Opinion
F073360
10-23-2018
THE PEOPLE, Plaintiff and Respondent, v. JOSE GUADALUPE MENDOZA, Defendant and Appellant.
Christine Vento, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Lewis A. Martinez, Nora S. Weyl, and Jennifer Oleska, Deputy Attorneys 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Kern Super. Ct. No. BF158851A)
OPINION
APPEAL from a judgment of the Superior Court of Kern County. John W. Lua, Judge. Christine Vento, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Lewis A. Martinez, Nora S. Weyl, and Jennifer Oleska, Deputy Attorneys General, for Plaintiff and Respondent.
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In an information filed March 13, 2015, defendant was charged with kidnapping to commit robbery (count 1; Pen. Code, § 209, subd. (b)); second degree burglary (count 2; § 460, subd. (b)); second degree robbery of Eulisses Mercado (count 3; § 212.5, subd. (c)); second degree robbery of Olivero Arvizu (count 4; § 212.5, subd. (c)); first degree robbery of Eulisses Mercado (count 5; § 212.5, subd. (b)); and attempted second degree robbery of Olivero Arvizu (count 6; §§ 664, 212.5, subd. (b).) The information alleged defendant personally used a firearm during the commission of all counts. (§ 12022.5, subd. (a).) Finally, the information alleged defendant personally used a firearm during the commission of the kidnapping to commit robbery within the meaning of section 12022.53, subdivision (b). (But see fn. 4, post.)
All further statutory references are to the Penal Code unless otherwise stated.
The prosecution later dismissed count 3.
The information cites section 212.5, subdivision (b). It appears the information should have cited subdivision (c), instead. (See §§ 212.5, subds. (b)-(c).)
The jury convicted defendant on all counts (except count 3, previously dismissed) and found true all allegations except the section 12022.53, subdivision (b) allegation attached to count 5.
The information alleged an enhancement under section 12022.53, subdivision for counts 1, 3, 4, 5, and 6. However, each of these allegations averred that defendant "did personally use a firearm during the commission of kidnapping to commit robbery ...." (Capitalization omitted, italics added.) Presumably, each allegation should have identified the particular crime the enhancement was attached to, rather than each of them identifying kidnapping to commit robbery.
The jury ultimately found true that defendant personally used a firearm during the commission of second degree robbery under count 4, and during the commission of attempted robbery in the first degree under count 6.
The court sentenced defendant to life with the possibility of parole on count 1, plus 10 years for the section 12022.53, subdivision (b) enhancement. On count 4, defendant was sentenced to a consecutive term of three years, plus 10 years for the section 12022.53, subdivision (b) enhancement. On count 6, defendant was sentenced to a consecutive term of 8 months, plus three years four months for the section 12022.53, subdivision (b) enhancement. The sentences on counts 2 and 5, and their enhancements, were stayed pursuant to section 654.
The court stayed sentence on the section 12022.5, subdivision (a) enhancements pursuant to California Rules of Court, rule 4.447.
FACTS
Shortly before 9:14 p.m. on January 13, 2015, an incident occurred a gas station on Panama Lane in Kern County. Eulisses Mercado pulled up to the pump closest to the street and farthest from the station's convenience store. Mercado saw a white El Camino pull up "really slow." An individual - later identified as defendant - exited the driver's side of the El Camino. The passenger - who defendant later identified as Miguel Aguilar - got out and went in to the driver's side of the El Camino. Defendant walked toward Mercado until he was only about one foot away. Defendant was concealing a gun under his jacket. He said, " 'Look, I don't want to do anything stupid, I don't want to do anything crazy, but I really need money.' " Defendant then displayed the gun and then put it away. Mercado told defendant that he also did not have much money. Defendant said he was going through a " 'situation' " and needed money. Mercado gave him $20. Defendant said, " 'Well, you gotta have more in your ATM' " or " 'in your debit card.' " Mercado tried to tell him he did not have much money, but defendant said, " 'Then let's go in [sic] the ATM. Let's check.' " Mercado testified that he went into the store because he was afraid.
Mercado was somewhat tentative with his in-court identification of defendant. But Mercado was "100 percent" positive that the person officers apprehended was the man who had approached him.
Mercado initially tried to get $60 out of the ATM, but there were insufficient funds. So, Mercado withdrew $40 and handed them to defendant. Defendant said, " 'Come on' " and gestured for Mercado to follow him out of the store. Mercado told defendant to go without him, because Mercado was going to get a food order he had placed before the incident. Defendant walked away, and Mercado went to a nearby taco truck in the parking lot. Some women at the taco truck encouraged Mercado to call the police, which he did. As Mercado was talking with these women, he saw defendant approach another vehicle.
The movement of Mercado from outside into the gas station store to take his ATM withdrawal is the basis for the kidnapping to commit robbery charge in count 1.
Romero Arvizu had come to buy tacos at the taco truck. After purchasing his tacos, he spoke with a friend for more than half an hour. As he returned to his truck, he saw a white El Camino. Someone - later identified as defendant - began approaching him from the El Camino and told Arvizu to roll down his window. According to Arvizu, defendant "pulled out" a gun and said, " 'Give me all your money or I'll shoot all your truck [sic].' " Arvizu told defendant he spent all his money on tacos. Arvizu told defendant, " 'I have the ATM [sic].' " Defendant told Arvizu to "go get money," but Arvizu responded that the ATM was not working. Defendant responded that he was sure the ATM worked. Arvizu told defendant he would bring him back $100. Defendant took Arvizu's keys and did not allow him to roll up the truck's window. Once inside the convenience store, the attendant told Arvizu not to withdraw money and that police were on the way.
Police officers located defendant behind a restaurant adjacent to the gas station. Behind the restaurant, near a dumpster, Officer Herron located a loaded .38-caliber revolver and Arvizu's keys. Defendant had three $20 bills in his pocket.
Defendant testified offering a different version of events. Defendant claimed Mendoza gave him money willingly to facilitate a drug sale, and that he never even spoke to Arvizu.
DISCUSSION
I. There is Sufficient Evidence to Support Defendant's Conviction on Count 1
Defendant was convicted of kidnapping to commit robbery. That crime occurs when someone "kidnaps or carries away any individual to commit robbery" (§ 209, subd. (b)(1)) and "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 robbery. (§ 209, subd. (b)(2).) However, the increased harm need not be substantial. (People v. Robertson (2012) 208 Cal.App.4th 965, 979.) Defendant argues there was insufficient evidence showing the movement of the victim was beyond that merely incidental to the robbery and that the movement increased the risk of harm to the victim.
When a defendant challenges a judgment for insufficiency of the evidence, we " ' " ' "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.]" (People v. Gonzales and Soliz (2011) 52 Cal.4th 254, 294.) " 'We presume " 'in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.' [Citation.] This standard applies whether direct of circumstantial evidence is involved." [Citation.]' [Citation.]" (Ibid.)
Kidnapping to commit robbery will always involve a kidnapping that is incidental to the robbery. Otherwise, it would not be a kidnapping "to commit robbery." (§ 209, subd. (b)(1), italics added.) Subdivision (b)(2) only requires that the kidnapping not be merely incidental to the robbery. (§ 209, subd. (b)(2).)
Defendant contends that Mercado's movement was "necessary to complete the robbery." But the fact that a kidnapping is "necessary" to complete a robbery does not remove it from the scope of section 209. To the contrary, in order for a kidnapping to become a kidnapping "to commit robbery" (§ 209, subd. (b)(1), italics added), the kidnapping must be committed in furtherance of the robbery.
For this reason, we disagree with People v. Williams (2017) 7 Cal.App.5th 644, to the extent it relied on the fact that none of the movements in that case were "unnecessary to the robbery." (See id. at p. 669.)
Section 209, subdivision (b)(2) excludes kidnappings that are merely incidental to the robbery. Read together, subdivisions (b)(1) and (b)(2) require that the kidnapping be incidental to the robbery (§ 209, subd. (b)(1)), but not merely incidental to the robbery (§ 209, subd. (b)(2).) Consequently, the fact that a kidnapping is incidental to a robbery is a necessary (though not sufficient) condition for a conviction under section 209. In other words, the fact that a kidnapping is incidental to the robbery strengthens the prosecution's case, it does not weaken it.
Of course, the fact the kidnapping was incidental to the robbery is not enough. The kidnapping must also increase the risk of harm to the victim. Defendant argues there was no substantial evidence the kidnapping increased the risk of harm because it did not reduce the victim's ability to escape, decrease the likelihood of detection, or elevate the risk of serious injury or death. However, the jury could have reasonably concluded that moving from outdoors - where Mercado could have fled in any of several directions - into the convenience store "reduc[ed] the prospects of ... escape." (People v. James (2007) 148 Cal.App.4th 446, 457, fn. omitted.) Moreover, movement from an open area to a less open area can substantially decrease the possibility of detection or rescue. (People v. Dominguez (2006) 39 Cal.4th 1141, 1153.)
Defendant urges other inferences from the evidence, such as: the store was well-lit and had people inside, making it more "risky" for appellant to shoot Mercado. But our standard of review only permits consideration of inferences favorable to the judgment.
Defendant argues that Mercado's movement from the gas station pumps to the gas station store "could be" considered movement within the property of the gas station. But the fact that the movement may have occurred entirely within a single premises is not dispositive. (See People v. Timmons (1971) 4 Cal.3d 411, 415.)
II. The Trial Court did not Commit Reversible Error in Ruling that Section 654 Does not Apply to Counts 4 and 6
" 'Penal Code section 654 prohibits punishment for two crimes arising from a single indivisible course of conduct. [Citation.] If all of the crimes were merely incidental to, or were the means of accomplishing or facilitating one objective, a defendant may be punished only once. [Citation.] If, however, a defendant had several independent criminal objectives, he may be punished for each crime committed in pursuit of each objective, even though the crimes shared common acts or were parts of an otherwise indivisible course of conduct. [Citation.] The defendant's intent and objective are factual questions for the trial court, and we will uphold its ruling on these matters if it is supported by substantial evidence. [Citation.]' [Citations.]" (People v. Bui (2011) 192 Cal.App.4th 1002, 1015, italics added.)
Defendant contends that taking Arvizu's car keys (count 4; second degree robbery) was done to facilitate the robbery of Arvizu (count 6; attempted first degree robbery). We agree that there was substantial evidence the taking of Arvizu's car keys facilitated the attempted first degree robbery of Arvizu. But, more importantly, we also agree with the Attorney General that it is reasonable to infer defendant had the simultaneous goal of actually obtaining the truck, possibly to escape. Surveillance video showed that after walking out of the gas station store with Mercado, defendant returned to where the El Camino and Mercado's motorcycle had been. But by then, the El Camino had left (presumably driven away by Aguilar). A reasonable inference is that defendant expected the El Camino to be there when he returned, and the fact that it was not suggests defendant would have become unsure as to whether he could rely on the El Camino if he needed to escape quickly. Defendant subsequently approached and threatened Arvizu, who agreed (under duress) to withdraw money from the ATM. Then, defendant took Arvizu's keys. Surely, the evidence does raise a strong inference defendant took Arvizu's keys, at least in part, to ensure that Arvizu would return with the money rather than flee. Indeed, Arvizu said defendant "told [him] to give [him] the keys as well so that I would come back." But the fact that Arvizu was largely cooperative before defendant took his keys, and the fact that defendant had reason to doubt the reliability of the El Camino for escape, raises a reasonable inference he took Arvizu's car keys for the additional reason of acquiring an alternate means of escape. Because this inference is reasonable and supports the trial court's ruling not to stay the sentence, we affirm. III. The Trial Court Did not Err in its Ruling on Defendant's Pitchess Motion
This also defeats defendant alternate argument that even if he took the car keys with the objective of stealing Arvizu's vehicle, his crimes against Arvizu would still involve only a single objective - i.e., taking things of value from Arvizu. Accepting the inference described above, defendant would have been taking Arvizu's truck as a means of escape rather than as a thing of monetary value. This consideration distinguishes the present circumstances from cases like People v. Williams, supra, 7 Cal.App.5th 644 and People v. Bauer (1969) 1 Cal.3d 368.
Defendant filed a Pitchess motion seeking disclosure of personnel files pertaining to Officer Herron. The defense contended that Officer Herron lied about where he found the firearm and Arvizu's keys. Consequently, defendant sought Pitchess evidence concerning Officer Herron.
Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess). --------
Under the Pitchess decision and its corresponding statutory scheme, "a neutral trial judge ... examines the personnel records in camera ... and orders disclosed to the defendant only those records that are found both relevant and otherwise in compliance with statutory limitations." (People v. Mooc (2001) 26 Cal.4th 1216, 1227.) Here, the trial court conducted an in camera review and determined that no documents were subject to discovery. We have reviewed the record under seal and independently conclude that the trial court did not abuse its discretion in its ruling upon the Pitchess motion.
DISPOSITION
Defendant's convictions are affirmed. On agreement of the parties, the matter is remanded for the trial court to consider whether or not to strike the firearm enhancements under sections 12022.5 and 12022.53 pursuant to Senate Bill No. 620 (2017-2018, Reg. Sess., S.B. 620, Stats. 2017, ch. 682.) and to correct the abstract of judgment to accurately reflect defendant's sentence on the 12022.5, subdivision (a) enhancement (if not stricken).
/s/_________
POOCHIGIAN, Acting P. J. WE CONCUR: /s/_________
MEEHAN, J. /s/_________
DESANTOS, J.