Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. CH42385
SIMONS, J.
Defendant Larry Latimore, Jr. (appellant), appeals his conviction by jury trial of kidnapping to commit robbery (Pen. Code, § 209, subd. (b)(1)) (count 1), second degree robbery (§ 211) (count 2), and assault with a semi-automatic firearm (§ 245, subd. (b)) (count 3). A firearm use enhancement (§ 12022.5, subd. (a)(1)) was found true as to all counts, firearm enhancements (§ 12022.53, subds. (b) & (c)) were found true as to count 2, and a section 12022.53, subdivision (b) enhancement was found true as to count 1. He contends the court erroneously instructed the jury on the elements of kidnapping for robbery, the CALCRIM No. 220 instruction given was erroneous, and the kidnapping for robbery conviction was not supported by substantial evidence. We reject the contentions and affirm.
All undesignated section references are to the Penal Code.
Appellant was sentenced to life plus 10 years on count 1, with concurrent sentences of 22 years on count 2, and 10 years on count 3.
BACKGROUND
On the morning of November 25, 2006, Edward Harris took his pickup truck to the 1 Stop Auto Service (smog shop) for a smog check. Norak Van, an employee at the smog shop, told Harris how long he (Harris) would have to wait, and Harris filled out some paperwork. At some point people came into the smog shop selling gift items. Harris purchased some “Raiders-type” gloves and two “Looney Tune balloon gift sets” for $10 or $15. Harris put the gloves in his pocket and the balloon sets in his truck. He then walked outside to the sidewalk area and read an advertisement while waiting for his truck to be finished.
Harris then walked to the end of the street and around to the back of a closed building where he urinated. As he started walking back toward the sidewalk, he noticed two men walking toward the BART (Bay Area Rapid Transit) station. Harris identified one of the men as appellant. The two men “suddenly B-lined across to the direction [Harris] was going.” Appellant’s confederate, the taller of the two men, asked Harris for a cigarette; Harris gave him one. The taller man took the cigarette and appeared to walk toward the BART station. Appellant then approached Harris and asked for a cigarette. After Harris gave appellant a cigarette, appellant mumbled something and Harris said, “What?” Appellant stared at Harris and said, “Give me all your shit now. I’m not kiddin.’ ” Harris responded, “You’ve got to be kidding me.” At that point appellant pulled out a gun, pointed it at Harris, said, “You think I’m kidding?” or “You think I’m joking?” and fired the gun at the ground. Harris said the gun looked like a.22 target pistol. Harris immediately threw everything in his pockets onto the ground, including his keys, the gloves and money.
Harris then looked around to see if anyone noticed the gun had been fired. When he looked back he saw appellant standing up from a kneeling position in the area where Harris had dropped the gloves, money and keys. The gloves were still on the ground, but the money was not. Appellant then told Harris that Harris “had to have more stuff than that, ” and directed him to walk back behind the building. Because Harris did not want to be shot he, instead, tried to walk toward “Alvarado Niles.” Appellant told Harris he was going to “pop” Harris, which Harris understood to mean shoot him. Appellant’s confederate stayed away from Harris and appellant, appearing to act as a lookout.
Appellant insisted that Harris must have “more money or credit cards or something.” Harris said the only thing he had was at his truck. Appellant told Harris they were going to go to Harris’s truck and Harris was going to take appellant to an ATM (automated teller machine) or “go buy things.” At that point, appellant’s confederate was closer, about 15 or 20 feet away. Appellant directed Harris to walk the 200 yards toward the smog shop; Harris complied out of fear of being shot. Harris wanted to get to where there were other people, not necessarily to the smog shop. At that point he did not voluntarily go to the smog shop. Appellant walked five feet behind Harris with the gun trained on him. Appellant’s confederate walked in the same direction, a little farther away. The confederate did not appear to be armed and appellant seemed to be “in charge.”
Harris, appellant and appellant’s confederate entered the smog shop and went to Harris’s truck. Harris told Van not to remove his truck from the shop. Harris leaned into the truck, grabbed the “Looney Tunes thing” and gave it to appellant. Van heard Harris say to appellant, “This is all I got.” Van told the three men they could not be in the repair area, so Harris and appellant walked into the smog shop’s waiting room. Appellant’s confederate stayed out in front of the smog shop. Van told Harris his truck would be finished in a few minutes. Harris told the technician not to close the hood on his truck and leave it where it was. Harris was afraid that if the truck got outside, appellant and his confederate would get into the truck and Harris “wouldn’t have any choice.”
Harris walked over to his truck, reached in and turned on the motor, jumped into the truck and put it in gear. He asked appellant if he was going to get in, wanting appellant to walk around to the other side of the truck while Harris drove out of the smog shop. Appellant turned and called for his confederate; Harris “gunned it” and drove out of the smog shop. When Harris looked back, he saw appellant and his confederate running toward Harris, so Harris turned right onto Alvarado. Harris called 911 and described appellant and his confederate. Harris agreed to meet police at the smog shop since he had not paid his bill. Meanwhile, after Harris sped out of the smog shop without paying, Van drove around for 10 or 15 minutes unsuccessfully trying to find Harris and then called 911.
Union City Police Officers Mace and Graetz responded to an armed robbery dispatch. They spotted two people matching the description of the suspects near the Skylark Drive apartments. As the officers approached, the suspects turned their backs. Mace noticed a large bulge in the pocket of one of the suspects. Mace got out of his patrol car and that suspect took off running; Mace unsuccessfully gave chase. Graetz detained and handcuffed the other suspect, identified at trial as appellant. Appellant was unarmed, but a.22-caliber bullet was found on him at the time of his arrest. Appellant was brought to an “in-field lineup” where Harris identified him as “the guy that shot at me.” Appellant was later transported to the police station by Officer Gannam.
Subsequently, a resident of the Skylard Drive apartments reported finding a handgun in a carport. Mace and Graetz recovered the gun, which had six bullets in the magazine and one in the chamber. Graetz described the gun as a.22-caliber semiautomatic. The letter “C” was embossed at the bottom of each shell removed from the gun. The recovered shells matched the bullet found on appellant. No shell casing was recovered from the robbery scene. A cell phone recovered from appellant contained a video which depicted appellant holding a gun like that recovered from the carport.
DISCUSSION
I. The Kidnapping for Robbery Instruction Was Not Erroneous
Appellant contends the court erroneously instructed the jury on kidnapping for robbery.
On appeal, jury instructions are reviewed de novo. (People v. Posey (2004) 32 Cal.4th 193, 218.) “ ‘Whether a jury has been correctly instructed is not to be determined from a consideration of parts of an instruction or from particular instructions, but from the entire charge of the court.’ [Citation.] Therefore, the fact that the necessary elements of a jury charge are to be found in two instructions rather than in one instruction does not, in itself, make the charge prejudicial.” (People v. Rhodes (1971) 21 Cal.App.3d 10, 20.) “The absence of an essential element in one instruction may be supplied by another or cured in light of the instructions as a whole. [Citations.]” (People v. Galloway (1979) 100 Cal.App.3d 551, 567-568 (Galloway).)
Appellant’s failure to object to the instruction given does not waive the issue on appeal because instructional error as to elements of an offense cannot be waived by defense counsel’s failure to object. (People v. Hudson (2006) 38 Cal.4th 1002, 1011-1012.)
The court instructed the jury with CALCRIM No. 1203:
“The defendant is charged in [c]ount 1 with kidnapping for the purpose of robbery in violation of... section 209[, subdivision] (b).
“To prove that the defendant is guilty of this crime, the People must prove that:
“1. The defendant intended to commit robbery;
“2. Acting with that intent, the defendant 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;
“6. The other person did not consent to the movement;
“AND
“7. The defendant did not actually and reasonably believe that the other person consented 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.
“In order to consent, a person must act freely and voluntarily and know the nature of the act.
“To be guilty of kidnapping for the purpose of robbery, the defendant does not actually have to commit the robbery.
“To decide whether the defendant intended to commit robbery, please refer to the separate instructions that I will give you on that crime.
“The defendant is not guilty of kidnapping if he reasonably and actually believed that the other person consented to the movement. The People have the burden of proving beyond a reasonable doubt that the defendant did not reasonably and actually believe that the other person consented to the movement. If the People have not met this burden, you must find the defendant not guilty of this crime.
“The defendant is not guilty of kidnapping if the other person consented to go with the defendant. The other person consented if he (1) freely and voluntarily agreed to go with or be moved by the defendant, (2) was aware of the movement, and (3) had sufficient mental capacity to choose to go with the defendant. The People have the burden of proving beyond a reasonable doubt that the other person did not consent to go with the defendant. If the People have not met this burden, you must find the defendant not guilty of this crime.”
Appellant contends the CALCRIM No. 1203 instruction erroneously fails to describe the “risk of harm term” as an essential element which the People must prove beyond a reasonable doubt. Instead, he asserts that the risk of harm element is described “as a factor to be considered among all the circumstances relating to the sufficiency of the movement.” Appellant further asserts that the CALCRIM No. 1203 instruction omits the essential risk of harm element from its “proof list” and instead, “relegates it to a separate paragraph lacking the key phrase” “the People must prove....” He argues that by presenting increased risk of harm merely as one of “the circumstance[s] relating to the movement, ” the jury was permitted to convict him of aggravated kidnapping without finding that the People proved the increased risk of harm element beyond a reasonable doubt. Appellant further argues that the instructional error was not cured with any of the instructions given, including CALCRIM No. 220, or by any explanation by the prosecution during argument.
A person is guilty of simple kidnapping if he or she “forcibly, or by any other means of instilling fear, steals or takes, or holds, detains, or arrests any person in this state, and carries the person into another country, state, or county, or into another part of the same county....” (§ 207, subd. (a).)
The jury was instructed with CALCRIM No. 1215 regarding the lesser included offense of simple kidnapping.
The Legislature has specified greater punishment for aggravated kidnapping, where the accused “kidnaps or carries away any individual to commit robbery....” (§ 209, subd. (b)(1)); People v. Curry (2007) 158 Cal.App.4th 766, 779 (Curry).) Section 209, subdivision (b) provides, in relevant part: “(1) 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. [¶] (2) This subdivision shall only apply if the movement of the victim is beyond that merely incidental to the commission of, and increases the risk of harm to the victim over and above that necessarily present in the intended underlying offense.”
“[F]or aggravated kidnapping, the victim must be forced to move a substantial distance, the movement cannot be merely incidental to the target crime, and the movement must substantially increase the risk of harm to the victim.” (People v. Dominguez (2006) 39 Cal.4th 1141, 1153 (Dominguez ).) “The essence of aggravated kidnapping is the increase in the risk of harm to the victim caused by the forced movement. [Citation.]” (Id. at p. 1152.) In assessing the increased risk of harm, a jury should consider “whether the movement decreases the likelihood of detection, increases the danger inherent in a victim’s foreseeable attempts to escape, or enhances the attacker’s opportunity to commit additional crimes.” (Ibid.)
The CALCRIM No. 1203 instruction informed the jury that appellant could not be convicted of kidnapping for the purpose of robbery unless the People proved that Harris was moved or made to move a substantial distance. The instruction defined “substantial distance” as movement that “must have substantially increased the risk of physical or psychological harm to the person beyond that necessarily present in the robbery.” The instruction then directed the jury to consider “all the circumstances relating to the movement” in deciding whether the movement was sufficient. Since the instruction specified that the People were required to prove the movement was a “substantial distance, ” the jury necessarily understood that the portion of the instruction defining substantial distance was also subject to proof by the People. Moreover, the CALCRIM No. 220 instruction on reasonable doubt instructed the jury that “[w]henever I tell you the People must prove something, I mean they must prove it beyond a reasonable doubt.” Because the jury was instructed that proof by the People had to be proof beyond a reasonable doubt, it necessarily understood the CALCRIM No. 1203 instruction as requiring proof beyond a reasonable doubt of the “substantial distance” of the movement, i.e. movement that “must have substantially increased the risk of physical or psychological harm to the person.” No instructional error is shown.
II. The Court Properly Instructed the Jury With CALCRIM No. 220
Next, appellant contends the CALCRIM No. 220 instruction given by the trial court failed to inform the jury that the People were required to prove him guilty of every element of the charged offenses beyond a reasonable doubt. In particular, he argues that the instruction omits the “ ‘every fact’ component of the Winship standard” (In re Winship (1970) 397 U.S. 358 (Winship)).
Pursuant to CALCRIM No. 220, the court instructed:
“The fact that a criminal charge has been filed against the defendant is not evidence that the charge is true. You must not be biased against the defendant just because he has been arrested, charged with a crime, or brought to trial. [¶] A defendant in a criminal case is presumed to be innocent. This presumption requires that the People prove a defendant guilty beyond a reasonable doubt. Whenever I tell you the People must prove something, I mean they must prove it beyond a reasonable doubt. [¶] Proof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the charge is true. The evidence need not eliminate all possible doubt because everything in life is open to some possible or imaginary doubt. [¶] In deciding whether the People have proved their case beyond a reasonable doubt, you must impartially compare and consider all the evidence that was received throughout the entire trial. Unless the evidence proves the defendant guilty beyond a reasonable doubt, he is entitled to an acquittal and you must find him not guilty.”
Under the due process clause of the federal Constitution, the government “bears the burden of proving all elements of the offense charged [citations], and must persuade the factfinder ‘beyond a reasonable doubt’ of the facts necessary to establish each of those elements [citations].” (Sullivan v. Louisiana (1993) 508 U.S. 275, 277-278.) In reviewing the correctness of the reasonable doubt instructions given, the proper inquiry is “whether there is a reasonable likelihood that the jury understood the instructions to allow conviction based on proof insufficient to meet the Winship standard.” (Victor v. Nebraska (1994) 511 U.S. 1, 6.) As we noted previously, we must consider appellant’s challenge to the CALCRIM No. 220 instruction in light of the jury instructions as a whole. (Galloway, supra, 100 Cal.App.3d at pp. 567-568.)
Appellant acknowledges that in People v. Ramos (2008) 163 Cal.App.4th 1082, 1088-1089 (Ramos), Division One of this court rejected the same argument appellant makes. In Ramos, the trial judge enumerated each of the elements of the charged crime (second degree murder) and the special allegation, and stated that the People were obligated to prove each of those elements in order for the defendant to be found guilty. Thus, it concluded that taken as a whole, the instructions adequately informed the jury that the prosecution was required to prove each element of the charged crime beyond a reasonable doubt. (Id. at p. 1089.)
Appellant repeats his argument that the risk of harm element is not contained within the “proof list” in CALCRIM No. 1203, and therefore argues that Ramos does not apply because taken together, CALCRIM No. 1203 and CALCRIM No. 220 do not inform the jury that each element of the charged aggravated kidnapping must be proved beyond a reasonable doubt. Again, we disagree. The CALCRIM No. 220 instruction on reasonable doubt instructed the jury that “Whenever I tell you the People must prove something, I mean they must prove it beyond a reasonable doubt.” Taken together with CALCRIM No. 220, the jury necessarily understood the CALCRIM No. 1203 instruction as requiring proof beyond a reasonable doubt of the “substantial distance” of the movement, i.e., movement that “must have substantially increased the risk of physical or psychological harm to the person.” No instructional error is shown.
III. Substantial Evidence Supports the Kidnapping for Robbery Conviction
Finally, appellant contends there was insufficient evidence of asportation to support his kidnapping for robbery conviction. He asserts that he moved Harris “on foot from a deserted place with no observers into the [smog] shop, where everything he did and said was under the direct observation of two witnesses.” He argues that any risk of harm was not caused by the movement. He concludes there was no evidence that his movement of Harris increased Harris’s risk of harm, and, instead, the evidence showed that the movement decreased Harris’s risk of harm.
“When a defendant challenges the sufficiency of the evidence, the reviewing court ‘must determine “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” [Citation.] “[T]he court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence-that is, evidence which is reasonable, credible, and of solid value-such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” [Citation.]’ [Citation.] ‘Substantial evidence includes circumstantial evidence and any reasonable inferences drawn from that evidence. [Citation.]’ [Citation.] Indeed, we ‘ “ ‘presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.’ ” [Citation.]’ [Citation.]” (Curry, supra, 158 Cal.App.4th at p. 778.)
After appellant robbed Harris at gunpoint of the contents of Harris’s pockets, he insisted that Harris must have “more stuff than that.” When Harris responded that what he had was in his truck, appellant moved Harris at gunpoint the 200 yards from the robbery scene to the smog shop with the intent of forcing Harris to drive appellant to an ATM or “go buy things.” At the smog shop, appellant robbed Harris of additional items. Thus, appellant’s movement of Harris was not merely incidental to the first robbery; it was intended to facilitate a further robbery.
In addition, the movement increased the risk of harm to Harris. Whether the movement subjects the victim to a substantial increase in risk of harm above and beyond that inherent in robbery “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.” (People v. Rayford (1994) 9 Cal.4th 1, 13-14 (Rayford), and cases cited therein; see also Dominguez, supra, 39 Cal.4th at p. 1152.) Appellant’s movement of Harris at gunpoint from the scene of the first robbery to the smog shop may not have “decreased [the] likelihood of detection.” However, it certainly increased the dangers inherent in an escape attempt. As Harris’s actual escape demonstrates, there was a risk that appellant might fire his weapon to abort the escape or some third party could be injured as Harris drove rapidly out of the shop. “The fact that these dangers do not in fact materialize does not, of course, mean that the risk of harm was not increased. [Citations.]” (Rayford, at p. 14.) The evidence was sufficient to permit a reasonable jury to find the requisite asportation element of kidnapping for robbery.
DISPOSITION
The judgment is affirmed.
We concur. JONES, P.J., NEEDHAM, J.