Opinion
E066980
03-13-2018
THE PEOPLE, Plaintiff and Respondent, v. RAYNALDO SALCIDO, Defendant and Appellant.
Jason L. Jones, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina, Meagan Beale and Amanda E. Casillas, Deputy Attorneys General, for Plaintiff and Respondent.
ORDER MODIFYING OPINION AND DENYING PETITION FOR REHEARING NO CHANGE IN JUDGMENT
THE COURT:
The opinion herein, filed on March 13, 2018, is modified as follows:
1. On page 11, first sentence under heading 5., the word all is changed to initial.
2. On page 11, footnote 2 is deleted.
3. On page 11, immediately following the first sentence of the second paragraph under heading 5, add: The People support this interpretation.
4. On page 12, the first sentence of the first full paragraph is amended to read: We agree with the parties that Senate Bill No. 620 is retroactive to this case.
There is no change in the judgment.
Respondent's petition for rehearing is denied.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J. I concur: CODRINGTON
J. SLOUGH
J.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. BAF1500542) OPINION APPEAL from the Superior Court of Riverside County. W. Charles Morgan, Judge. Affirmed with directions. Jason L. Jones, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina, Meagan Beale and Amanda E. Casillas, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant is serving 185 years to life for robbing three separate fast food restaurants at gunpoint. During two of the robberies, he forced the employees to enter a walk-in refrigerator while he and his accomplice(s) left the premises. Defendant challenges the three convictions for aggravated kidnapping for robbery as unsupported by the evidence. He raises three other minor points in initial briefing, one of which the trial court has already corrected, and two of which the People concede. Because the evidence shows in each incident the robbery was completed before defendant ordered the victims into the refrigerator, we affirm defendant's convictions for aggravated kidnapping for robbery. In supplemental briefing, defendant additionally seeks remand so the trial court can exercise its discretion under the newly enacted Senate Bill No. 620 (2017-2018 Reg. Sess.) to consider striking one or more of the Penal Code section 12022.53 firearm enhancements. We remand so the trial court may exercise its discretion under section 12022.53, subdivision (h), and direct the trial court clerk to correct the abstract of judgment and the appropriate minute order, as explained post.
Section references are to the Penal Code except where otherwise indicated.
FACTS AND PROCEDURE
On July 6 and 7, 2015, defendant robbed three fast food restaurants at gunpoint—Santana's, Alberto's and Subway. In the robberies of the Alberto's and the Subway, defendant ordered the two employees into the refrigerator after he and one or two accomplices took money from the cash registers and items or money from the employees themselves. None of the employees was physically injured either during the robberies or while in the refrigerator. One of the Subway employees testified that, while she was scared throughout the robbery, she felt safer inside the refrigerator because it locked from the inside and she knew the robbers could not get in.
On May 19, 2016, the People filed a first amended information charging defendant with five counts of robbery (§ 211, counts 1, 2, 4, 6, 8), and four counts of aggravated kidnapping for robbery (§ 209, subds. (b)(1), counts 3, 5, 7, 9). As to each offense, the People alleged defendant personally used a firearm. (§§ 12022.53, subd. (b), 1192.7, subd. (c)(8).) The people alleged that defendant had two prior strike convictions (§§ 667, subds. (c) & (e)(2)(A), 1170.12, subd. (c)(2)(A)), two prior serious felony convictions (§ 667, subd. (a)), and five prior prison term convictions (§ 667.5, subd. (b).)
At the conclusion of testimony, the court on its own motion dismissed the kidnapping count pertaining to the Subway employee who felt safer in the refrigerator. On July 2, 2016, a jury found defendant guilty of all five robbery counts and the three remaining kidnapping counts. The jury found true each of the nine firearm enhancements. On September 9, 2016, the court found true the prior strike convictions and the prior serious felony convictions, but struck the prior prison term allegations.
On September 19, 2016, the trial court sentenced defendant to 185 years to life in state prison as follows: five consecutive terms of 25 years to life for two of the robbery convictions and the three kidnapping convictions, plus five consecutive 10-year terms for the firearm enhancements, plus two consecutive five-year terms for the prior serious felony convictions. The court stayed three of the robbery counts pursuant to section 654.
Defendant appealed.
DISCUSSION
1. Aggravated Kidnapping for Robbery
Defendant argues the evidence is insufficient to support his three convictions for aggravated kidnapping because, regarding both the Alberto's robbery and the Subway robbery, the movement of the victims was incidental to the robbery as a matter of law and did not increase the risk of harm to the victims. The People counter that the movement of the victims was not incidental to the robberies because in each case it occurred only after defendant had robbed the victims and the movement both increased the risk of physical harm and psychological trauma to the victims and decreased the possibility of detection and apprehension for defendant, and rescue for the victims.
Any person who kidnaps or carries away another person to commit robbery is guilty of aggravated kidnapping. (§ 209, subd. (b)(1).) Under section 209, aggravated kidnapping, requires "movement of the victim . . . 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." (§ 209, subd. (b)(2); In re Earley (1975) 14 Cal.3d 122, 128.) Defendant contends the movement of the fast food workers into the refrigerators was insufficient evidence of asportation because it was "merely incidental" to accomplishing the robberies and did not increase the risk of harm to them. As discussed post, we conclude that the convictions should be affirmed.
The California Supreme Court reviewed this issue comprehensively in People v. Vines (2011) 51 Cal.4th 830, 869-871, in which defendant moved the employees between 80 and 200 feet and locked them downstairs in a walk-in freezer to accomplish a robbery. Vines, at page 869, applied a deferential standard of review. The Vines court commented that the two elements of incidental movement and increased risk of harm "are not mutually exclusive but are interrelated." (Id. at p. 870, citing People v. Rayford (1994) 9 Cal.4th 1, 12.) With regard to the first prong, the jury considers the scope and nature of the movement—including the actual distance a victim is moved—but there is no minimum distance. (Vines, at pp. 870-871.) The second prong involves consideration of factors such as the decreased likelihood of detection, the danger inherent in the victims' foreseeable attempts to escape, and the attacker's enhanced opportunity to commit additional crimes. (Ibid.)
In Vines, the forcible movement of the victims was limited to movement inside the premises. A masked, armed robber herded a restaurant manager into the manager's office where a safe was located. After the manager opened the safe, defendant directed the manager to the back of the restaurant where the other workers were. Defendant ordered everyone to go down a stairway and into a locking freezer. (People v. Vines, supra, 51 Cal.4th at pp. 841-842.) The court held that the scope and nature of this movement was not " 'merely incidental' " to the commission of the robbery. Additionally, the victims suffered an 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." (Id. at p. 871.) The Supreme Court concluded sufficient evidence of asportation supported defendant's convictions for aggravated kidnapping.
A significant factor in many cases is whether the movement—whatever the distance—was necessary to obtain control of the property and facilitate the robbery.
In People v. Hoard (2002) 103 Cal.App.4th 599, the defendant entered a jewelry store and moved two female employees 50 feet at gunpoint to the back office, where he bound them with duct tape. After confining them to the back room, he robbed the store. In reversing the convictions for aggravated kidnapping, this court noted that "[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." (Id. at p. 607.) Accordingly, "[d]efendant's movement of the two women served only to facilitate the crime with no other apparent purpose." (Ibid.) The asportation of the victims was "merely incidental" to the robbery and did not increase the risk of harm.
In People v. Washington (2005) 127 Cal.App.4th 290, two defendants robbed a bank. While armed with a gun, one defendant jumped over the front counter and directed two tellers to empty the cash drawers. The second defendant, also armed, entered the bank manager's office and demanded money. The manager asked a teller to assist her in the vault. The manager and teller moved 14 or 15 feet into the vault. In holding that the movement of both victims was incidental to the robbery and did not increase the risk of harm, the court observed "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." (Id. at pp. 299-300.) Crossing thresholds within the business to obtain property cannot elevate robbery to aggravated kidnapping. (Ibid.) Given that the primary object of a robbery is to obtain money, the movement of employees to that area to facilitate that crime must be deemed incidental. (Id. at p. 303.)
The court in People v. Corcoran (2006) 143 Cal.App.4th 272, recognized some distinctions in its discussion of Hoard and Washington. In Washington, "movement was necessary to obtain the money and complete the robbery[. I]n 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.) In [Corcoran], the movement of the victims had nothing to do with facilitating taking cash from the bingo hall; defendant and his accomplice had aborted that aim, and their seclusion of the victims in the back office under threat of death was clearly 'excess and gratuitous.' " (Corcoran, at pp. 279-280.) Similarly, when compared with Hoard, "the movement of the victims did not serve to facilitate the forcible attempted taking of money from the bingo hall. Rather, it served other purposes squarely recognized by the Supreme Court . . . as supporting a finding of a substantial increase in danger: removing the victims from public view, decreasing the odds that the attempted robbery of cash from the bingo hall would be detected, increasing the risk of harm should any victim attempt to flee, and facilitating the robbers' escape. Indeed, there was no purpose for moving the victims to the back office except to facilitate these aims. In context, this movement was not merely brief and trivial; to the contrary, it substantially increased the risk of harm beyond that inherent in the crime of attempted robbery." (Id. at p. 280.)
In this case, defendant and another person entered the Alberto's restaurant while the two employees were in the back "prep" area of the restaurant. One employee walked toward the front of the restaurant, where defendant showed his gun and ordered the employee to open the cash register, which she did. Defendant went to the back prep area and ordered the other employee to put the employee's own money on the table, which the employee did. Defendant then ordered the two employees to get into the walk-in refrigerator that was in the back prep area, just a few steps away. The employees were in the refrigerator for 15 to 20 minutes before they opened the door and exited. They were cold and afraid.
When defendant and two accomplices robbed the Subway restaurant, defendant was holding a gun. Defendant ordered the employee in the front of the restaurant to open the cash register, and his male accomplice took the money from the register. Defendant's female accomplice went to the back area of the restaurant, where she stole a cell phone and credit cards from the purse of the employee who was in the back area. Defendant and his male accomplice walked the first employee about 46 feet to the back of the restaurant. Defendant ordered the two employees to get into the walk-in refrigerator, about 18 feet away. The two employees stayed in the refrigerator for two or three minutes. The employee who had been in the front of the restaurant felt safer inside the refrigerator than outside it, because she locked the refrigerator from the inside and she knew defendant could not get in. The other employee was afraid the entire time. The refrigerator was small and fit two people "uncomfortably."
The evidence shows that in both instances, the robbery was complete before the employees were ordered into the refrigerator. In neither case was the kidnapping incidental to the robbery, or carried out to facilitate the robbery. In neither case was the kidnapping carried out to obtain control of the money and property that defendant and his accomplice(s) stole. Rather, it appears that in both cases the employees were ordered into the walk-in refrigerator to facilitate defendant's escape and decrease the odds that they would be apprehended. The movement of the employees and their confinement in the refrigerator was in each case a gratuitous act that was not necessary to carry out the robbery, because in each case the robbery had already been completed. Further, the confinement increased the risk of harm to the employees, in that each of the three employees involved in the three counts of kidnapping were afraid and cold, and could have been injured while escaping.
Based on Vines, Corcoran, Hoard, and Washington, we conclude that in each robbery the movement of the employees and their confinement in the refrigerator was not incidental to the robberies, but rather gratuitously increased the risk of harm to them. Accordingly, substantial evidence supports the three aggravated kidnapping convictions.
2. Conduct Credit
Defendant argues, the People concede, and this court agrees, that defendant should have received 65 days of conduct credit, rather than 64 days, for a total of 503 days of precustody credit. At sentencing, the trial court correctly credited defendant with 438 days of credit. However, the court incorrectly calculated defendant's conduct credit under section 2933.1 at 64 days. Section 2933.1 sets the credit at no more than 15 percent for defendants convicted of violent felonies, as defendant here was. Fifteen percent of 438 days is 65.7. Therefore, defendant should receive 65 days of conduct credit, for a total presentence custody credit of 503 days. (See People v. Acosta (1996) 48 Cal.App.4th 411, 428 [appellate courts may correct the calculation of custody credits on appeal when the custody credit issue is not the sole issue raised on appeal].)
3. Prison Prior Findings
Defendant asks that the minute order for September 9, 2016, be corrected to show that the trial court struck each of the five prior prison term convictions. As the People point out, the trial court did this on September 20, 2016, when it corrected nunc pro tunc the September 9, 2016 minute order to show that the court struck those five priors. Thus, we need not make any orders on this point because defendant has already received the remedy he requests.
4. Presentence Investigation and Report Fee
Defendant argues, the People concede, and this court agrees, that the sentencing minute order for September 19, 2016, must be corrected to show that the court did not orally order defendant to pay a fee not to exceed $1,095 for the presentence investigation and report. Section 1203.1b authorizes a court to order a defendant to pay the costs of a presentence investigation and report if it makes a finding that the defendant has the ability to pay the fee. (§ 1203.1b, subds. (a), (b).) This fee is included in the minute order for September 19, but the record transcript shows the court did not order defendant to pay the fee and did not determine that defendant has the ability to pay the fee. Therefore, the record must be corrected to strike the fee from the minute order and the abstract of judgment.
5. Senate Bill No. 620
On January 1, 2018, after all briefing had been filed in this matter, Senate Bill No. 620 became effective, ending the statutory prohibition on a court's ability to strike a section 12022.5 or 12022.53 firearm enhancement. Section 12022.53, subdivision (h), has been amended to allow a court to exercise its discretion under section 1385 to strike or dismiss an enhancement under section 12022.53 at the time of sentencing or resentencing as follows: "The court may, in the interest of justice pursuant to Section 1385 and at the time of sentencing, strike or dismiss an enhancement otherwise required to be imposed by this section. The authority provided by this subdivision applies to any resentencing that may occur pursuant to any other law." (§ 12022.53, subd. (h).)
Defendant argues Senate Bill No. 620 should be interpreted to apply retroactively to all cases not yet final on its effective date. Because this case had been fully briefed and submitted, but the final opinion had not yet been issued on January 1, 2018, this appeal was not final when Senate Bill No. 620 went into effect. (People v. Vieira (2005) 35 Cal.4th 264, 305-306 [a judgment is final for retroactivity purposes when all direct appeals have been exhausted and a petition for writ of certiorari in the United States Supreme Court has been denied or the time for filing such a petition has been exhausted.].)
The People did not file a respondent's supplemental brief. --------
We agree with defendant that Senate Bill No. 620 is retroactive to his case. Under In re Estrada (1965) 63 Cal.2d 740, 742 (Estrada), a court must assume, absent evidence to the contrary, that when legislation reduces punishment for a particular offense, the Legislature intended the legislation to apply to all defendants whose judgments are not yet final on the statute's operative date. Under People v. Francis (1969) 71 Cal.2d 66, 76-77, the possibility of an alternative or lesser punishment to be imposed in the sentencing court's discretion triggers the Estrada rule and requires remand to the sentencing court for reconsideration of the sentence. We therefore remand the matter for the trial court to consider striking the section 12022.53, subdivision (b), enhancements pursuant to sections 1385 and 12022.53, subdivision (h).
DISPOSITION
The matter is remanded for a new sentencing hearing so the trial court can exercise the discretion set forth in the newly enacted section 12022.53, subdivision (h). The trial court clerk is directed to correct the abstract of judgment to add one day of conduct credit and strike the section 1203.1b fee order, and to correct the September 19, 2016 sentencing minute order to strike the section 1203.1b fee order.
In all other respects the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J. We concur: CODRINGTON
J. SLOUGH
J.