Opinion
2d Crim. No. B227799
11-01-2011
THE PEOPLE, Plaintiff and Respondent, v. THOMAS C. KINCADE et al., Defendants and Appellants.
Richard E. Holly, under appointment by the Court of Appeal, for Defendant and Appellant Thomas C. Kincade. Madeline McDowell, under appointment by the Court of Appeal; Tino Ortega Simmons, in pro. per., for Defendant and Appellant Tino Ortega Simmons. Kamala D. Harris, Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Linda C. Johnson, Supervising Deputy Attorney General, Michael Katz, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. No. F419316)
(San Luis Obispo County)
Thomas C. Kincade and Tino Ortega Simmons appeal the judgment entered after a jury convicted them of kidnapping for robbery (Pen. Code, § 209, subd. (b)), two counts of second degree robbery (§ 211), and eight counts of false imprisonment by violence (§ 236). Simmons was also convicted of being a felon in possession of a firearm (§ 12021, subd. (a)), and Kincade was found to have personally used a firearm in committing the kidnapping and robberies (§ 12022.53, subd. (a)). In a bifurcated proceeding, the trial court found that Kincade had a prior conviction that qualified as both a strike and a serious felony (§§ 667, subds. (a) - (i), 1170.12, subds. (a) - (d)), and that Simmons had two such prior convictions. Kincade was sentenced to 55 years and four months to life in state prison. Simmons received a total state prison term of 74 years to life. They contend the evidence is insufficient to support their kidnapping for robbery convictions. They also claim their convictions must be reversed for lack of jurisdiction. We affirm.
All further undesignated statutory references are to the Penal Code.
Simmons has filed a supplemental brief in propria persona. Because he is represented by counsel, we need not consider briefs filed in propria persona. (People v. Clark (1992) 3 Cal.4th 41, 173.) We have nevertheless reviewed the supplemental brief and conclude that the claims raised therein lack merit.
STATEMENT OF FACTS
On June 24, 2008, appellants committed an armed robbery at a bank in Paso Robles. A DVD of the incident, which was captured on the bank's surveillance video cameras, was played for the jury at trial. Bank employee Christi Schaffer testified that she was talking to customer Mattona Michelangelo when two men subsequently identified as appellants walked into the bank holding guns and wearing ski masks and motorcycle helmets. Appellants announced that they were committing a robbery, and ordered everyone to lie down on the floor.
One of the robbers asked who was in charge, and Schaffer replied that she was. The robber told Schaffer, "We need to go to the vault." Schaffer retrieved her keys and accompanied the robber to the vault. The robber had a backpack and ordered Schaffer to fill it with the money in the vault. While the other robber was guarding the front door, teller Kathy Schmitz complied with their order to empty the cash drawers. Schmitz placed the cash in an envelope, but the robbers never took it from her.
Barbara Taylor-Kneier was one of several customers who entered the bank while the robbery was in progress. Shortly after she entered, the robber near the front door displayed a gun and told her to join the other employees and customers who were already lying on the ground. The robber took Taylor-Kneier's purse and several checks that she was holding in her hand.
Patty Philippian also arrived at the bank after the robbery was already in progress. When Philippian was approximately five to ten feet from the front door, she saw several people lying on the floor as a man approached the door holding a gun. Philippian realized that a robbery was occurring and started backing away toward her car. As she did so, the robber with the gun came out and ordered her inside. Philippian refused until another man in a nearby van opened the van's door and told her to "get in the bank before I have to get out of the car." Philippian, who feared that she would be shot if she did not comply, approached the front door. The man at the door grabbed her by the arm, pulled her inside, and ordered her to lie down on the floor. Philippian told the man that she did not want to lie down because she had tumors in her back, but the man insisted and she complied. Shortly thereafter, the robbers left the bank with the backpack full of money. Schaffer immediately locked the doors while other employees sounded the alarm and called 911. An accounting subsequently revealed that the robbers had stolen $119,500 from the bank.
Bank manager Dee Anthony was on her lunch break when the robbery occurred. Anthony was sitting in her car in the parking lot when she saw a tan oxidized minivan back out of a parking space with the van's slider door open. She then saw a young African-American person close the door before the van drove off.
Shortly thereafter, an Atascadero police officer stopped a tan Ford Aerostar minivan. Kincade was the van's driver and sole occupant. Anthony was transported to the scene and stated she was "100 percent sure" that the van was the one she had seen in the bank's parking lot. The van was also depicted in the bank's surveillance video.
Further investigation led the police to Simmons, who was stopped that same day while riding a motorcycle in Bakersfield. During a search of Simmons's residence that evening, the police found a backpack containing $119,500 in cash, two motorcycle helmets, two bandannas, and a .45-caliber semiautomatic handgun. Kincade's DNA was recovered from one of the bandannas, while DNA found on the other bandanna matched Simmons's profile.
DISCUSSION
I.
Sufficiency of the Evidence
Appellants contend the evidence is insufficient to support their convictions for committing kidnapping for the purpose of robbery, as contemplated in subdivision (b) of section 209. They claim the prosecution failed to prove that the victim of the crime, Patty Philippian, was moved a substantial distance because the movement was merely incidental to the robbery of which they were also convicted. We disagree.
When assessing a challenge to the sufficiency of the evidence, "we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence-that is, evidence that is reasonable, credible, and of solid value-from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.]" (People v. Lindberg (2008) 45 Cal.4th 1, 27.) We presume all facts in support of the judgment that the jury reasonably could deduce from the evidence, and do not reweigh the evidence, or evaluate the credibility of witnesses. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) A judgment will be reversed only if there is no substantial evidence to support the verdict under any hypothesis. (People v. Bolin (1998) 18 Cal.4th 297, 331.)
"Penal Code section 209 subdivision (b)(1) provides, 'Any person who kidnaps or carries away any individual to commit robbery . . . shall be punished by imprisonment in the state prison for life with the possibility of parole.' A defendant may be convicted of kidnapping for robbery when the kidnapping and the intended robbery pertain to different victims. [Citation.] Thus, a defendant commits a kidnapping for robbery (or 'aggravated kidnapping') if the defendant kidnaps one individual in order to prevent that person from spreading an alarm about a simultaneous robbery of a second person. [Citation.]" (People v. James (2007) 148 Cal.App.4th 446, 452-453 (James).) "The asportation element of kidnapping for robbery is further defined in subdivision (b)(2) of Penal Code section 209. That subdivision provides, 'This subdivision shall only apply if the movement of the victim is beyond that merely incidental to the commission of, and increases the risk of harm to the victim over and above that necessarily present in, the intended underlying offense.'" (Id. at p. 453.) "The two elements of the test are related; 'whether the victim's forced movement was merely incidental to the [underlying offense] is necessarily connected to whether it substantially increased the risk to the victim.' [Citation.] '[E]ach case must be considered in the context of the totality of its circumstances.' [Citation.]" (Id. at p. 454.) The determination whether the movement substantially increased the risk of harm to the victim above and beyond that inherent in the underlying crime""" . . . 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.]" [Citation.]'" (Ibid.)
The jury was instructed pursuant to CALCRIM No. 1203 that in order to find appellants guilty of committing kidnapping for robbery, "the People must prove that: [¶] 1. The defendant[s] intended to commit robbery; [¶] 2. Acting with that intent, the defendant[s] took, held, or detained another person by using force or by instilling a reasonable fear; [¶] 3. Using that force or fear, the defendant moved the other person [or made the other person move] a substantial distance; [¶] 4. The other person was moved or made to move a distance beyond that merely incidental to the commission of a robbery; [¶] 5. When that movement began, the defendant already intended to commit robbery; [¶] [AND] [¶] 6. The other person did not consent to the movement. [¶] As used here, substantial distance means more than a slight or trivial distance. The movement must have substantially 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."
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Substantial evidence supports the jury's findings that the movement of Philippian was not merely incidental to the robbery and substantially increased the risk that she would suffer harm. James is particularly instructive. In that case, the defendant and several associates robbed the Bingo Club one morning before the club was open for business. The robbers gained entry to the business by approaching a maintenance worker (Gonzalez) as he was hosing down the parking lot. At gunpoint, Gonzalez was ordered to knock on the door and identify himself. When employees inside the club opened the door, the robbers entered the building and ordered the employees and Gonzalez to lie on the floor while the managers led the robbers to the safes. The robbers stole more than $60,000 from the safes, and also robbed several of the employees by reaching into their pockets and removing money from their wallets. The defendant was subsequently convicted of the kidnapping for robbery of Gonzalez, and five counts of robbery involving victims other than Gonzalez. (James, supra, 148 Cal.App.4th at pp. 449-451.)
On appeal, the defendant contended that the evidence was insufficient to support his conviction of kidnapping for robbery because his movement of Gonzalez was merely incidental to the robbery of the Bingo Club, and the movement did not increase the risk of harm to Gonzalez. In affirming, the Court of Appeal reasoned among other things that "there is no minimum distance that a victim must be moved in order to establish that the movement was not merely incidental to the underlying crime; what matters is the scope and nature of the movement. It is significant here that the underlying crime was not the robbery of Gonzalez, but the robbery of [other employees of] the Bingo Club. In other words, defendant did not seek to rob Gonzalez of property kept inside the Bingo Club and simply moved him from the outside of the Bingo Club to the location of the property inside. Instead, defendant and his companions intended to rob the manager of the Bingo Club, and moved Gonzalez from the outside of the Bingo Club to the door, in order to gain entry. . . . While 'th[e] robbery of a business owner or employee includes the risk of movement of the victim to the location of the valuables owned by the business that are held on the business premises,' [citation], the robbery of a business employee does not include the risk that other individuals will be moved, at gunpoint, from the relative safety of the outdoors, into the business premises for the duration of the robbery." (James, supra, 148 Cal.App.4th at p. 457.) The court further reasoned that the kidnapping victim "was brought from the outside of the Bingo Club to the enclosed inside, reducing the prospects of detection or escape. By being held inside the Bingo Club during the robbery, there was an increased risk that [he] would have been robbed . . . . Moreover, 'a kidnap victim's peril ordinarily grows with the passage of time and distance.' . . . [¶] . . . This is not a case where [the kidnapping victim] was himself robbed, and defendant is charged with kidnapping [him] due to some trivial, criminologically insignificant movements of [the victim] that were incidental to that robbery. Instead, the underlying offense was the robbery of the managers of the Bingo Club." (Id. at pp. 457-458, fn. omitted.)
Here, Philippian was moved from outside the bank to inside the bank not for the purpose of robbing her, but rather to facilitate their robbery of the bank, which was in progress. Moreover, in moving Philippian from the relative safety of the outdoors appellants substantially increased the risk that she would be harmed. Among other things, it increased the probability that she would escape or alert others of the robbery. The movement also increased the risk that Philippian would herself be robbed or assaulted. (James, supra, 148 Cal.App.4th at pp. 457-458; People v. Rayford (1994) 9 Cal.4th 1, 13-14 [moving victim from her yard into her home decreases the likelihood of detection because she can no longer be seen or heard by others].) Appellants' claim that the movement actually decreased the risk of harm to the victim essentially ignores the standard of review, which requires us to view the evidence in the light most favorable to the judgment. (People v. Lindberg, supra, 45 Cal.4th at p. 27.)
Appellants do not cite James in their opening briefs. Three of the cases they cite in support of their position were expressly distinguished in James. (James, supra, 148 Cal.App.4th at p. 458, fn. 10; In re Crumpton (1973) 9 Cal.3d 463, 466 [gas station attendant moved from "service island" and forced to lie down behind truck parked on station's premises]; People v. Williams (1970) 2 Cal.3d 894, 899-903 [gas station attendant moved a short distance on station's premises]; People v. Killean (1971) 4 Cal.3d 423, 424 [residential robbery victim forced "to move across the threshold and through various rooms in search of valuables"].) Appellant's reliance on People v. Washington (2005) 127 Cal.App.4th 290, is similarly unavailing. The decision in that case was premised on the fact that the movement at issue "occurred entirely within the premises of the bank." (Id. at p. 299.) Appellants' remaining authority is inapposite for the same reason. (People v. Daniels (1969) 71 Cal.2d 1119, 1126 [victims moved from among rooms within their homes]; People v. Hoard (2002) 103 Cal.App.4th 599, 607 [jewelry store employees forced to move from the store to an office at the back of the store]; People v. Smith (1971) 4 Cal.3d 426, 427 [hotel night clerk forced to move from office to second-floor room, and bellboy forced to move across the same room]; People v. Adams (1971) 4 Cal.3d 429, 430 [liquor store employees caused to move from store to rear storage area; service station employee forced to lie on the floor in lube room].)
In their reply briefs, appellants attempt to distinguish James from the instant case on the ground that "kidnapping the maintenance worker was the means of gaining entry into the Bingo Club in order to be able to commit robbery." This distinction is not helpful. On the contrary, the fact that Philippian's movement was less necessary to the robbery than the movement at issue in James does not detract from our conclusion, but rather bolsters it. In James, the nature of the movement at issue led the court to note "that the movement of a robbery victim facilitates a robbery does not imply that the movement was merely incidental to it." (James, supra, 148 Cal.App.4th at p. 454.) The court subsequently explained that "[a] movement necessary to a robbery may or may not be merely incidental to it," while "a movement unnecessary to a robbery is not incidental to it at all." (Id. at p. 455 & fn. 6.)
Appellants make a point of noting that the robbery was completed less than a minute after Philippian was forced inside the bank. The record further shows that Philippian was grabbed by the arm, pulled inside the bank, and forced to lie on the ground notwithstanding her plea that she doing so would be painful due to tumors on her back. Because these movements were unnecessary to the robbery and did not facilitate it in any meaningful fashion, they were not incidental to the crime. Accordingly, the evidence was sufficient to support the finding that appellants were guilty of committing kidnapping for robbery in violation of section 209, subdivision (b)(1). (See People v. Corcoran (2006) 143 Cal.App.4th 272, 279-280 [kidnapping for robbery conviction upheld where "the movement of the victims had nothing to do with facilitating taking cash from the [establishment]" and movement of victims "was clearly 'excess and gratuitous'"]; compare People v. Washington, supra, 127 Cal.App.4th at p. 299 [insufficient evidence of asportation where "there was no excess or gratuitous movement of the victims over and above that necessary to obtain the money in the vault"].)
II.
Jurisdiction
Appellants argue that the judgments against them are void because the federal courts have exclusive jurisdiction over cases involving bank robberies. For support, they offer two cases without pinpoint citations. (Lewis v. United States (1998) 523 U.S. 155; Hagans v. Lavine (1974) 415 U.S. 528.) Neither case supports the proposition for which it is offered. The claim is thus waived. (People v. Garcia (2008) 161 Cal.App.4th 475, 486, overruled on other grounds in People v. Picklesimer (2010) 48 Cal.4th 330, 338, fn. 4.) Simmons's claim that the case falls within the exclusive jurisdiction of the Uniform Commercial Code, for which he offers no argument or authority, is also waived. In any event, the claim is based on the notion that the victim in this case is an institution. In fact, appellants terrorized and took property from the individuals who possessed it, a fact that continues to escape Simmons and for which he quite properly will be held accountable. (People v. Smith (2009) 177 Cal.App.4th 1478, 1490-1491.)
The judgments are affirmed.
NOT TO BE PUBLISHED.
PERREN, J.
We concur:
GILBERT, P.J.
YEGAN, J.
Barry T. LaBarbera, Judge
Superior Court County of San Luis Obispo
Richard E. Holly, under appointment by the Court of Appeal, for Defendant and Appellant Thomas C. Kincade.
Madeline McDowell, under appointment by the Court of Appeal; Tino Ortega Simmons, in pro. per., for Defendant and Appellant Tino Ortega Simmons.
Kamala D. Harris, Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Linda C. Johnson, Supervising Deputy Attorney General, Michael Katz, Deputy Attorney General, for Plaintiff and Respondent.