Opinion
G058333
04-12-2021
THE PEOPLE, Plaintiff and Respondent, v. ALATINI MOLI, Defendant and Appellant.
Nancy J. King, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Jennifer B. Truong, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 17NF2532) OPINION Appeal from a judgment of the Superior Court of Orange County, Cheri T. Pham, Judge. Affirmed. Nancy J. King, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Jennifer B. Truong, Deputy Attorneys General, for Plaintiff and Respondent.
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A jury convicted Alatini Moli of first degree robbery (count 1; Pen. Code, §§ 211, 212.5, subd. (a)), first degree burglary (count 2; §§ 459, 460, subd. (a)), and kidnapping during the commission of a robbery (count 4; § 209, subd. (b)). The jury also found true an enhancement allegation that a nonaccomplice was present during the burglary. (§ 667.5, subd. (c)(21).) Observing that Moli had committed two previous armed robberies, including one for which he had recently been released from court supervision after turning 18 years old, the trial court sentenced Moli to the upper term of six years in prison on the robbery count. The court stayed the sentence on count 2 pursuant to section 654, and imposed the life term with the possibility of parole prescribed for count 4, to be served consecutive to his determinate term.
All further statutory references are to this code.
Before deliberations began, the trial court dismissed on the prosecutor's motion a separate count for simple kidnapping (count 3; § 207, subd. (a)). The court instructed the jury on simple kidnapping as a potential "lesser crime of Kidnapping for Robbery charged in Count 4."
On appeal, Moli challenges the sufficiency of the evidence to support his kidnapping conviction. He ignores the fact that his violent actions—including slamming his elderly victim to the floor, dragging him from his front door back into the family room, punching him in the face several times, and then moving him deeper into the house before throwing him into a closet—"went beyond," as the trial court explained, what might otherwise be incidental movement of a victim during a robbery. Instead, the jury could reasonably conclude that such movement of the victim caused the crime to rise to the level of aggravated kidnapping. The evidence supports the jury's verdict; we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
In September 2017, on returning home from a veterinary appointment for his dog, 69-year-old Wolfgang S. noticed that the doors to his linen closet were open, which struck him as "odd." Suddenly, Moli attacked him from behind and Wolfgang fell to the floor in the hallway. Wolfgang feigned a heart attack, hoping that Moli and another burglar—later identified as Moli's sister—would notice he was "in serious trouble and leave."
But no such luck. Instead, Moli grabbed Wolfgang, rolled him onto his stomach, and bound his hands behind his back with a cell phone charger cord. Moli then took Wolfgang's wedding ring, as well as his watch, wallet, and cell phone. From his location by the linen closet, Wolfgang could hear Moli's sister "rummaging" around in the master bedroom. Moli demanded the combination to a safe in the master bedroom closet, which Wolfgang provided. Moli, however, was unable to open the safe, as he apparently neglected to hit the "enter" button after inputting the numbers. Moli threatened Wolfgang, telling him he had a gun, demanded to know whether Wolfgang had a weapon (he did not), and spoke of driving Wolfgang to an automated teller machine to withdraw money.
After Moli returned to the master bedroom, Wolfgang managed to escape his restraints and run "about 35, 40 feet" through different rooms in the house and "around [interior] corners" to get to the front door. Wolfgang opened the door and "started yelling 'Help' right about the time [Moli, in pursuit] reached me." Wolfgang did not make it "physically . . . outside of" his house; instead, Moli grabbed him, slammed the door shut, and threw him to the ground, where Wolfgang hit his head "pretty hard" on the tile floor.
Moli dragged Wolfgang about "15 feet" from the entryway into the family room, where he held Wolfgang "on the floor there and then he started punching [him] in the face." Wolfgang testified Moli hit him "three or four times" on the side of his face. Wolfgang felt "[p]retty violated" but still "continued to have some discussions," pleading with Moli to leave and asking him, "Why are you doing this? I'm not rich." According to Wolfgang, Moli responded that he was entitled to Wolfgang's possessions because he (Moli) had grown up without them. In any event, Moli had Wolfgang stand up and then forced him to walk further back into the house, finally confining him in a closet in the master bedroom.
Wolfgang remained in the closet "[m]aybe two minutes" before he was able to determine "it was quiet." He then opened the closet door and, when he "still didn't hear anything," he decided to "get up and get out." He left the closet and called 911. In addition to the items taken from Wolfgang's person, he testified that Moli and his sister fled with several other watches, a tablet, and "a bunch of my wife's jewelry."
DISCUSSION
Moli argues his kidnapping conviction must be reversed for lack of evidence. He contends "the evidence in this case demonstrated the movement in the house was [only] incidental to the crime of robbery and did not elevate the risk of harm." (Capitalization and formatting adjusted.) Given that we must view the evidence in the light most favorable to the jury's verdict, we are not persuaded.
Our review is limited to determining whether substantial evidence supports the judgment. Substantial evidence consists of evidence that is reasonable, credible, and of solid value. (People v. Elliot (2005) 37 Cal.4th 453, 466.) We must make all reasonable inferences in support of the judgment. (People v. Crittenden (1994) 9 Cal.4th 83, 139 (Crittenden).)
It is the trier of fact's exclusive province to weigh witness credibility, resolve evidentiary conflicts, and determine what the evidence shows. (People v. Sanchez (2003) 113 Cal.App.4th 325, 330 (Sanchez).) We must therefore '"presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence."' (People v. Houston (2012) 54 Cal.4th 1186, 1215.) Under this standard, the test is whether substantial evidence supports the conclusion of the trier of fact, not whether we are persuaded the defendant is guilty beyond a reasonable doubt. (Crittenden, supra, 9 Cal.4th at p. 139; People v. Johnson (1980) 26 Cal.3d 557, 576.) Consequently, a defendant attacking the sufficiency of the evidence "bears an enormous burden." (Sanchez, at p. 330.)
Kidnapping for robbery, a form of aggravated kidnapping, requires "movement of the victim . . . beyond that merely incidental to the commission of [the robbery]," and the movement must "increase[] the risk of harm to the victim over and above that necessarily present in [the robbery]." (§ 209, subd. (b)(2).) The two prongs of aggravated kidnapping "are not distinct, but interrelated, because a trier of fact cannot consider the significance of the victim's changed environment without also considering whether that change resulted in an increase in the risk of harm to the victim." (People v. Martinez (1999) 20 Cal.4th 225, 236 (Martinez), overruled on another ground in People v. Fontenot (2019) 8 Cal.5th 57, 70.) Each case turns on its own facts, which "must be considered in the context of the totality of its circumstances." (People v. Dominguez (2006) 39 Cal.4th 1141, 1152.)
Contrary to Moli's suggestion, in assessing the "scope and nature" of the defendant's movement of a victim, "there is no rigid 'indoor-outdoor' rule" that renders transit within the same premises incidental as a matter of law. (People v. James (2007) 148 Cal.App.4th 446, 456 (James).) Nor is there a minimum distance the victim must be moved. (People v. Rayford (1994) 9 Cal.4th 1, 12 (Rayford).) Movement may be incidental to a crime if it is insubstantial and intended solely to facilitate the commission of the crime. (James, at p. 453.)
For example, moving two bank employees from a public area to the vault they were ordered to open was incidental to robbing the bank. (People v. Washington (2005) 127 Cal.App.4th 290, 299-301.) Similarly, the Supreme Court has provided this illustration of incidental movement: "'A enters a liquor store and orders the clerk, who is stocking the shelves, to go to the cash register and hand over the money. The clerk moves ten feet to the cash register and turns over the money to A."' (People v. Daniels (1969) 71 Cal.2d 1119, 1134, fn. 8 (Daniels).)
Determining whether there has been an increase in risk of harm to constitute kidnapping for robbery, rather than only 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. [Citations.] The fact that these dangers do not in fact materialize does not, of course, mean that the risk of harm was not increased." (Rayford, supra, 9 Cal.4th at pp. 13-14.) Consistent with legislative amendments in 1997, the movement of the victim need not "substantially" increase the risk of harm to the victim. (Martinez, supra, 20 Cal.4th at p. 232 & fn. 4, citing Stats.1997, ch. 817, § 2.)
People v. Vines (2011) 51 Cal.4th 830 (Vines) provides an example of asportation which increased the risk of harm to the victim that was not merely incidental to robbery. There, during the commission of a robbery, the defendant moved four fast food workers between 80 and 200 feet each, marching all of them down an interior stairwell out of public view and locking them in the freezer in which the temperature was approximately 20 degrees. (Id. at p. 870.)
Vines has been partially overruled, but on an issue—offers of proof concerning penalty phase cross-examination—that has no bearing here. (People v. Hardy (2018) 5 Cal.5th 56, 104.)
The Supreme Court explained its reasoning: "As in Daniels, defendant's forcible movement of the victims was limited to movement inside [the restaurant] [citation], but unlike in Daniels, the movement here took [the manager]—and ultimately the other victims—from the front of the store, down a hidden stairway, and into a locked freezer. Under these circumstances, we cannot say the 'scope and nature' of this movement was 'merely incidental' to the commission of the robbery. Additionally, the movement subjected the victims to a substantially increased risk of harm because of the low temperature in the freezer, the decreased likelihood of detection, and the danger inherent in the victims' foreseeable attempts to escape such an environment." Consequently, the court upheld the aggravated kidnapping conviction. (Vines, supra, 51 Cal.4th at pp. 870-871.)
A similar analysis applies here. Moli's actions increased the risk of harm to Wolfgang. Moli punched him in the face three or four times after dragging him away from the front door into the family room. Moli had already taken Wolfgang's personal items and there was no evidence that this movement or the punches were directed at or incidental to locating and taking further property. Gratuitous criminal acts done to harm a victim warrant increased punishment precisely because they are not incidental to an underlying offense. (People v. Nguyen (1988) 204 Cal.App.3d 181, 190; People v. Bui (2011) 192 Cal.App.4th 1002, 1016.)
Moli then forced Wolfgang against his will still deeper into the house, farther back than the 35 to 40 feet he had run from the linen closet near the master bedroom; he ultimately forced Wolfgang into a closet in the bedroom. As in Vines, the "scope and nature" of these movements was not "merely incidental" to taking property. Instead, dragging and marching Wolfgang through the house gave Moli the opportunity to commit additional crimes (the assault), increased the risk of harm for Wolfgang (realized in the blows he suffered), and decreased the likelihood of detection of Moli's crimes. For all of these reasons, Moli's challenge to the sufficiency of the evidence fails.
During oral argument, Moli's counsel asserted Wolfgang was not forced into the closet, but rather that he entered voluntarily. Considering all the circumstances, we cannot agree with such an interpretation of these events. --------
DISPOSITION
The judgment is affirmed.
GOETHALS, J. WE CONCUR: MOORE, ACTING P. J. ARONSON, J.