Opinion
C076487
03-06-2017
THE PEOPLE, Plaintiff and Respondent, v. MATTHEW COPELAND MILLER, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SF125017A)
Following the denial of his motion to suppress evidence pursuant to Penal Code section 1538.5, defendant Matthew Copeland Miller was tried and convicted of kidnapping for robbery (§ 209, subd. (b)(1); count 1), attempted second degree robbery (§§ 211, 664; count 2), being a felon in possession of a firearm (§ 29800, subd. (a)(1); count 3), making criminal threats (§ 422; count 4), unlawfully possessing ammunition (§ 30305, subd. (a)(1); count 5), and knowingly and maliciously attempting to dissuade a victim by force or threat (§ 136.1, subd. (c)(1); count 6). The jury also found true allegations defendant personally used a firearm in the commission of counts 1 and 2 (§ 12022.53, subd. (b)). In a bifurcated proceeding, the jury found true an allegation defendant had one prior conviction within the meaning sections 667, subdivisions (a) and (b) and 1170.12, subdivision (b).
All further undesignated statutory references are to the Penal Code.
Defendant was sentenced to an aggregate term of 37 years to life in state prison, consisting of 14 years to life (the minimum period of confinement for parole eligibility doubled for the prior strike [§ 3046]) on count 1 (kidnapping for robbery), plus a consecutive 10 years for the gun-use enhancement, and a consecutive 8 years (the upper term, doubled for the prior strike) on count 6 (attempting to dissuade a victim), plus 5 years for the prior serious felony conviction. The sentences imposed on counts 2, 3, 4, and 5 were stayed pursuant to section 654.
On appeal, defendant's primary contentions are that there was insufficient evidence to support his convictions for kidnapping to commit robbery and attempting to dissuade a victim. He also claims that the trial court erred in instructing the jury with respect to the attempting to dissuade a victim offense, refusing to stay his sentence for the same pursuant to 654, and denying his motion to suppress. We shall conclude that there is insufficient evidence to support the asportation element of kidnapping to commit robbery, reverse defendant's conviction for that offense, and remand the matter to the trial court for resentencing. We shall affirm the judgment in all other respects.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Prosecution's Case-in-chief
On August 12, 2013, Jessica R. arrived to work at Sally's Beauty Supply (Sally's) on North Wilson Way in Stockton at 8:45 a.m. The store was part of a strip mall, and had neighbors on both sides. The store was approximately 48 feet in length from front to back. There were full-length, glass windows across the front of the store, but no windows on the either side of the store or along the back wall. There was a counter at the front of the store, with two registers. The store's safe was located behind the counter. There was a door along the back wall that led to an office, and there was another door inside the office that led outside.
When Jessica R. arrived at work, her manager was in the back office counting the money. At about 9:00 a.m., Jessica R. went to the front of the store, unlocked the front door, and went behind the counter to turn on the radio. Moments later, a man, later identified as defendant, entered the store and said hello. When Jessica R. turned around to face him, she saw that he had a gun. Defendant told Jessica R., "Hurry up and give me the fucking money or I'm going to fucking shoot you." Jessica R. entered her code into the safe and explained to defendant that there was a timer on the safe, and that he would have to wait 10 minutes before the safe would open. After displaying the gun, defendant placed it in his "sweater pocket" where it remained.
Meanwhile, Jessica R.'s manager, who was in the back office counting the money, heard a man's voice and began to listen. When she heard the man say, "Hurry up and give me the money or I'll fucking shoot you," she realized the store was being robbed and fled out the back door to look for help. She stopped a garbage truck driver and asked him to call 911. She also called 911 herself. She did not see the person who was robbing the store before she fled.
When the manager fled out the back door, a chime sounded. Defendant asked Jessica R. who was back there, and Jessica R. said she did not know. Defendant told her, "Don't fucking lie to me or I'm going to shoot you." At that moment, Jessica R. heard a truck drive by and told defendant, "It's the loaders that go back there." Defendant responded, "Don't make me go back there or I'm going to shoot you." When Jessica R. again stated that she did not know who was back there, defendant said, "Oh, come on, let's go." Worried defendant would shoot her, Jessica R. led him to the back office. Once there, she opened the door, stood inside the doorway, and saw that the back door leading to the outside was wide open. Defendant stuck his head out the back door, looked both ways, and said, "[A]ll right . . . [c]ome on, let's go back to the front," and the two returned to the front of the store. Jessica R. estimated that she was "back there" with defendant for about 45 seconds to 1 minute.
After returning to the front of the store, Jessica R. began to hear sirens "coming from every corner of the area." As the sirens got closer, defendant asked, "What the fuck? Who is that?" Jessica R. responded, "I don't know. How could I have called anybody if I've been standing in front of you this whole time?" Defendant continued to look out the window and finally stated, "All right. I'm going to go check." Before leaving, he told Jessica R., "If anything happens, I'm going to come back and fucking shoot you."
Once defendant was out of view, Jessica R. locked the front door, grabbed her cell phone, and ran out the back door, where she met her manager and the police.
The store's surveillance camera recorded the incident, and a DVD of the recording was played for the jury. The DVD depicted defendant entering the store at 8:56:03 a.m. At 8:58:13, defendant and Jessica R. disappeared from view when they went to investigate the noise that came from the back office. They returned to the front of the store about 30 seconds later. At 9:01:39, defendant left the store. Jessica R. testified that the clock on the recording was about 4 minutes behind the actual time.
At approximately 9:00 a.m. on the morning in question, Stockton Police Officer Robin Harrison responded to the report of a robbery at the store. When she entered the mall parking lot, she saw a Black man leaving the area of the store. At trial, she identified defendant as the person she observed. Defendant was walking at a regular pace, south toward the check cashing business at the end of the strip mall and approximately 270 feet south of Sally's. As she drove closer to defendant, she broadcast over the radio that a Black male was walking near the check cashing business, and she was not sure if he had left Sally's.
Stockton Police Officers Esteban Arrieta and Kenneth Pavey responded to the reported robbery in a black and white patrol vehicle. As they were driving toward the back of the mall, they heard Harrison's broadcast that a possible Black male suspect with black clothing was near the check cashing business. Pavey stopped the patrol vehicle, and he and Arrieta saw the suspect, later identified as defendant, at the corner of the mall, near the check cashing business. There was no one else in the area. Pavey and Arrieta got out of their patrol car. Pavey instructed defendant, "Show me you hands. Get on the ground." Arrieta got out with his gun drawn "because it's an armed robbery." Defendant was already running. Arrieta pointed his gun at defendant and yelled, "Stop police." Defendant looked at Arrieta and continued running. Arrieta, along with other police officers, chased after defendant. Defendant ran across the street toward an empty lot and then climbed through a hole in a cyclone fence. When Arrieta realized defendant was not going to stop, Arrieta holstered his gun and retrieved his Taser. After following defendant through the cyclone fence, Arrieta "Tased" him. Defendant fell to the ground but got up and continued running. Pavey caught up to defendant and tackled him to the ground. Defendant continued to struggle, and Arrieta "Tased" him two more times. When defendant rolled toward Arrieta, Arrieta saw a handgun on the ground within inches of defendant's waistband. Arrieta yelled, "gun," and grabbed the weapon. Defendant was then taken into custody.
There were six .45-caliber bullets in the gun's magazine, and a .45-caliber bullet in the gun's chamber. B. The Defense
Defendant testified in his own defense at trial. He stated that he entered Sally's on the morning in question because he wanted to get money and "product" that was taken from him by Jessica R.'s boyfriend. He did not try and rob the store and did not want any of the money in the registers or safe. He brought a plastic toy gun and used it to frighten Jessica R. into calling her boyfriend to come to the store and return defendant's property. Defendant waited inside Sally's because Jessica R. told him that her boyfriend was coming to the store. As he sat waiting, he heard the back door slam. He asked Jessica R. who it was, and when she said she did not know, he walked to the back of the store by himself, opened the door to the office, and found the back door wide open. He looked outside and did not see anyone. When he came back inside, Jessica R. was standing next to the office door. Jessica R. then returned to the front of the store, and defendant followed her. When defendant heard sirens, he accused Jessica R. of calling the police, which she denied. Defendant left "instantly." He denied telling Jessica R. that he would come back and shoot her if anything happened.
As he left, he walked into the middle of a bunch of police officers who were yelling at him to put his hands up and get on the ground. He fled because he had absconded on parole and there was a warrant out for his arrest. After climbing through the fence, it occurred to him that he was only wanted for absconding on parole, which would result in a citation, and decided to turn around and walk back toward the officers As he did so, Arrieta "Tased" him, causing him to fall on the ground. While he was on the ground, officers beat him up. He also claimed that officers took his toy gun and replaced it with the gun Arrieta testified was found underneath defendant.
I
There Is Insufficient Evidence to Support Defendant's Conviction for Kidnapping to
Commit Robbery
Defendant first contends that his conviction for kidnapping to commit robbery must be reversed because there was insufficient evidence of asportation. We agree.
" 'On appeal, an appellate court deciding whether sufficient evidence supports a verdict must determine whether the record contains substantial evidence—which we repeatedly have described as evidence that is reasonable, credible, and of solid value—from which a reasonable jury could find the accused guilty beyond a reasonable doubt.' [Citations.] We presume in support of the judgment 'the existence of every fact the trier could reasonably deduce from the evidence.' [Citation.]" (People v. Vines (2011) 51 Cal.4th 830, 869 (Vines).)
Kidnapping for robbery, or aggravated kidnapping, requires movement of the victim that (1) is beyond that merely incidental to the commission of the robbery, and (2) increases the risk of harm to the victim over and above that necessarily present in the crime of robbery itself. (§ 209, subd. (b)(2); People v. Daniels (1969) 71 Cal.2d 1119, 1139 (Daniels).) "These two elements are not mutually exclusive but are interrelated." (Vines, supra, 51 Cal.4th at p. 870.)
This has been referred to as the "two-part Daniels . . . test" (People v. Rayford (1994) 9 Cal.4th 1, 21), since it derives originally from Daniels. The Daniels test was codified in amendments to section 209 enacted by the Legislature in 1997. (See People v. James (2007) 148 Cal.App.4th 446, 454 & fn. 5 (James).) As originally enunciated by our Supreme Court, the second prong of the Daniels test required the increase in risk to the victim must be substantial. (Daniels, supra, 71 Cal.2d at p. 1140.) The 1997 amendments to section 209 eliminated the requirement of a "substantial[]" increase in risk. (James, at p. 454, fn. 5; see People v. Martinez (1999) 20 Cal.4th 225, 232, fn. 4.)
"With regard to the first prong, the jury considers the 'scope and nature' of the movement, which includes the actual distance a victim is moved. [Citations.] There is, however, no minimum distance a defendant must move a victim to satisfy the first prong. [Citations.]
" ' "The second prong of the Daniels test refers to whether the movement subjects the victim to a[n] . . . 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.]" (Vines, supra, 51 Cal.4th at pp. 870-871.)
"As a general rule, 'when in the course of a robbery a defendant does no more than move his victim around inside the premises in which he finds him . . . his conduct generally will not be deemed to constitute [aggravated kidnapping].' (Daniels, supra, 71 Cal.2d at p. 1140.) This is true whether the robbery is residential or commercial. This is because 'that 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.' (People v. Washington [(2005)] 127 Cal.App.4th [290,] 300.)" (James, supra, 148 Cal.App.4th at pp. 455-456.) There is, however, "no rigid 'indoor-outdoor' rule by which moving a victim inside the premises in which he is found is never sufficient asportation for kidnapping for robbery while moving a victim from inside to outside (or the reverse) is always sufficient." (Id. at p. 456, italics omitted.)
In Daniels, the defendants, "in the course of robbing and raping three women in their own homes, forced them to move about their rooms for distances of 18 feet, 5 or 6 feet, and 30 feet respectively." (Daniels, supra, 71 Cal.2d at p. 1126.) The court found that "the brief movements which they compelled their victims to perform were solely to facilitate [the robberies and rapes]," (id. at pp. 1130-1131) and that "such incidental movements are not of the scope intended by the Legislature in prescribing the asportation element of the same crime." (Id. at p. 1134, fn. omitted.)
One of the victims in Daniels, Miss K., was forced at gunpoint to walk "towards the kitchen and then towards the bedroom to see if anyone was there. [One of the defendants] then sat her down on the bed and asked for her money. The distance that the parties had covered was about 30 feet." (Daniels, supra, 71 Cal.2d at p. 1126.) The Daniels court concluded that such "brief movements which defendants . . . compelled their victims to perform in furtherance of robbery were merely incidental to that crime and did not substantially increase the risk of harm otherwise present." (Id. at p. 1140.)
The movement of Jessica R. in this case is very similar to the movement of Miss K. in Daniels. Jessica R. was forced to walk to the back of the store so that defendant could see if anyone was in the back office. After determining that no one was there, they returned to the front of the store. The entire trip took approximately 30 seconds and spanned a distance of approximately 48 feet. As in Daniels, this brief movement to see if anyone was in the back room was done in furtherance of the attempted robbery and was merely incidental to that crime. (Daniels, supra, 71 Cal.2d at p. 1139; see also People. v. Perkins (2016) 5 Cal.App.5th 454, 469-470 [reversing conviction for aggravated kidnapping where "the movement was for a short distance inside a small private residence from one room to another," and there was insufficient evidence indicating the movement increased the risk of harm to the victim or decreased the likelihood of detection].)
While our Supreme Court has held that movements to facilitate robbery or a rape "that are for a substantial distance rather than brief are not incidental thereto within the meaning of Daniels" (In re Earley (1975) 14 Cal.3d 122, 130 (Earley)), the record in this case does not support a finding that the movement was substantial. In Earley, the court concluded that the movement of the victim some 10 to 13 blocks "was substantial, [and therefore] it was not 'merely incidental to the commission of the robbery' [citation], even though it may have been solely to facilitate the commission of the robbery." (Id. at p. 126, fn. omitted.) The cases cited in Earley where the movement was found to be substantial also involved victims who were moved at least one block. (Id. at p. 130, citing People v. Thornton (1974) 11 Cal.3d 738, 767-768, disapproved on other grounds in People v. Flannel (1979) 25 Cal.3d 668, 684, fn. 12, [one and four blocks]; People v. Stephenson (1974) 10 Cal.3d 652, 658-659 [five or six blocks].)
The People's reliance on People v. Shadden (2001) 93 Cal.App.4th 164, 169 for the proposition that "[m]ovement of as little as nine feet has been found to be a substantial distance" is misplaced because the facts of that case are readily distinguishable. The defendant in that case drug the victim into a back room, a distance of nine feet, and shut the door before raping her. (Id. at p. 168.) In rejecting the defendant's claim that such movement "was both incidental to the attempted rape and insubstantial," the court found, "Where movement changes the victim's environment, it does not have to be great in distance to be substantial. [Citation.] [The defendant] slugged and dragged [the victim], nine feet from an open area to a closed room. From these facts the jury could reasonably infer that the distance was substantial for [the victim] and it changed her environment." (Id. at pp. 168-169.) The court further concluded, "The jury could reasonably infer that the movement was not incidental to the attempted rape because [the defendant] only began the sexual attack after he moved her." (Id. at p. 169.)
Here, the record shows that Jessica R. was moved from the front of the store just inside the door of the back office, where she stood for a few seconds while defendant checked to make sure no one else was there, before returning to the front of the store. She was not held in the back office. Nor was she moved from an "open area to a closed room." To the contrary, the entire journey took approximately 30 seconds. This brief and temporary movement did not change Jessica R.'s environment in any appreciable way. Moreover, it was done in the midst of the attempted robbery and was incidental thereto insofar as its sole purpose was to confirm that no one else was present. (See Daniels, supra, 71 Cal.2d at p. 1126, 1140.)
The People also assert that the movement of Jessica R. was not incidental to the attempted robbery because defendant "did not need to take [Jessica R.] to the back office to complete the robbery," noting that "[t]he safe and [Jessica R.], the person who could open it for him, were in the front of the store with [defendant]." Our Supreme Court rejected a similar argument in People v. Williams (1970) 2 Cal.3d 894. There, the Attorney General claimed that "the movements and forced action of [the victim] in obtaining and carrying the tires and tool box" " 'were not incidental because they were not necessary movements of the type which ordinarily occur during the commission of a robbery,' " citing dictionary definitions of the word 'incidental.' " (Id. at p. 902.) The court concluded that " ' merely incidental to the commission of the robbery,' as used in Daniels, . . . does not have the restricted meaning urged by the Attorney General. Daniels stated, 'In the present case . . . defendants had no interest in forcing their victims to move just for the sake of moving; their intent was to commit robberies and rapes, and the brief movements which they compelled their victims to perform were solely to facilitate such crimes. It follows, a fortiori, that those movements were "incidental to" the robberies and rapes within the meaning of [Cotton v. Superior Court [1961] 56 Cal.2d 459], and that "the Legislature could not reasonably have intended that such incidental movement be a taking . . . from one part of the country to another." ' ([Daniels, supra,] 71 Cal.2d at p. 1131.) Similarly here the movements of [the victim] on the gas station premises both before and after he was locked in the bathroom appear to have been brief and to have been solely to facilitate the commission of the crime of robbery. It thus appears that those movements were merely incidental to the commission of the robbery within the meaning of Daniels." (Ibid.)
As set forth above, the same is true here. The movement of Jessica R. was brief and done solely to facilitate the attempted commission of the crime of robbery. Accordingly, the movement was merely incidental to the attempted robbery within the meaning of Daniels.
As the People point out, in James, supra, 148 Cal.App.4th 446, our colleagues in Division Three of the Second District, construed People v. Corcoran (2006) 143 Cal.App.4th 272, decided by another division of that district, as holding "that a movement that is not necessary to a robbery is also not merely incidental to it." (James, at p. 455, fn. omitted.) We do not interpret Corcoran as equating the term "incidental" with the term "necessary."
In Corcoran, the defendant and his accomplice "aborted their attempted robbery of cash from the bingo hall after [a worker] escaped and fled to a neighboring business. At gunpoint, they herded the victims approximately 10 feet from a public area to a small back office without windows and with a solid door. Believing that [one of the victims] was trying to call the police, defendant pulled what he believed to be a telephone cord out of the wall. He threatened to shoot the victims if they left the office." (Corcoran, supra, 143 Cal.App.4th at p. 279, fn. omitted.) At oral argument, the defendant conceded that the distance the victims were moved was " 'substantial' " under the relevant case law. (Id. at p. 279, fn. 5.) "Considering the totality of the circumstances, and understanding that measured distance is not alone determinative," the appellate court held that substantial evidence supported the kidnapping convictions. (Id. at p. 280.) In reaching its conclusion, the court observed, "Unlike the circumstances in People v. Washington (2005) 127 Cal.App.4th 290 (Washington), in which the appellate court held that movement of bank employees to a vault room out of public view did not satisfy the asportation standard because that movement was necessary to obtain the money and complete the robbery, in the present case the victims were not taken to the location of the money the robbers sought to obtain. In Washington, 'there was no excess or gratuitous movement of the victims over and above that necessary to obtain the money in the vault.' (Washington, supra, 127 Cal.App.4th at p. 299.)" (Id. at p. 279.) The only time the Corcoran court used the term "necessary" was in its discussion of Washington. (Corcoran, at p. 279.)
Unlike James, we do not read Corcoran as holding "that a movement that is not necessary to a robbery is also not merely incidental to it." (James, 148 Cal.App.4th at p. 455.) Rather, Corcoran interpreted Washington as holding that movement that "was necessary to obtain the money and complete the robbery" was incidental to the robbery under Daniels. (Corcoran, supra, 143 Cal.App.4th at p. 279.) It does not follow, however, that movement that is not necessary to obtain the money and complete the robbery is not incidental under Daniels. If that were the case, the movement of Miss K. in Daniels would not be incidental because, strictly speaking, moving her towards the kitchen and then towards the bedroom to see if anyone was there was not necessary to obtain the money and complete the robbery or the rape. (Daniels, supra, 71 Cal.2d at pp. 1126, 1134.)
In sum, our Supreme Court has never required that a movement be necessary to a crime in order to be considered incidental thereto under Daniels, and for the reasons set forth above, we find that imposing such a requirement would be inconsistent with Daniels.
With respect to the second prong, we conclude that moving Jessica R. to the back of the store and just inside the back office for a matter of seconds to check to see if anyone was there did not appreciably increase the risk of harm to Jessica R. beyond that inherent in the robbery itself. The People make much of the fact that Jessica R. was taken "to a closed-off back office, which had no windows and was not visible from [the] front entrance because of store shelves." The evidence shows that Jessica R. stepped just inside the door to the back office for a matter of seconds--the time it took defendant to walk through the office, stick his head out the back door, and look outside. Unlike the victims in Vines, James, and Corcoran, cited by the People, Jessica R. was not held in the back office for any length of time. (Vines, supra, 51 Cal.4th at p. 871 [victims taken down hidden stairway and locked in freezer]; James, supra, 148 Cal.App.4th at pp. 457-458 [victim brought outside bingo club to enclosed inside and held there for up to an hour during robbery]; Corcoran, supra, 143 Cal.App.4th at pp. 279-280 [victims herded into back office at gunpoint after robbery was aborted and told they would be shot if they attempted to leave].) This brief movement, done solely to facilitate the attempted robbery, did not appreciably increase the risk of harm to Jessica R. beyond that inherent in the crime itself.
In sum, there is insufficient evidence of asportation to support defendant's kidnapping for robbery conviction.
Because we reverse defendant's conviction for kidnapping for robbery, we need not consider his claim that the trial court erred in sentencing defendant consecutively on that count and attempting to dissuade a victim by force or threat.
II
There is Sufficient Evidence to Support Defendant's Conviction for Attempting to
Dissuade a Victim by Force or Threat
Defendant next contends that there is insufficient evidence to support his conviction for attempting to dissuade a victim by force or threat. We are not persuaded.
As detailed above, defendant repeatedly threatened to shoot Jessica R. during the attempted robbery and was convicted both of making criminal threats and dissuading a victim by force or threat. We are concerned here with defendant's final statement to Jessica R., made as the sound of sirens was getting louder. Defendant stated, "All right, I'm going to check. If anything happens, I'm going to come back and fucking shoot you." Defendant claims that "[t]he evidence was insufficient that [this] statement was an attempt to dissuade the victim from reporting a crime and not a retaliatory threat based on what he believed to . . . have already been done."
As previously discussed, " 'an appellate court deciding whether sufficient evidence supports a verdict must determine whether the record contains substantial evidence—which [our Supreme Court] repeatedly ha[s] described as evidence that is reasonable, credible, and of solid value—from which a reasonable jury could find the accused guilty beyond a reasonable doubt.' [Citation.] We presume in support of the judgment 'the existence of every fact the trier could reasonably deduce from the evidence.' [Citation.]" (Vines, supra, 51 Cal.4th at p. 869.)
The crime of attempting to dissuade a victim from reporting a crime by force or threat requires proof that the defendant intended to dissuade the victim from reporting the crime. (People v. Lyons (1991) 235 Cal.App.3d 1456 (Lyons).) Here, defendant contends that there was insufficient evidence he harbored such intent. Noting that the statement in question "was made after the sirens had sounded and he thought [Jessica R.] had already contacted the police," he asserts that "it appears that the threat was made in retaliation for what could be perceived as past conduct rather than a threat to prevent future conduct." While it is true that the jury reasonably could have found that the threat was made in retaliation for past conduct, it does not follow that defendant's conviction for attempting to dissuade a victim by force or threat must be reversed. There is ample evidence from which the jury also reasonably could have found that the threat was made to dissuade Jessica R. from attempting to report the crime while defendant went to "check" outside. At that point, defendant did not know whether the sirens meant that the police were on their way to Sally's or some other location; thus, he went to "check." The jury reasonably could have interpreted his statement to mean that he would shoot Jessica R. if she attempted to contact law enforcement while he was gone. Accordingly, there is sufficient evidence to support defendant's conviction for attempting to dissuade a victim by force or threat. That there is sufficient evidence to support a contrary conclusion is of no consequence. (People v. Earp (1999) 20 Cal.4th 826, 887-888 ["Where, as here, the jury's findings rest to some degree upon circumstantial evidence, we must decide whether the circumstances reasonably justify those findings, 'but our opinion that the circumstances also might reasonably be reconciled with a contrary finding' does not render the evidence insubstantial. [Citation.]"].)
Defendant was convicted of dissuading a victim by force or threat in violation of section 136.1, subdivision (c)(1). Section 136.1, subdivision (b) provides in pertinent part: "[E]very person who attempts to prevent or dissuade another person who has been the victim of a crime or who is witness to a crime from doing any of the following is guilty of a public offense and shall be punished by imprisonment in a county jail for not more than one year or in the state prison: [¶] (1) Making any report of that victimization to any peace officer or state or local law enforcement officer or probation or parole or correctional officer or prosecuting agency or to any judge." Subdivision (c) of that second further provides: "Every person doing any of the acts described in subdivision (a) or (b) knowingly and maliciously under any one or more of the following circumstances, is guilty of a felony punishable by imprisonment in the state prison for two, three, or four years under any of the following circumstances: [¶] (1) Where the act is accompanied by force or by an express or implied threat of force or violence, upon a witness or victim or any third person or the property of any victim, witness, or any third person." --------
III
Any Error in Failing to Expressly Instruct the Jury That Defendant Must Have
"Intended to" Dissuade the Victim Was Harmless
Assuming we conclude, as we have, that there is sufficient evidence to support defendant's conviction for attempting to dissuade a victim by force or threat, defendant contends his conviction must nevertheless be reversed because the trial court failed to expressly instruct the jury that the People must prove that defendant intended to prevent or dissuade Jessica R. as provided in CALCRIM No. 2622. As we shall explain, any error was harmless.
The jury was instructed in the language of CALCRIM No. 2622 in relevant part as follows: "To prove the defendant's guilty of this crime, dissuading a witness, the People must prove each of the following: One, the defendant knowingly and maliciously tried to prevent or discourage Jessica [R.] from making a report to police that she was a victim of an attempted robbery. Two, Jessica [R.] was the victim of a crime. And, three, the defendant knew that he was trying to prevent or discourage Jessica [R.] from making a report that she was the victim of a robbery."
CALCRIM No. 2622 states in pertinent part: "3. The defendant knew (he/she) was (trying to (prevent/ [or] discourage)/(preventing/ [or] discouraging)) __________ <insert name/description of person defendant allegedly sought to influence> from __________ <insert appropriate description from element 1> and intended to do so." (Underscoring added.)
Here, the trial court neglected to instruct the jury with the underscored portion of CALCRIM No. 2622, i.e. that defendant intended to prevent or discourage Jessica R. from making a report that she was the victim of a robbery.
We considered a similar issue in Lyons, supra, 235 Cal.App.3d 1456. There, the jury was instructed inter alia that "[e]very person who knowingly and maliciously attempts to prevent or dissuade any witness or victim from attending or giving testimony at any proceeding authorized by law; and who accompanies such act with force, or an express or implied threat of force or violence upon the witness or victim is guilty of the crime of dissuading a witness in violation of Penal Code section 136.1 [subdivision] (a)(c)(1)." (Id. at p. 1459, fn. 4.) "It was also told that the intent required for this offense is a general intent. 'In the crimes charged in Count Two of the information, namely, preventing or dissuading a witness or attempting to so prevent or dissuade from testifying accompanied by force or implied threat of force or violence upon the witness or victim, there must exist a union or joint operation of act or conduct and general criminal intent. To constitute general criminal intent, it is not necessary that there should exist an intent to violate the law. When a person intentionally does that which the law declares to be a crime, he is acting with general criminal intent even though he may not know that his act or conduct is unlawful.' (CALJIC No. 3.30 (1989 rev. updated).)" (Id. at pp. 1459-1460.) We agreed with the defendant that the trial court erred in instructing the jury that section 136.1 is a general intent crime, but concluded the error was harmless. (Lyons, at p. 1460-1463.) We explained that the instruction's use of the modifier " 'knowingly' " "makes clear that the relation of act to consequence must be known to the actor," and "[s]uch a knowing act is ordinarily a criterion of intention. [Citations.] More to the point, a specific intention is also defined by the proscription of an 'attempt[] to . . . prevent or dissuade any witness . . . from . . . giving testimony,' the specific offense with which the defendant was charged and convicted. An attempt connotes the intent to accomplish its object, both in law (§ 21a) and in ordinary language." (Id. at p. 1461.) We found that the instructions given "unambiguously told the jury that for conviction defendant must have had the intent to prevent [the victim] from testifying." (Id. at p. 1462.) The same is true here.
In this case, the jury was instructed that the People were required to prove inter alia that "defendant knowingly and maliciously tried to prevent or discourage Jessica [R.] from making a report to police," and that "defendant knew that he was trying to prevent or discourage Jessica [R.] from making" such a report. (Italics added.) As in Lyons, the use of the modifier "knowingly" and the term "try" "unambiguously told the jury that for conviction defendant must have had the intent to" prevent or discourage Jessica R. from making a report to police. (Lyons, supra, 235 Cal.App.3d at p. 1462.) Thus, assuming for argument's sake that the trial court erred in failing to expressly instruct the jury that defendant intended to do so, the error was patently harmless. (See id. at p. 1463.)
IV
The Trial Court Properly Denied Defendant's Motion to Suppress
Defendant also challenges the trial court's denial of a motion to suppress evidence seized as a result of a "warrantless search." He is mistaken.
Prior to trial, defense counsel filed a motion to suppress pursuant to section 1538.5, arguing that police officers lacked "legal cause" to detain, search, and arrest him absent a warrant, and that any evidence seized as a result of this conduct should have been excluded. At the hearing on the motion to suppress, Officer Harrison testified that she responded to a robbery call at Sally's on the morning in the question. When she arrived, she observed a man, later identified as defendant, "walking out of the area where Sally's Beauty store was." She did not see anyone else in the area. She reported by radio that there was a Black male near the check cashing store who should be stopped and spoken to. She saw three uniformed officers at the south corner of the strip mall, near the check cashing store. As defendant approached the check cashing store, he took off running. The three officers chased after him and were soon joined in their pursuit by Officer Arietta and his partner.
Officer Arrieta testified that he and his partner Officer Pavey also responded to the report of a robbery at Sally's on the morning in question. When they arrived at the mall, they parked, intending to take a perimeter position. When they heard Harrison's broadcast over the radio that there was a possible suspect, a Black male, near the check cashing store, they looked over and saw a Black male, later identified as defendant, walking toward them with his hands in or near his waistband. Arrieta did not see any other person in the area at that time.
Arrieta and Pavey got out of the patrol car, intending to detain defendant and investigate whether he was involved in the robbery. Pavey got out first and told defendant to stop, but defendant took off running. By the time Arrieta got out, defendant was already running behind the patrol car. Arrieta had his gun drawn when he got out of the car because the report had been of an "armed robbery." Arrieta believed Pavey had his gun drawn when he got out of the car, but his view was blocked. Arrieta pointed his gun at defendant and ordered him to stop, but defendant continued running. Arrieta holstered his gun when he realized defendant was not going to stop and chased after him. When Arrieta got within 10 or 15 feet of defendant, he "Tased" him. Defendant fell forward, and Pavey tackled him. Defendant continued to struggle, and Arrieta "contact Tased" him twice more. When defendant rolled over, there was a handgun on the ground within inches from his waistband.
At the hearing on defendant's motion to suppress, defense counsel argued that once Arrieta drew his weapon and pointed it at defendant, the attempted detention ripened into an arrest for which probable cause was lacking. The prosecutor disputed defense counsel's assertion that Arrieta's use of his weapon alone constituted a detention, let alone an arrest, because defendant failed to submit to Arrieta's authority. He further argued that based on the totality of the circumstances, which included "an armed robbery by a man that has just happened at this location," it was "incumbent upon the police to do what they did."
The trial court denied the motion, concluding that the facts adduced at the hearing justified defendant's detention and arrest. In particular, the trial court relied on the following facts: Officer Harrison saw defendant close to Sally's; after hearing Harrison's radio broadcast, Arrieta saw defendant walking toward his position; there was no other person in the area; by the time Arrieta got out of the patrol car with his gun drawn defendant had taken off running; Arrieta could not see defendant's hands, which were in or around his waistband; defendant failed to heed Arrieta's commands to "stop."
" 'The standards for appellate review of the trial court's determination on a motion to suppress pursuant to section 1538.5 are well settled. The trial court's factual determinations are reviewed under the deferential substantial evidence standard; its determination of the applicable rule of law is scrutinized under the standard of independent review. [Citation.] We independently assess as a question of law whether, under such facts as found by the trial court, the challenged action by the police was constitutional. [Citation.]' " (People v. Lindsey (2007) 148 Cal.App.4th 1390, 1395.)
The Fourth Amendment to the federal Constitution, made applicable to the states through the Fourteenth Amendment, guarantees the right to be secure against unreasonable seizures. (People v. Celis (2004) 33 Cal.4th 667, 673 (Celis).) Defendant contends that Arrieta's and Pavey's use of their guns when they got out of their patrol car constituted an arrest requiring probable cause.
"A person is seized by the police and thus entitled to challenge the government's action under the Fourth Amendment when the officer, ' "by means of physical force or show of authority," ' terminates or restrains his [or her] freedom of movement, [citation] . . . ." (Brendlin v. California (2007) 551 U.S. 249, 254 [168 L.Ed.2d 132, 138].) "A police officer may make a seizure by a show of authority and without the use of physical force, but there is no seizure without actual submission; otherwise, there is at most an attempted seizure, so far as the Fourth Amendment is concerned." (Ibid., citing California v. Hodari D. (1991) 499 U.S. 621, 626, fn. 2 [113 L.Ed.2d 690, 697, fn. 2] (Hodari D.).)
In Hodari D., the issue was whether the defendant, a juvenile, was seized within the meaning of the Fourth Amendment. (Hodari D., supra, 499 U.S. at p. 623.) The defendant was in a group of four or five youths huddled around a car in a high-crime area of Oakland when police officers approached the group in an unmarked car. (Id. at pp. 622-623.) The youths apparently panicked, fled, and were chased by the officers. (Id. at p. 623.) The defendant did not see an officer until the "officer was almost upon him, whereupon he tossed away what appeared to be a small rock. A moment later, [the officer] tackled [the defendant], handcuffed him, and radioed for assistance." (Ibid.) The Supreme Court stated that "[t]he narrow question before us is whether, with respect to a show of authority as with respect to application of physical force, a seizure occurs even though the subject does not yield. We hold that it does not." (Id. at p. 626.) The court explained that "assuming that [the officer's] pursuit in the present case constituted a 'show of authority' enjoining [the defendant] to halt, since [the defendant] did not comply with that injunction he was not seized until he was tackled. The cocaine abandoned while he was running was in this case not the fruit of a seizure, and his motion to exclude evidence of it was properly denied." (Id. at p. 629.)
Here, defendant did not yield after Arrieta and perhaps Pavey pointed their guns at defendant and instructed him to stop. Thus, as in Hodari D., defendant was not seized within the meaning of the Fourth Amendment until he was later tackled and taken into custody by Pavey and Arrieta. Assuming for purposes of this appeal that defendant's detention at that point constituted an arrest, the next question is whether the arrest was supported by probable cause. (Celis, supra, 33 Cal.4th at p. 673.) We conclude that it was.
When the seizure of a person amounts to an arrest, it must be supported by an arrest warrant or probable cause. (Celis, supra, 33 Cal.4th at p. 673.) Here, there was no arrest warrant, thus, the arrest was lawful only if it was supported by probable cause. "Probable cause exists when the facts known to the arresting officer would persuade someone of 'reasonable caution' that the person to be arrested has committed a crime." (Ibid.) The evidence adduced at the hearing on the motion to suppress showed that Arrieta and Pavey were informed that there had been an armed robbery at Sally's, and shortly thereafter, received a report of a Black male walking in the area of the store. Immediately after receiving that report, they observed defendant, a Black male, walking a few stores down from Sally's. He was the only person in the area. When Arrieta and Pavey attempted to detain him to determine whether he was involved in the robbery, defendant took off running. Arrieta and Pavey chased after him and eventually brought him to the ground. When defendant rolled over, there was a gun underneath his body. These facts would persuade a person of "reasonable caution" that defendant had robbed or attempted to rob Sally's. The trial court properly denied defendant's motion to suppress.
V
Cumulative Error
Finally, defendant contends that the cumulate effect of the trial court's alleged errors combined to deprive him of due process and a fair trial. " '[A] series of trial errors, though independently harmless, may in some circumstances rise by accretion to the level of reversible and prejudicial error.' " (People v. Cunningham (2001) 25 Cal.4th 926, 1009.)
We found that there was insufficient evidence to support defendant's conviction for kidnapping for robbery and reversed that conviction. We also concluded that even assuming the trial court erred in failing to expressly instruct the jury that defendant "intended" to prevent or discourage Jessica R. from reporting the attempted robbery to law enforcement in connection with the attempting to dissuade a witness offense, any such error was patently harmless. Viewed cumulatively, these "errors" did not influence the fairness of defendant's trial.
DISPOSITION
Defendant's conviction on count 1 (kidnapping for robbery) is reversed. This matter is remanded to the trial court for resentencing. In all other respects, the judgment is affirmed. Following resentencing, the trial court is directed to prepare an amended abstract of judgment and to forward a certified copy of the amended abstract to the Department of Corrections and Rehabilitation.
/s/_________
Blease, Acting P. J. We concur: /s/_________
Mauro, J. /s/_________
Duarte, J.