Opinion
NOT TO BE PUBLISHED
Solano County Super. Ct. No. 193055
Jones, P.J.
Ronald Kemoni Peterson appeals from a judgment entered after a jury convicted him of second degree robbery (Pen. Code, § 211, 212.5, subd. (c)), kidnapping to commit robbery (§ 209, subd. (b)), assault with a semi-automatic firearm (§ 245, subd. (b)), and false imprisonment (§ 236.) He contends his conviction must be reversed because (1) the kidnapping for robbery count is not supported by substantial evidence, (2) his identification at trial was tainted by unduly suggestive photographic identifications, and (3) the trial court erred when sentencing him. We agree appellant was sentenced incorrectly and will remand for resentencing. In all other respects we will affirm.
Unless otherwise indicated, all further section references will be to the Penal Code.
I. FACTUAL AND PROCEDURAL BACKGROUND
On June 1, 2007, William Burrell entered the Check Into Cash store in Benica in order to apply for a loan. Burrell sat at a small table in the front of the store and began filling out the necessary paperwork. A few minutes later, appellant entered the store. He sat at Burrell’s table and also began to fill out the paperwork for a loan.
Desiree DelReal and Amy Rourick were working at the store that day although Rourick was away on her lunch break. Burrell and appellant worked on their loan applications and both asked DelReal for help filling out the required forms.
About 20 minutes after appellant arrived, Burrell pulled out his cell phone to obtain some information he needed for his loan. Suddenly appellant stood up, knocked the phone from Burrell’s hand, and punched him in the face. Burrell picked up a chair to protect himself, but appellant produced a gun, racked a round into the chamber, and pointed it at Burrell. Burrell had been in the armed forces for about 11 years and he was familiar with handguns. He recognized appellant’s gun as a Glock although he was incorrect about the precise model.
Appellant ordered Burrell to the back of the store and made him lie face down in such a way that his view to the front was obstructed by a counter. Although the precise distance Burrell was moved was unclear, police later estimated it to be about 24 feet. Burrell heard appellant order the clerk to put money in a bag and to give him the surveillance tape. Appellant then made the clerk lie down on the floor opposite to Burrell.
At that point, Rourick returned from her lunch break. She saw a chair had been knocked over and a cell phone on the ground and quickly sensed that something was wrong. A large man came toward Rourick and ordered her into the store. Realizing a robbery was occurring, Rourick fled the store.
Based on these facts, an information was filed charging appellant with four counts: (1) second degree robbery against DelReal, (2) kidnapping to commit robbery against Burrell, (3) assault with a semiautomatic firearm against Burrell, and (4) false imprisonment against Burrell. As is relevant here, counts one, two, and three alleged appellant personally used a firearm within the meaning of section 12022.5, subdivision (a), while counts one and two alleged appellant personally used a firearm within the meaning of section 12022.53, subdivision (b).
The case proceeded to trial where the prosecution presented the evidence we have set forth above. The prosecution then buttressed its case with evidence from appellant’s girlfriend, Davonna Ballard, who testified that the robbery was an inside job.
Ballard worked at the Check Into Cash store in Vallejo, having gotten her job through her friend Desiree DelReal. Appellant asked Ballard about her job and about how much money was kept at the store. Ballard also was present when appellant spoke with DelReal on the telephone about how much money was kept at her store and what type of security was in place.
On the day of the robbery, appellant called Ballard and again asked her how much money was kept at the store. Ballard worked at the Vallejo store, and sometime during her shift, she heard the Benicia store had been robbed. When Ballard met appellant after work, he told her he had done it. Appellant described sitting at a table with an African American man, pushing him down, and taking the money.
At trial, Ballard identified loan application forms that were found at the store as containing appellant’s handwriting.
The prosecutor also presented testimony from Rourick who identified appellant in a photo line-up about two months after the robbery.
Finally, the prosecution presented evidence about phone calls appellant made to Ballard while he was incarcerated awaiting trial. In those calls, appellant used code words to communicate tasks that he wanted accomplished. In one call, appellant said he wanted someone to find out where Rourick lived so she could be scared from testifying at trial. As appellant phrased it, someone should “spook the fuck out of [her].”
In another call, appellant castigates DelReal saying “she’s the one who handed over that piece of paper anyway and told them, here, that’s what he was writing on. Ain’t that stupid?”
In a different call, appellant urges Ballard to take responsibility for the Glock that the police found during a search of appellant’s residence.
In still other calls, appellant hatches a plot to have DelReal testify that someone else who looks like him is the real robber.
Appellant defended the charges with testimony from a professor in psychology, Dr. Geoffrey Loftus, who described the various factors that can affect the accuracy of memory.
The jurors considering this evidence convicted appellant as charged and found the use allegations to be true. Subsequently, the court sentenced appellant to a term of 33 years 4 months, plus life in prison.
This appeal followed.
II. DISCUSSION
A. Sufficiency of the Evidence
Appellant contends the evidence presented at trial was insufficient to support his conviction of kidnapping for purposes of robbery. (§ 209.)
The standard of review we apply is familiar. 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.” (People v. Johnson (1980) 26 Cal.3d 557, 578.)
As is relevant here, section 209 states:
“(b)(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.”
Many cases have grappled with the asportation element of aggravated kidnapping and what constitutes incidental movement of the victim. (Cf. People v. Aguilar (2004) 120 Cal.App.4th 1044, 1048-1050 and People v. Shadden (2001) 93 Cal.App.4th 164, 168-170, with People v. Hoard (2002) 103 Cal.App.4th 599, 606-607.) In an attempt to reduce those conflicts, our Supreme Court recently clarified the controlling principles in People v. Dominguez (2006) 39 Cal.4th 1141 at pages 1152-1153 as follows: “The essence of aggravated kidnapping is the increase in the risk of harm to the victim caused by the forced movement. (Citation.) We have articulated various circumstances the jury should consider, such as 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. (Citation.)... [¶] “Measured distance... is a relevant factor, but one that must be considered in context, including the nature of the crime and its environment. In some cases a shorter distance may suffice in the presence of other factors, while in others a longer distance, in the absence of other circumstances, may be found insufficient. For example, moving robbery victims between six and 30 feet within their home or apartment [citation] or 15 feet from the teller area of a bank to its vault (People v. Washington (2005) 127 Cal.App.4th 290, 299, ) may be viewed as merely incidental to the commission of the robbery and thus insufficient to satisfy the asportation requirement of aggravated kidnapping. Yet, dragging a store clerk nine feet from the front counter of a store to a small back room for the purpose of raping her (see People v. Shadden[, supra, 93 Cal.App.4th at p. 167]) or forcibly moving a robbery victim 40 feet within a parking lot into a car (see People v. Jones (1999) 75 Cal.App.4th 616, 629) might, under the circumstances, substantially increase the risk of harm to the victim and thus satisfy the asportation requirement. These examples are illustrative only; each case must be considered in the context of the totality of its circumstances. [¶] “Robberies and sex crimes, the necessary predicates for an aggravated kidnapping (see § 209), can of course be committed in a variety of ways. To catalog all the myriad and various possible aspects of such crimes would be impossible. But beginning with the template established in [People v. Daniels (1969) 71 Cal.2d 1119, 1139], prohibiting increased liability for aggravated kidnapping for what are essentially brief and trivial movements in ‘standstill’ robberies or for movements ‘merely incidental’ to commission of the offense, through [People v. Rayford (1994) 9 Cal.4th 1, ] the applicable test under former section 208(d) is clear: for 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. Application of these factors in any given case will necessarily depend on the particular facts and context of the case.”
Applying these principles we conclude the evidence here was more than sufficient. Appellant pointed a gun at Burrell, ordered him to move from the front of the store to the back, and then forced him to lie face down on the floor near a counter where Burrell’s view to the front was obstructed. The distance moved, as much as 24 feet, was not vast, but it was similar to the amount that has been found sufficient in other cases. (Cf. People v. Dominguez, supra, 39 Cal.4th at p. 1151 [victim moved 25 feet].) The movement was not incidental to the target crime of robbery. Appellant planned to rob the Check Into Cash store. The victim of the kidnapping, Burrell, was an innocent bystander who simply had the misfortune to be present when appellant carried out his plan. (Cf. People v. James (2007) 148 Cal.App.4th 446, 457, [asportation element satisfied because “the robbery of a business employee does not include the risk that other individuals will be moved, at gunpoint...”].) The movement to the back of the store obviously decreased the likelihood of detection and increased the risk of danger if Burrell had attempted to escape. (People v. Dominguez, supra, 39 Cal.4th at p. 1152.) We conclude Burrell’s kidnapping was accomplished by movement beyond that merely incidental to the commission of and necessarily present in the robbery. The conviction is supported by substantial evidence.
It is irrelevant that the victim of the kidnapping, Burrell, was not also the victim of the robbery. (See People v. Laursen (1972) 8 Cal.3d 192, 200, fn. 7.)
In arguing the trial court erred, appellant relies primarily on two cases: People v. Washington (2005)127 Cal.App.4th 290, and People v. Hoard, supra, 103 Cal.App.4th 599. Neither is controlling here.
In Washington, the court ruled the movement of bank employees to a vault out of public view did not satisfy the asportation requirement because “there was no excess or gratuitous movement of the victims over and above that necessary to obtain the money in the vault.” (People v. Washington, supra, 127 Cal.App.4th at p. 299.) Here, by contrast, Burrell’s movement from the front of the store to the back was not necessary in order to obtain money from the Check Into Cash store. Burrell was an innocent store patron who was unrelated to the target robbery. In contrast to Washington, Burrell’s movement clearly was “excess and gratuitous.”
In Hoard the defendant committed robbery by forcing two jewelry store employees to move about 50 feet to an office at the back of the store. (People v. Hoard, supra, 103 Cal.App.4th at p. 607.) The Hoard court ruled that evidence insufficient to support an aggravated kidnapping charge: “[c]onfining the women in the back office gave defendant free access to the jewelry and allowed him to conceal the robbery from any entering customers who might have thwarted him. Defendant’s movement of the two women served only to facilitate the crime with no other apparent purpose.” (Ibid.) Here, by contrast, Burrell was not a store employee and his movement did not facilitate the appellant’s target crime of robbery. Rather it served purposes specifically identified in Dominguez as sufficient to support a finding of increased danger: it removed Burrell from public view, decreased the odds that the robbery would be detected, and increased the risk of harm to Burrell as a witness to a robbery and an assault victim who might have attempted to escape. (People v. Dominguez, supra, 39 Cal.4th at p. 1152.) Hoard is not controlling here.
We conclude the evidence was sufficient.
B. Whether the In Court Identification Was Tainted
After the robbery, Burrell described the perpetrator as a young, heavyset man of apparent mixed race; either African American/Asian or African American/Mexican.
About two months after the robbery, police detectives showed Burrell a photo lineup that included appellant. Burrell identified two photographs, neither of which was appellant, saying they looked similar to the robber. At trial, Burrell clarified that he meant the persons in the photographs he identified had builds and skin tones that were similar to the robber. Appellant’s skin tone was lighter than was depicted in the photograph that was used in the photographic line-up.
When Rourick viewed the same photo lineup and correctly identified appellant, she commented that appellant’s skin tone was lighter than it appeared in the photograph in the lineup. After hearing this, the detective prepared a new lineup using a photograph of appellant in which his skin appeared lighter than in the photograph that was used previously. The detective then showed Burrell the new photographic lineup about 11 days later. Burrell identified appellant as the robber.
Before trial, appellant asked the court to exclude Burrell’s identification arguing the lineup procedures had been unduly suggestive. The court denied the motion ruling any possible problems with the lineups went more to the weight of Burrell’s identification rather than to its admissibility.
At trial, Burrell then identified appellant as the man who had robbed the Check Into Cash store. Burrell said he was “100 percent confident” that appellant was the perpetrator.
Appellant now contends his conviction must be reversed because Burrell’s in-court identification was tainted by the unduly suggestive photographic identifications.
An appellate court will set aside a conviction based on eyewitness identification at trial following a pretrial identification by photograph only if the pretrial procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. (Simmons v. United States (1968) 390 U.S. 377, 384.) An identification procedure is considered suggestive if it caused the defendant to “stand out” from the others in such a way as to suggest that the witness should select him. (People v. Cook (2007) 40 Cal.4th 1334, 1355.) On appeal we independently determine whether the pretrial identification procedures were unduly suggestive. (People v. Kennedy (2005) 36 Cal.4th 595, 608-609, disapproved on other grounds in People v. Williams (2010) 49 Cal.4th 405, 459.)
Applying these principles, we conclude there was no error. We have reviewed the two photographic lineups in question. The photographs in both show what appear to be men of varying and frequently undetermined ethnicity. The men are similar in age, appearance, and physical characteristics. No photograph in either line-up stands out in such a way as to suggest that a witness should select the person depicted. Based on this record, we do not hesitate to conclude the line-up was not unduly suggestive. Because the lineup was not unduly suggestive, Burrell’s in court identification was not tainted.
Appellant argues that both lineups were unduly suggestive. He challenges the first arguing his picture stood out because he was the only one who was smiling and his face was tilted upward. The differences appellant cites are subtle and neither caused appellant to stand out. (People v. Cook, supra, 40 Cal.4th at p. 1355.) Indeed, Burrell did not select appellant from that lineup.
As for the second lineup, appellant argues it was suggestive because his photograph was lighter and brighter than the others, he was depicted close up, his photograph was in the center of the spread, he was in both lineups, and the second lineup occurred only 11 days after the first. None of these factors, either alone or in combination, caused appellant to stand out in an impermissible way. Appellant’s picture was slightly lighter and somewhat larger than the others. However the differences are minor and did not cause appellant to stand out. (Cf. People v. Johnson (1992) 3 Cal.4th 1183, 1217, [“differences in background color and image size among the various photographs [did not] render the lineup impermissibly suggestive....”]). The placement of appellant’s picture in the center was not suggestive. “[N]o matter where in the array a defendant’s photograph is placed, he can argue that its position is suggestive.” (Ibid.) While appellant was in both lineups, many courts have found lineups to be not suggestive even when multiple lineups are used. (See e.g. ibid; see also People v. Ybarra (2008) 166 Cal.App.4th 1069, 1081-1082.) The fact that the second lineup occurred close in time to the first can be problematic “if the same photograph[s] were reused or if the lineups followed each other quickly enough for the witness to retain a distinct memory of the prior lineup.” (People v. Yeoman (2003) 31 Cal.4th 93, 124.) Here different photographs of appellant were used and the 11-day period between the lineups made it unlikely Burrell would have had a distinct memory of the first lineup.
We conclude the lineups were not impermissibly suggestive.
C. Sentencing
Count three of the information charged appellant with assault with a semiautomatic firearm. (§ 245, subd. (b).) The information also alleged appellant had personally used a weapon when committing that offense within the meaning of section 12022.5, subdivision (a)(1). The jurors found appellant guilty of that offense and found the enhancement to be true.
At sentencing, the court sentenced appellant to the upper term of nine years on count three, but then sentenced him to an additional 10-year term under section 12022.53, subdivision (b). Appellant now contends the trial court erred because it sentenced him on an enhancement that was neither alleged nor found by the jurors to be true. The People concede the error and we agree. We will remand for resentencing.
III. DISPOSITION
The case is remanded to the trial court for resentencing. In all other respects, the judgment is affirmed.
We concur: Simons, J.Needham, J.