prong.’ [Citations.]” (Martinez, supra, 20 Cal.4th at p. 233, second set of brackets in original.)
The second asportation element “‘refers to whether the movement subjects the victim to a substantial increase in risk of harm above and beyond that inherent in [the underlying crime]. [Citations.] This includes consideration of such factors as the decreased likelihood of detection, the danger inherent in a victim's foreseeable attempts to escape, and the attacker's enhanced opportunity to commit additional crimes. [Citations.] The fact that these dangers do not in fact materialize does not, of course, mean that the risk of harm was not increased. [Citations.]’ [Citations.]” (Martinez, supra, 20 Cal.4th at p. 233.) “The ‘risk of harm’ test is satisfied when the victim is forced to travel a substantial distance under the threat of imminent injury by a deadly weapon. [Citation.]” (In re Earley (1975) 14 Cal.3d 122, 131.)
Johnson’s conviction for aggravated kidnapping is supported by overwhelming evidence. The robbers’ movement of Yassen from the front of the store to the rear storage room was not merely incidental to the robbery. Yassen was moved within the store itself, but the actual distance was approximately 36 feet. (See, e.g., Martinez, supra, 20 Cal.4th at pp. 230, 237-238 [movement of victim 40 to 50 feet away from house was not necessarily insubstantial].) While Johnson characterizes the distance as minimal, “relatively short distances have been found not to be incidental where the movement results in a substantial change in ‘the context of the environment.’ [Citations.]” (People v. Diaz (2000) 78 Cal.App.4th 243, 247.) The robbers entered the store just before closing, when Yassen was alone and his coworker was in the parking lot. They did not demand that Yassen open the registers or give them cash. Instead, they ordered Yassen into the storage area. Even though Yassen did not resist, they dragged him from the front of the store, where someone in the parking lot could have easily seen inside, to the rear storage area, which was secluded from public view. This movement subjected Yassen to a substantial increase in the risk of harm “’above and beyond that inherent in [the underlying crime].’ [Citations.]” (Martinez, supra, 20 Cal.4th at p. 233.)
Once the assailants had Yassen in the back room, they again declined to ask where the money was or demand that he open the safe in the back office. Instead, they beat Yassen unconscious, and apparently continued to beat him after he passed out since he suffered injuries to his entire body. The beating was so severe that Yassen suffered repeated seizures after the assault. As they dragged and beat Yassen, Benjamin gestured Michael into the store, and Michael used his injured coworker’s regular technique to pry open the office door and get the money.
Johnson cites a series of cases where the movement of robbery victims within business establishments was found insufficient to constitute aggravated kidnapping. In those cases, however, the movement of the victims was accomplished for the robbers to gain access to the cash or property within those businesses. (See, e.g. People v. Hoard (2002) 103 Cal.App.4th 599, 601-602, 607; People v. Washington (2005) 127 Cal.App.4th 290, 294, 300 [incidental movement of robbery victim from teller area of bank to location of vault]; In re Crumpton (1973) 9 Cal.3d 463, 466-467 [forcible movement of victim 20 to 30 feet behind a truck parked at service station merely incidental to robbery]; People v. Williams (1970) 2 Cal.3d 894, 899, 903 [insufficient evidence of asportation because movement around a service station and its adjacent outdoor area was similar to movement within a place of business or other enclosure, and necessary to gain access to property].)
As explained in People v. Diaz, supra, 78 Cal.App.4th 243, however, “incidental movements are brief and insubstantial, and frequently consist of movement around the premises where the incident began. [Ciations.]” (Id. at p. 247.) “By contrast, relatively short distances have been found not to be incidental where the movement results in a substantial change in ‘the context of the environment.’ (See, e.g., People v. Rayford, supra, 9 Cal.4th at p. 23 [105 feet at night from parking lot to less visible location next to wall in adjacent empty lot not incidental to intended rape]; People v. Jones (1999) 75 Cal.App.4th 616, 629-630 [25 to 40 feet across a school parking lot and into the victim’s own car not incidental to intended robbery, where defendant intended to drive away but victim immediately escaped]; People v. Salazar (1995) 33 Cal.App.4th 341, 347 [29 feet from outside motel room door, through the room, and into a bathroom not incidental to intended sexual assault].)” (People v. Diaz, supra, 78 Cal.App.4th at p. 247.)
In this case, the robbers’ movement of Yassen from the front of the store to the rear storage area was not an integral part of the robbery because they already knew where the money was and how to get it. As explained in Martinez and Daniels, the robbers’ movement of Yassen from the front of the store into the rear storage area subjected him to a substantial increase in the risk of harm above and beyond that inherent in the robbery itself, because it resulted in a substantial change in the context of the environment, enhanced the danger to the victim, and enabled the robbers to commit the assault on Yassen. (Martinez, supra, 20 Cal.4th at p. 233; Daniels, supra, 9 Cal.4th at pp. 13-14.)
II. Johnson’s convictions for two counts of robbery.
Johnson was convicted of two counts of robbery: count II, robbery of Yassen as a Chevron employee, and count VI, robbery of Yassen’s personal property of $800. Johnson contends he cannot be convicted of two robbery counts because he only inflicted force or fear upon one victim. Based on the unique facts and circumstances of this case, we agree and will reverse count VI.
A. Robbery and constructive possession
“Robbery is the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear.” (§ 211.) Robbery “consists of larceny plus two aggravating circumstances: (1) when the property is taken from the person or presence of another, and (2) when the taking is accomplished by the use of force or threatened force. [Citations.]” (People v. Marquez (2000) 78 Cal.App.4th 1302, 1308 (Marquez).) “The force or fear required by section 211 is not synonymous with a physical corporeal assault. [Citation.]” (People v. Mungia (1991) 234 Cal.App.3d 1703, 1708.) “[T]he force required for robbery is more than an incidental touching. A pickpocket touches the victim in extracting a wallet from his pocket, but this does not make the pickpocket a robber. The force required for robbery is more than ‘just the quantum of force which is necessary to accomplish the mere seizing of the property.’ [Citation.]” (People v. Garcia (1996) 45 Cal.App.4th 1242, 1246, disapproved on other grounds by People v. Mosby (2004) 33 Cal.4th 353, 365, fn. 2.)
If the defendant does not harbor the intent to take property from the possessor at the time he applies force or fear, the taking is only a theft and not a robbery. (People v. Davis (2005) 36 Cal.4th 510, 562.) When a defendant takes property from an unconscious victim and the victim’s lack of resistance or unconscious state is not due to the defendant’s actions, the force element of robbery does not exist. (People v. Kelley (1990) 220 Cal.App.3d 1358, 1368.) However, “a victim of robbery may be unconscious or even dead when the property is taken, so long as the defendant used force against the victim to take the property. [Citations.] There is no requirement that the victim be aware that his property is being taken from his presence by force or fear.” (People v. Jackson (2005) 128 Cal.App.4th 1326, 1330-1331.)
Robbery is “generally committed in three phases, which are assault of the victim, seizure of the victim’s property, and the robber’s escape to a location of temporary safety. [Citation.] The crime of robbery is not confined to the taking of property from the victim, and the crime is not completed until the robber has won his way to a place of temporary safety. [Citation.] Thus, a robbery may be a continuing crime, spread over distance and time. [Ciation.]” (People v. Irvin (1991) 230 Cal.App.3d 180, 185 (Irvin).)
Robbery is a crime against both the person and property. (People v. Gomez (2008) 43 Cal.4th 249, 264; People v. Fleetwood (1985) 171 Cal.App.3d 982, 986.) “A person from whose immediate presence property was taken by force or fear is not a robbery victim unless, additionally, he or she was in some sense in possession of the property.” (People v. Scott (2009) 45 Cal.4th 743, 749 (Scott).) The victim’s possession of property may be either actual or constructive, and it need not be exclusive. (People v. Neely (2009) 176 Cal.App.4th 787, 793; People v. Gilbeaux (2003) 111 Cal.App.4th 515, 520-521; People v. Miller (1977) 18 Cal.3d 873, 880-881, overruled on another ground in People v. Oates (2004) 32 Cal.4th 1048, 1067-1068.) When force or fear is used to take property jointly possessed by two or more persons, the defendant may be convicted of a separate robbery for each victim to whom force or fear was applied. (People v. Bonner (2000) 80 Cal.App.4th 759, 763-764; Marquez, supra, 78 Cal.App.4th at p. 1308.)
The theory of constructive possession has been expanded such that all employees working at a business have a possessory interest in the employer’s property during a robbery, “based upon their status as employees and without examining whether their particular duties involved access to or control over the property stolen.” (Scott, supra, 45 Cal.4th at p. 752; People v. Nguyen (2000) 24 Cal.4th 756, 762 (Nguyen); People v. Neely, supra, 176 Cal.App.4th 787, 793.) Thus, all employees in a store at the time of a robbery have constructive possession of the employer’s property and are separate victims of that robbery. (Scott, supra, at pp. 746, 752; Nguyen, supra, at pp. 764-765; People v. Neely, supra, at p. 793.)
Yassen was the manager at the Chevron store and in constructive possession of the store’s $160,000, which was kept in the back office. In addition, Yassen was in personal possession of $800 of his own money. The robbers assaulted Yassen, they took the cash from the back office from Yassen’s constructive possession, and they took Yassen’s personal money from his actual possession. While another employee was present that night, that employee was working in the parking lot, he was not subject to force or fear, and he was completely unaware of what was going on in the store. Thus, the information and instructions properly alleged Yassen as the victim of both robbery counts.
B. Multiple convictions arising from a single act
While it is undisputed that two takings occurred from Yassen, Johnson argues that he cannot be convicted of two separate counts of robbery since force or fear was only applied to one victim, who was in constructive possession of $160,000 and actual possession of $800. Johnson’s argument implicates the validity of multiple convictions under section 954. “In general, a person may be convicted of, although not punished for, more than one crime arising out of the same act or course of conduct.” (People v. Reed (2006) 38 Cal.4th 1224, 1226 (Reed).) “In California, a single act or course of conduct by a defendant can lead to convictions ‘of any number of the offenses charged.’ [Citations.]” (People v. Montoya (2004) 33 Cal.4th 1031, 1034 (Montoya), citing § 954, italics added in original.) While section 954 generally permits multiple convictions, “a judicially created exception to the general rule prohibits multiple convictions based on necessarily included offenses. [Citations.]” (Montoya, supra, at p. 1034; Reed, supra, at p. 1227.)
“Section 954 generally permits multiple conviction. Section 654 is its counterpart concerning punishment. It prohibits multiple punishment for the same ‘act or omission.’ When section 954 permits multiple conviction, but section 654 prohibits multiple punishment, the trial court must stay execution of sentence on the convictions for which multiple punishment is prohibited. [Citations.]” (Reed, supra, 38 Cal.4th at p. 1227.)
Notwithstanding the foregoing, there are a series of California cases which address the validity of multiple robbery and larceny convictions in a single course of conduct, in light of sections 954 and 654. In People v. Porter (1987) 194 Cal.App.3d 34 (Porter), the court peripherally addressed the validity of the defendant’s multiple robbery convictions in the course of a sentencing issue. In that case, the defendant and an accomplice accosted the victim in a parking lot. The defendant brandished a knife and demanded the victim’s wallet. The wallet did not contain much money, but the defendant found an automated teller machine (ATM) card and forced the victim to drive to his bank to withdraw money. When they reached the bank, the victim escaped from the car. The defendant was convicted of robbery and kidnapping for the purpose of robbery, and received concurrent sentences. (Id. at pp. 36-37.)
Porter rejected the defendant’s contention that the concurrent terms violated section 654 and held the defendant had multiple objectives that were not merely incidental to each other and were not part of an indivisible course of conduct.
“A reasonable inference from the record is that [defendant] and his companion initially planned only to rob the victim of the contents of his wallet, but thereafter came up with a new idea: kidnapping the victim to his bank to compel him to withdraw money from his account by means of what they thought was an automated teller card. [Citations.] In this case the record suggests that [defendant] was convicted of the robbery of the victim’s wallet and of kidnapping for the purpose of a different robbery involving the compelled withdrawal of funds from an automated teller, which was unsuccessful. This is not, therefore, a case of punishing [defendant] for kidnapping for the purpose of robbery and for committing ‘that very robbery.’ [Citation.] Nor is this a case of multiple punishment for taking several items during the course of a robbery. [Citation.] What began as an ordinary robbery turned into something new and qualitatively very different. No longer satisfied with simply taking the contents of the victim’s wallet, [defendant] decided to forcibly compel the victim to drive numerous city blocks to a bank where, only with the victim’s compelled assistance, could [defendant] achieve a greater reward. The trial court could reasonably treat this as a new and independent criminal objective, not merely incidental to the original objective and not a continuation of an indivisible course of conduct. In the unusual circumstances of this case, [defendant] could be punished both for the robbery he committed and the kidnapping for the purpose of a distinctly different type of robbery.” (Porter, supra, 194 Cal.App.3d at pp. 38-39, italics added.)
While Porter held section 654 did not bar the concurrent sentences, it also impliedly found the multiple convictions were appropriate because of the defendant’s separate criminal objections and intents.
In People v. Brito (1991) 232 Cal.App.3d 316 (Brito), the defendant posed as a hitchhiker and the victim offered him a ride. The defendant pointed a gun at the victim’s face and demanded money. The victim escaped from his driver’s-side door. The defendant shot him in the back and then drove away in the car. The defendant was convicted of robbery and attempted murder. (Id. at pp. 319-320.) The defendant argued there was insufficient evidence to support the robbery conviction because, even though he intended to use force or fear to take the victim’s money, the victim escaped and he did not use force or fear to take the victim’s car. (Id. at p. 325.) Brito rejected this argument and explained:
“When a defendant steals multiple items during the course of an indivisible transaction involving a single victim, he commits only one robbery or theft notwithstanding the number of items he steals. [Citations.] Further, a robbery continues until the defendant has escaped with the stolen goods and has reached a place of temporary safety. [Citation.] Thus, a defendant who applies force with the intent to steal, has committed one robbery notwithstanding the number of items he steals during an indivisible transaction, until he has reached a place of safety. It follows that if he conceives the intent to steal a different item after he has finished applying the force to his victim, he is guilty of robbery, not grand theft of that item.” (Id. at p. 326, fn. 8.)
Brito held the defendant committed a robbery of the vehicle even though he initially intended to rob the driver of his money:
“[Defendant] attempted to commit a robbery and during the course of events stole the vehicle. We know of no requirement that a robber's intent to steal must be directed towards items he has identified at the time he applies the force, as opposed to items he identifies during the same transaction. A defendant commits only one robbery no matter how many items he steals from a single victim pursuant to a single plan or intent. We see no rationale for limiting the scope of the robbery only to the specific items on which the defendant has focused at the time he initially applies the force. [Citation.]” (Brito, supra, 232 Cal.App.3d at pp. 325-326, first italics in original, second italics added, fn. omitted.)
Brito concluded that it was clear the defendant intended to rob the victim at the time he applied the force, and he committed a robbery of the vehicle when the victim escaped from the car because of his fear. (Id. at p. 326.)
In People v. Ortega (1998) 19 Cal.4th 686 (Ortega), the defendants approached a driver and passenger in a parked van, dragged the victims out of the van, and beat them. One defendant demanded the driver’s wallet. The driver pulled out his wallet, and his pager fell out of his pocket. There was no money in the wallet and the defendant threw it back, but he kept the driver’s pager. Another defendant beat the passenger and pulled off passenger’s sweater. The defendants drove away in the van. They were convicted of two counts of carjacking, based on taking the van from the possession of the driver and passenger; two counts of robbery, based on the forcible theft of the driver’s wallet and pager and the passenger’s sweater; and one count of grand theft of a vehicle. On appeal, defendants argued they could not be convicted of both carjacking and theft grand theft of a vehicle because they were necessarily included offenses. (Id. at pp. 690-692.)
Ortega held the defendants were properly convicted of carjacking and grand theft of a vehicle because they were not necessarily included offenses. (Ortega, supra, 19 Cal.4th at p. 693.) However, Ortega also held the defendants were improperly convicted of robbery of the vehicle and grand theft of the vehicle because they were necessarily included offenses and based on the same conduct. (Id. at pp. 694-695.)
“[T]he property taken in the robbery of [the driver], charged in count 3, included the van. ‘When a defendant steals multiple items during the course of an indivisible transaction involving a single victim, he commits only one robbery or theft notwithstanding the number of items he steals.’ [Citation.]” (Id. at p. 699, citing Brito, supra, 232 Cal.App.3d at p. 326, fn. 8, italics added.)
In People v. Marquez, supra, 78 Cal.App.4th 1302, the court addressed a situation very similar to this case. The defendant approached a restaurant cashier, showed her a handgun, and demanded money. The cashier gave him over $70 in tip money and about $600 from the cash register. The defendant was convicted of two counts of robbery, based on the employee’s tip money and the restaurant’s money from the cash drawer, and the court stayed punishment for robbery of the tips. (Id. at pp. 1304-1305, 1307.)
Marquez held there was substantial evidence to support only one of the two robbery convictions because the defendant was improperly convicted and sentenced for “committing two robberies when only one occurred.” (Marquez, supra, 78 Cal.App.4th at pp. 1308, italics omitted.)
“Since the central element of robbery is force or fear, a defendant may be convicted of a separate robbery for each victim of such force or fear, even if the victims are in joint possession of the property taken. [Citations.] Here, in contrast, the defendant committed only one larceny against a single victim involving one threatened application of force and occurring at the same place and time. In these circumstances the single larceny can only support a single count of robbery. [¶ ] To hold otherwise would violate the hoary single larceny doctrine which has long been followed in the majority of cases wherein the issue of single or multiple larcenies has arisen, or has been discussed. [Citation.] This doctrine provides that when property properly belonging to different persons is taken at the same time and place, only one larceny will lie for the taking. [Citation.] Of the jurisdictions that at one time held to the contrary, all but one have subsequently abandoned that position in favor of the single larceny doctrine. [Citation.] It is a doctrine implicitly recognized in analogous holdings in this state.” (Id. at pp. 1308-1309, italics added, fn. omitted.)
Marquez held the defendant’s robbery of the tips and cash register money “contrast[ed] strikingly with those [cases] that show a divisible transaction, ” such as the facts discussed in Porter, supra, 194 Cal.App.3d 34, “where the defendant was properly punished for both robbery and kidnapping for purposes of robbery when he initially planned to rob the victim of the contents of a wallet and then formulated a new plan of kidnapping for purposes of stealing the contents of an automated teller machine.” (Marquez, supra, 78 Cal.App.4th at p. 1308, fn. 5.) Marquez thus reversed the defendant’s robbery conviction that was based on the tip money.
The Attorney General acknowledges the holdings of Ortega and the other cases discussed above, but argues defendant was properly convicted of two counts of robbery based on two Oklahoma cases. In Rogers v. State (Okla. 1995) 890 P.2d 959 (Rogers), the defendant and an accomplice robbed a pizza delivery person of her own personal money and money from the delivery of pizzas. The defendant then forced the victim to withdraw money from an ATM, took her back to her apartment, and raped and killed her. The defendant was convicted of two counts of robbery, based on the pizza delivery money and the victim’s own personal cash from the ATM. He was also convicted of rape and murder. (Id. at pp. 965-966, 972-973.) The defendant argued the two robbery convictions subjected him to double jeopardy. (Id. at p. 973.) Rogers held the facts showed two separate robbery transactions. Rogers explained the commission of crimes “in rapid succession does not negate separate crimes as long as a separation does exist.” (Ibid., italics added.)
The Attorney General also relies on Grant v. State (Okla. 2009) 205 P.3d 1 (Grant), where the defendant approached a hotel clerk at the front desk, produced a gun, and forced the clerk to give him cash and checks from the hotel’s drawer. The defendant forced the same clerk to another room, where he took her personal belongings and an ATM card from her purse and then killed her. The defendant was convicted of two counts of robbery, based on taking the hotel’s property from the clerk and the clerk’s personal property. (Id. at p. 17.) Grant relied on Rogers and held the two robbery convictions did not subject the defendant to double jeopardy:
“[Defendant] points out that robbery is a crime against the person, not against property. However, one person can be robbed twice by the same perpetrator in a short span of time. We addressed this same argument on somewhat similar facts in Rogers... and found two distinct acts of robbery committed against the same victim in a relatively brief period of time. In the case before us, [defendant] admitted to taking the hotel's receipts from the front desk, then forcing [the victim] to another room, where he proceeded to take belongings from her purse and kill her. We find sufficient separation in time and space between the two takings to warrant separate convictions. [Citation.]” (Ibid.)
C. Analysis
We are compelled to find that Johnson was improperly convicted of two counts of robbery under the unique facts and circumstances of this case. Johnson and his accomplices entered the store, dragged Yassen to the back of the store and brutally beat him, but never demanded money from him. They took Yassen’s cash from his actual possession in his back pocket, and they took the store’s money, which Yassen constructively possessed in the office. Johnson and his accomplices ran out of the back of the store after taking both quantities of money. As explained in Ortega, Marquez, and Brito, Johnson could be convicted of only one count of robbery because he used force or fear to steal multiple items during the course of an indivisible transaction involving a single victim. (Ortega, supra, 18 Cal.4th at p. 699.)
While one of the robbers obviously used some type of force to remove Yassen’s money from his back pocket, Yassen never resisted, and he had no memory of anything happening after he was hit on the head with the baseball bat. It is settled that a robbery victim may be unconscious when the property is taken, as long as the defendant used force against the victim to take the property. (Jackson, supra, 128 Cal.App.4th at pp. 1330-1331.) However, whatever force was used to remove the cash from Yassen’s pocket was merely the force necessary to seize the money and did not constitute an added infliction of force to support a second robbery count. (Garcia, supra, 45 Cal.App.4th at p. 1246.)
The Attorney General argues both robbery convictions were appropriate but only cites to the Oklahoma cases of Rogers and Grant in support of that argument. The Attorney General further asserts Johnson and his accomplices had separate intents and objectives when they took the money from the store’s back office and then took Yassen’s personal cash. Indeed, Porter held multiple convictions and punishments were appropriate when there is evidence of “a new and independent criminal objective, not merely incidental to the original objective and not a continuation of an indivisible course of conduct.” (Porter, supra, 194 Cal.App.3d at p. 39.) In Porter, however, the defendant originally robbed the victim of her purse in a parking lot, then forced her to drive to a bank to withdraw money from an ATM.
In contrast to Porter, the two takings in this case occurred almost simultaneously and are more similar to the facts in Brito, where the defendant initially tried to rob the victim of his money, the victim fled, and then the defendant drove away in the victim’s car. As Brito explained. “a defendant who applies force with the intent to steal, has committed one robbery notwithstanding the number of items he steals during an indivisible transaction, until he has reached a place of safety. It follows that if he conceives the intent to steal a different item after he has finished applying the force to his victim, he is guilty of robbery, not grand theft of that item.” (Brito, supra, 232 Cal.App.3d at p. 326, fn. 8, italics added.)
Johnson and his accomplices committed violent and senseless crimes on a helpless victim. Based on the settled state of the law on robbery and larceny, however, he cannot be convicted of two counts of robbery based on the unique facts and circumstances of this case. Johnson’s conviction in count VI must be reversed and the sentence imposed therein stricken.
III. Substantial evidence to support gang enhancements
Johnson contends there is insufficient evidence to support the jury’s findings that he committed the substantive offenses for the benefit of, in association with, or at the direction of a criminal street gang (§ 186.22, subd. (b)). Johnson does not dispute the existence of the Fresno Bulldogs as a criminal street gang or that he was a member of that gang, but argues there is no evidence that he participated in the robbery to benefit the Fresno Bulldogs.
Section 186.22, subdivision (b)(1) provides for the imposition of an enhancement for “any person who is convicted of a felony committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members....” (Italics added.) The prosecution may rely on expert testimony to prove the required elements to support a gang enhancement. (People v. Hernandez (2004) 33 Cal.4th 1040, 1047-1048.)
An expert’s testimony is admissible concerning the existence, size, or composition of a gang; an individual’s membership in or association with a gang; the primary activities of a specific gang; the motivation for a particular crime; whether and how a crime was committed to benefit or promote a gang; rivalries between gangs; gang-related tattoos; and gang colors or attire. (People v. Killebrew (2002) 103 Cal.App.4th 644, 656-657.) The expert may also testify regarding certain activities of the gang, even though they may parallel the elements of the criminal street gang allegation. The expert may also testify about whether the defendant acted for the benefit of, at the direction of, or in association with a gang, even though it is an ultimate factual issue for the jury to decide, because these are matters far beyond the common experience of the jury. (People v. Valdez (1997) 58 Cal.App.4th 494, 508-509.)
However, a gang expert’s testimony alone is insufficient to find an offense was gang related. The record must provide some evidentiary support, other than merely the defendant's record of prior offenses and past gang activities or personal affiliations, for a finding that the crime was committed for the benefit of, at the direction of, or in association with a criminal street gang. (People v. Ochoa (2009) 179 Cal.App.4th 650, 657.) The substantial evidence standard of review applies to determine whether the jury’s true findings on gang allegations are supported by the evidence. (Id. at pp. 656-657.)
A series of cases have found substantial evidence to support gang enhancements in cases where gang members commit offenses with fellow gang members, since such conduct satisfies the statutory requirement that the offenses must be committed “for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members” (§ 186.22, subd. (b), italics added; cf. People v. Ramon (2009) 175 Cal.App.4th 843, 851-853 [expert’s testimony insufficient to establish crimes committed for “benefit” of gang].) For example, in People v. Morales (2003) 112 Cal.App.4th 1176, the defendant and two fellow gang members committed a robbery and other offenses, and the jury found the gang allegations true. The prosecution’s gang expert testified that, based on a hypothetical, the crimes were committed in association with a criminal street gang, because “they involved three gang members acting in association with each other. The gang provided ‘a ready-made manpower pool....’ That is, one gang member would choose to commit a crime in association with other gang members because he could count on their loyalty. They would ‘watch his back....’ In addition, the very presence of multiple gang members would be intimidating. The crime would benefit the individual gang members with notoriety among the gang, and the gang with notoriety among rival gang members and the general public.” (Id. at p. 1197.)
Morales rejected the defendant’s argument that there was insufficient evidence that he committed the offenses to benefit his gang, and instead noted the gang expert’s focus was on “a crime committed, not just by a gang member, but by several gang members, acting in association with each other. Also, [the expert] did not testify that such a crime necessarily would benefit the gang, merely that it would be committed either for the benefit of, or at the direction of, or in association with the gang.” (Id. at p. 1197, italics in original.)
“Defendant argues that reliance on evidence that one gang member committed a crime in association with other gang members is ‘circular....’ Not so. Arguably, such evidence alone would be insufficient, even when supported by expert opinion, to show that a crime was committed for the benefit of a gang. The crucial element, however, requires that the crime be committed (1) for the benefit of, (2) at the direction of, or (3) in association with a gang. Thus, the typical close case is one in which one gang member, acting alone, commits a crime. Admittedly, it is conceivable that several gang members could commit a crime together, yet be on a frolic and detour unrelated to the gang. Here, however, there was no evidence of this. Thus, the jury could reasonably infer the requisite association from the very fact that defendant committed the charged crimes in association with fellow gang members.
“If defendant is arguing that there was insufficient evidence of the specific intent element (as opposed to the benefit/direction/association element), we disagree. Again, specific intent to benefit the gang is not required. What is required is the ‘specific intent to promote, further, or assist in any criminal conduct by gang members....’ Here, there was evidence that defendant intended to commit robberies, that he intended to commit them in association with [his fellow gang members], and that he knew that [they] were members of his gang. Moreover, ... there was sufficient evidence that defendant intended to aid and abet the robberies [his fellow gang members] actually committed. It was fairly inferable that he intended to assist criminal conduct by his fellow gang members.” (Morales, supra, 112 Cal.App.4th at p. 1198.)
In People v. Romero (2006) 140 Cal.App.4th 15, the defendant drove fellow gang members to the site of a drive-by shooting, and the court found the gang enhancements were supported by substantial evidence because the defendant committed the offenses in association with fellow gang members. “There was ample evidence that [defendant] intended to commit a crime, that he intended to help [his accomplice] commit a crime, and that he knew [his accomplice] was a member of his gang. This evidence creates a reasonable inference that [defendant] possessed the specific intent to further [his accomplice’s] criminal conduct.” (Morales, supra, 112 Cal.App.4th at p. 1198.)
A similar result was reached in People v. Martinez (2008) 158 Cal.App.4th 1324, where the defendant admitted membership in a criminal street gang and committed robberies with another admitted member of that gang. The defendant argued there was insufficient evidence to support the gang enhancement because his accomplice was also his brother-in-law, and they committed the offenses for their own personal benefit. (Id. at p. 1133.) Martinez rejected the argument and noted the gang expert testified “this evidence showed defendant committed the robbery in association with the gang. The elements of the gang enhancement may be proven by expert testimony. [Citation.] Nor does it matter that defendant did not commit the crime on or live in gang turf or that [the gang expert] had never heard of defendant or [his accomplice]. Defendant did not even need to be an ‘“active”’ or ‘“current, active”’ gang member. [Citation.]” (Id. at p. 1332, italics added.) “Here defendant, an admitted gang member sporting gang tattoos, actually committed the robbery with a gang confederate. That he was not in his gang’s territory, by itself, does not necessarily overcome the other supporting evidence.” (Id. at p. 1333.)
In People v. Leon (2008) 161 Cal.App.4th 149 (Leon), the defendant and an accomplice were members of the same gang, and they stole a car and threatened an eyewitness. The defendant argued there was insufficient evidence that he committed the offenses for the benefit of his gang. Leon relied on Morales and Romero and rejected this argument because “a ‘specific intent to benefit the gang is not required.’ [Citation.]” (Id. at p. 163.) Leon held there was substantial evidence that the defendant committed the offenses in association with a fellow gang member. There was also evidence of the defendant’s specific intent because the defendant intended to commit the offenses, he intended to do so in association with his accomplice, and he knew his accomplice was a member of his gang. (Ibid.)
Johnson argues there is insufficient evidence that he committed offenses in this case to benefit the Fresno Bulldogs because the robbers did not display gang colors, show their gang tattoos, or shout gang slogans. They committed the offenses with Michael, who was not a gang member, and they gave Michael the largest share of the robbery proceeds. As explained in Morales, Martinez, and Leon, however, there is substantial evidence to support the gang enhancements because defendant committed the offenses “in association with” fellow gang members from the Fresno Bulldogs. Although Michael provided the critical information about the location of the cash, Francisco and his fellow Bulldogs—Benjamin, Ricky, and Johnson—handled the planning and execution of the crime. While Michael participated in the robbery, he took orders from Benjamin, a member of the Fresno Bulldogs, to enter the store, adjust his mask, and go to the back office. While Michael received a larger share of the funds, Johnson and his fellow Fresno Bulldogs each received $20,000, which provided them with living expenses.
Johnson relies on Garcia v. Carey (9th Cir. 2005) 395 F.3d 1099 (Garcia) and argues there is insufficient evidence to show how the Fresno Bulldogs were furthered by the crimes in this case, or that he had the specific intent to promote, further, or assist in other criminal activities by members of his gang. In Garcia, the Ninth Circuit held that there had to be evidence the defendant committed the crime with the specific intent to facilitate other criminal activity by the gang in order to prove the gang allegation. (Id. at pp. 1103-1104; see also Briceno v. Scribner (9th Cir. 2009) 555 F.3d 1069, 1079-1080.) As explained in People v. Vasquez (2009) 178 Cal.App.4th 347, however, the Ninth Circuit’s attempt “to write additional requirements” into section 186.22, subdivision (b) has been rejected by California courts, and “[t]here is no statutory requirement that this ‘criminal conduct by gang members' be distinct from the charged offense, or that the evidence establish specific crimes the defendant intended to assist his fellow gang members in committing.” (Vasquez, supra, 178 Cal.App.4th at p. 354; see also People v. Hill (2006) 142 Cal.App.4th 770, 774; People v. Romero, supra, 140 Cal.App.4th at p. 20; Morales, supra, 112 Cal.App.4th at p. 1198.) “By its plain language, the statute requires a showing of specific intent to promote, further, or assist in ‘any criminal conduct by gang members, ’ rather than other criminal conduct. [Citation.]” (People v. Romero, supra, 140 Cal.App.4th at p. 19.)
IV. Sentencing issues.
Johnson raises a series of sentencing issues as to the substantive offenses and enhancements, which requires a brief review of the sentencing hearing before we address his contentions.
A. Sentencing hearing.
At the sentencing hearing, the court imposed a life term with the possibility of parole for count I, kidnapping to commit robbery, with a minimum service of 15 years before Johnson was eligible for parole pursuant to the gang enhancement, plus 10 years for the firearm enhancement and one year for the financial loss enhancement. As to count VI, the court imposed the midterm of three years, with consecutive terms of 10 years for the gang enhancement and 10 years for the firearm enhancement, to be served consecutively to count I. As to count II, the court imposed the midterm of three years, plus consecutive terms of 10 years for the gang enhancement and 10 years for the firearm enhancement, and stayed the sentence pursuant to section 654.
As to count V, the court imposed the midterm of three years, with consecutive terms of three years for the gang enhancement, 10 years for the firearm enhancement and one year for the financial loss enhancement, to run concurrent to count VI. As to count III, the court imposed the midterm of three years with consecutive terms of five years, four years, and one year. The court did not impose a term for count IV.
B. Section 654 and the sentence for count VI
Johnson acknowledges the court stayed the sentence for count II, robbery of Yassen as the store clerk, but contends the court also should have stayed the sentence imposed for count VI, robbery of Yassen’s personal property, because that robbery was part of the same intent and objective of count I, kidnapping of Yassen for the purposes of robbery. We have already concluded that count VI should be reversed and need not reach this issue.
C. Section 654 and the sentences for counts III and V
Johnson contends the court should have stayed the concurrent sentences imposed for count III, assault with a firearm, and count V, conspiracy to commit robbery, because the two offenses were committed with the same intent and objective as count I, kidnapping to commit robbery. The Attorney General concedes the court should have stayed the term imposed for count V, conspiracy to commit robbery, but asserts the concurrent sentence for count III, assault with a firearm, was appropriate.
“‘[S]ection 654 prohibits multiple punishment for an indivisible course of conduct....’ [Citation.] But multiple crimes are not one transaction where the defendant had a chance to reflect between offenses and each offense created a new risk of harm. [Citations.] ‘Separate sentencing is permitted for offenses that are divisible in time....’ [Citation.]” (People v. Felix (2001) 92 Cal.App.4th 905, 915.) As explained in section I, Johnson and his accomplices burst into the store knowing exactly where the money was kept. They never asked Yassen to open the register or show them where the cash was kept. They ordered him into the back of the store, and he immediately complied with their orders and never resisted. Yassen was dragged to the back of the store by two of the assailants. They hit Yassen on the head with a baseball bat, and they apparently continued to beat him after he passed out, based on the other injuries he suffered to his body. “This act constituted an example of gratuitous violence against a helpless and unresisting victim which has traditionally been viewed as not ‘incidental’ to robbery for purposes of... section 654. [Citations.]” (People v. Nguyen (1988) 204 Cal.App.3d 181, 190-191.)
DISPOSITION
Johnson’s conviction in count VI for robbery of Yassen’s personal property is reversed. The sentence imposed for count V, conspiracy, is stayed pursuant to Penal Code section 654. His sentence is vacated and the matter is remanded for resentencing. In all other respects, the judgment is affirmed.
WE CONCUR: Cornell, Acting P.J., Dawson, J.