Opinion
E067265
08-24-2018
THE PEOPLE, Plaintiff and Respondent, v. NAYELI SERAFIN, Defendant and Appellant.
Sheila Quinlan, 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, and Steve Oetting and Daniel J. Hilton, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. RIF1401954) OPINION APPEAL from the Superior Court of Riverside County. Jean P. Leonard, Judge. Affirmed. Sheila Quinlan, 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, and Steve Oetting and Daniel J. Hilton, Deputy Attorneys General, for Plaintiff and Respondent.
I. INTRODUCTION
A jury convicted defendant and appellant Nayeli Serafin of kidnapping for robbery (Pen. Code, § 209, subd. (b)(1); count 1), robbery (§ 211; count 2), assault with a firearm (§ 245, subd. (a)(2); count 3), second degree burglary (§ 459 count 4), and embezzlement (§ 503; count 5). She received a sentence of seven years to life.
Further undesignated statutory references are to the Penal Code.
On appeal, Serafin argues that no substantial evidence supports her kidnapping for robbery conviction because the movement of the victim was incidental to the robbery and did not increase the victim's risk of harm. She also argues that her counsel's failure to seek exclusion of certain evidence implicating her as a perpetrator in a previous robbery constituted ineffective assistance of counsel.
We find that substantial evidence supports Serafin's kidnapping for robbery conviction, reject her claim of ineffective assistance of counsel, and affirm the judgment.
II. BACKGROUND
The prosecution presented evidence that in September 2013 Serafin helped her boyfriend and codefendant Felipe Gonzalez Chavez and codefendant Ricardo de la Torre Aceves to commit a robbery at the restaurant where she worked as a manager. In the evening, after the dining room portion of the restaurant had closed (the drive-through remained open), Serafin got a text from Chavez: "'We're ready now.'" She texted back "'Okay,'" unlocked the back door to the restaurant, and locked herself in the bathroom.
Aceves was tried together with Serafin in the same proceedings by a different jury. Chavez was not tried together with Aceves and Serafin. --------
A coworker of Serafin, identified as Jane Doe in the reporter's transcript, had noticed that Serafin had been acting unusually that evening. Among other things, Serafin was receiving and responding to many more texts that usual. While Doe was at a sink washing a metal part, she sensed someone behind her. She turned and saw a man pointing a gun at her. She later identified the man as Aceves.
Aceves asked Doe where cameras and light switches were in the restaurant. After she told him, he told her to get on the floor, and she felt the gun at the back of her neck. He then led her to the restaurant's walk-in freezer, where he taped her hands, mouth, and nose with duct tape. Doe had trouble breathing because of the tape and felt like she was suffocating.
Meanwhile, Chavez knocked on the door of the bathroom and Serafin came out. He told her to give him all the money, and she did. During the robbery, the robbers opened a drawer in the restaurant's office where money had previously been kept. At one point, Chavez told Serafin to close her eyes because Aceves was going to hit her. After Aceves hit Serafin, her mouth began bleeding.
Doe was able to free herself from the duct tape and press an alarm, causing a loud noise to go off. Aceves returned to the freezer, along with Chavez and Serafin. Aceves taped Doe's hands and mouth again, threw her to the ground, and told her he would kill her if she moved. Aceves also bound Serafin's hands and placed her in the freezer with Doe. Doe estimated that after about 15 or 20 minutes, she and Serafin were able to free themselves and exit the freezer. Police were on scene when they did so.
A responding police officer testified that Doe "seemed very distraught," that she was trembling and pale, and had a "blank stare." Doe was transported to the hospital, where she was treated for very low blood pressure and released after one or two hours.
Serafin initially claimed to be a victim of the robbery, telling police that three unknown people had broken into the restaurant and forced her to access the safe and give them the money. Police noticed, however, that the glass door where the robbers purportedly gained entry appeared to have been broken from the inside. Serafin later confessed her involvement in the robbery, admitting that Chavez and Aceves had gained entry through a door that she unlocked for them and that the glass door had been broken toward the end of the robbery. A recorded police interview with Serafin was played for the jury.
Serafin did not testify in her own defense. In the recorded interview with police that was played for the jury, she told police that Chavez, who was the father of her child, had told her that she had to help with the robbery if she ever wanted to see the child again. She denied that Chavez had hit her. But Serafin's mother testified at trial that Chavez was abusive, both verbally and physically, to Serafin and their child. Serafin's mother also testified that Serafin was afraid of Chavez because he had threatened to take the child "far away" so that she "wouldn't see him again." Serafin's mother testified that Chavez would sometimes take the child "by force," over Serafin's objections, and bring him back "very late." At the time of the robbery, the child was at home in the care of Serafin's mother. During closing arguments, defense counsel did not contest that Serafin was involved in the robbery, but argued she "did what she had to do while under duress."
The jury found Serafin guilty on all five charged counts. The trial court imposed a sentence of seven years to life with respect to count 1. It stayed punishment with respect to the remaining counts pursuant to section 654.
III. DISCUSSION
A. Substantial Evidence Supports Serafin's Kidnapping for Robbery Conviction.
Serafin contends that her kidnapping for robbery conviction lacks the support of substantial evidence. More specifically, she argues there is no substantial evidence that the movement of Doe was more than incidental to the robbery, and that there is no evidence that the movement increased the risk of harm to her. We disagree.
1. Applicable Law and Standard of Review.
Kidnapping for robbery is one of the varieties of aggravated kidnapping defined in section 209, subdivision (b)(1), which states: "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." Subdivision (b)(2) of section 209 states: "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." Thus, kidnapping for robbery requires "movement of the victim that is not merely incidental to the commission of the robbery, and which substantially increases the risk of harm over and above that necessarily present in the crime of robbery itself." (People v. Rayford (1994) 9 Cal.4th 1, 12 (Rayford).)
As to the first prong, whether the movement is merely incidental to the robbery, the jury considers the "'scope and nature'" of the movement, including but not limited to the actual distance a victim is moved. (Rayford, supra, 9 Cal.4th at p. 12, citing People v. Daniels (1969) 71 Cal.2d 1119, 1139 (Daniels); see also People v. Vines (2011) 51 Cal.4th 830, 870 (Vines).) There is no minimum number of feet that a defendant must move a victim to satisfy the first prong. (Vines, supra, at p. 870; Rayford, supra, at p. 12, citing Daniels, supra, at p. 1128.) The second prong refers to whether the movement subjects the victim to a substantial increase in risk of harm above and beyond that inherent in robbery. (Rayford, supra, at p. 13.) "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." (Id. at p. 13.) Substantially increased risk of psychological trauma is sufficient, even where there is no increased risk of physical injury. (People v. Nguyen (2000) 22 Cal.4th 872, 874, 886.)
Challenges to the sufficiency of the evidence in support of a conviction are reviewed under the substantial evidence standard of review. (Rayford, supra, 9 Cal.4th at p. 23.) Under this standard, we "review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Johnson (1980) 26 Cal.3d 557, 562.) Additionally, we must "'"presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence."'" (Rayford, supra, at p. 23.) Simply stated, "we must determine 'whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" (People v. Davis (1995) 10 Cal.4th 463, 509, italics omitted.)
2. Analysis.
There is ample evidence in the record to support the conclusion that Doe's movement into the walk-in freezer was not merely incidental to the commission of the robbery. Movement within the premises where the robber found the victim often does not suffice to support a kidnapping for robbery conviction. (See, e.g., Daniels, supra, 71 Cal.2d at p. 1126 [movement within the premises of a residence or business during robbery generally does not constitute kidnapping for robbery].) Nevertheless, there are "circumstances in which a robber can properly be convicted of kidnaping even though he does not take his victim outside the premises in question." (People v. Timmons (1971) 4 Cal.3d 411, 415.) Here, there is no evidence anything was taken from the freezer, or that the movement was otherwise an integral part of completing the robbery. (Cf. People v. Adame (1971) 4 Cal.3d 417, 418 [movements of supermarket employees from check stand to manager's office where safe was located were merely incidental to robberies].) The jury reasonably concluded in these circumstances that Doe's movement to the freezer was not merely incidental to the robbery.
The California Supreme Court's holding in Vines, supra, 51 Cal.4th at pages 870 and 871 is instructive. In that case, the defendant walked a robbery victim from the front of a restaurant to the back, where they encountered three other employees. (Ibid.) The defendant then walked all four victims down a stairway and into a basement freezer, which the defendant shut and locked. (Id. at p. 871.) The Supreme Court concluded: "Under these circumstances, we cannot say the 'scope and nature' of this movement was 'merely incidental' to the commission of the robbery. (Ibid.)
As Serafin points out in briefing on appeal, the facts of Vines differ in some respects from those of the present case. Doe's initial encounter with Aceves was not in the front of the restaurant, but rather as she was washing equipment in the back. The freezer in the present case was, apparently, on the same level as the rest of the restaurant, rather than down a basement stairway. Doe was restrained in the freezer not by a locked door, but rather by threats of violence and the use of duct tape to bind her hands. We are not persuaded, however, that these differences make a difference. A rational trier of fact could conclude, as the jury in this case did, that Doe's movement was not incidental to the robbery and that moving a victim to a walk-in freezer in the back of a restaurant is of a scope and nature that is different from merely moving a victim from room to room or around the premises.
There is also ample evidence that Doe's movement into the freezer substantially increased her risk of harm. Again, Vines is instructive: "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." (Vines, supra, 51 Cal.4th at p. 871.) We also observe that in the present case Doe's risk of physical and psychological harm was increased by the dilemma Aceves placed her in, having to choose between remaining in the freezer and potentially freezing to death or taking the risk of exiting the freezer and possibly encountering an armed man who had threatened to kill her if she moved. We reject Serafin's argument that the only harm or risk of harm Doe suffered was from Aceves pointing a weapon at her and covering her nose and mouth with duct tape, not from moving her into the freezer. On these facts, it is reasonable to conclude, as the jury did, that Doe's movement into the freezer substantially increased her risk of harm, whatever other factors also may have placed her in danger and regardless of whether she actually was harmed.
We conclude that substantial evidence supports Doe's kidnapping for robbery conviction.
B. Serafin Fails to Establish That Trial Counsel Was Ineffective.
Serafin argues her attorney at trial provided ineffective assistance of counsel by not objecting to certain evidence implicating her as a perpetrator in a previous robbery. We are not persuaded that the lack of objection was not a rational, tactical decision, as opposed to ineffective assistance. But even assuming deficient performance of counsel, we are not persuaded that Serafin has demonstrated prejudice. We therefore reject Serafin's claim.
1. Additional Background.
The charges at issue in the present case relate to the September 2013 robbery of the restaurant where Serafin worked. Prior to trial, the prosecution sought permission to introduce evidence that in August 2012, Serafin had been the victim of an earlier robbery of the same restaurant by unidentified perpetrators. The prosecutor noted many similarities between the two robberies: "In the first robbery, Miss Serafin was a victim where the criminals came in through a broken glass [door]. They took her to the freezer. They punched her in the face, making her bleed. They tied her up in the freezer exactly—exactly in the same way as the robbery that she admitted she committed with [Chavez]." The prosecution's theory of the case was that the September 2013 robbery was "a result of what was learned" from the August 2012 robbery. Serafin admitted to police that she had discussed the August 2012 robbery with Chavez, and that he had "asked for a lot of the details about what happened and how the robbery occurred . . . ." She said Chavez started to ask such questions not immediately after the August 2012 robbery, but rather in June or July 2013.
Over defense objection, the trial court granted the prosecution permission to introduce evidence regarding the August 2012 robbery. During trial, police witnesses detailed the circumstances of the August 2012 robbery. In addition, Serafin's recorded interview with police, which was played for the jury, included some discussion of the August 2012 robbery. During that interview, after Serafin had already admitted her involvement in the September 2013 robbery, the following colloquy between the police interviewer, Detective Wheeler, and Serafin took place:
"[Police]: Okay. So the [robbery] that happened in August of 2012, did Felipe do that?
"[Serafin]: No, I don't think so. I really don't think so . . . . [¶] . . . [¶]
"[Police]: 'Cause Felipe [Chavez] told Ricardo [Aceves] that he did the robbery in August [2012] and he said that you helped. [¶] . . . .[¶]
"[Serafin]: Mm-mm, no, that time I didn't—I really didn't help him that time. I didn't do anything. I can even . . . .
"[Police]: But Felipe said that to Ricardo.
"[Serafin]: Mm-mm, no, I didn't.
"[Police]: That's what Felipe said.
"[Serafin]: Well because—I don't know why he said it, but really, personally, I don't even know who came in during that robbery. I don't know if it was Felipe, but if he went in it wasn't with my help. Not that. I did it this time because he—I already told you why I did it and how he—he was threatening me and saying and saying and saying about my son, about my son. But not the one in August. [¶] . . . [¶]
"[Police]: Do you understand that I don't believe you? That you helped in this robbery in September 2013, and the way the robbery happened in September is almost exactly the same way as the robbery happened in August of 2012. And there was only one person who went into the store and robbed it in 2012 because neighbors saw that person walk off, and he's the same height and build as Felipe. [¶] . . . [¶]
"[Police]: The problem is that it's almost the same as what happened. [¶] . . . [¶]
"[Serafin]: Okay, that's why I'm telling you, he was asking me a lot about what happened at the first one, but now, I really didn't have anything to do with that . . . since then I've really been traumatized and I really, honestly, didn't have anything to do with that robbery."
Trial counsel did not raise any specific objections to this portion of the interview.
After the jury heard Serafin's interview with police, including the above portion, pursuant to a stipulation of the parties the court instructed the jury as follows: "Ladies and gentlemen, I'm going to read a stipulation to you. You have heard Detective Wheeler making references to statements that were made by defendant Ricardo Aceves when questioning defendant Nayeli Serafin. You are not to speculate as to the correctness or the validity of any statement alleged to have been made by defendant Ricardo Aceves during that interview."
2. Applicable Law.
To demonstrate ineffective assistance of counsel, a defendant must show: (1) "counsel's performance was deficient because the representation fell below an objective standard of reasonableness under prevailing professional norms"; and (2) prejudice resulted from the counsel's deficient performance, i.e., "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." (People v. Williams (1997) 16 Cal.4th 153, 214-215.) Generally, a reviewing court does not second-guess trial counsel's strategic and tactical choices. (People v. Mitcham (1992) 1 Cal.4th 1027, 1059.) There is a "'strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.'" (People v. Lucas (1995) 12 Cal.4th 415, 436-437.)
"A defendant who raises [ineffective assistance of counsel] on appeal must establish deficient performance based upon the four corners of the record." (People v. Cunningham (2001) 25 Cal.4th 926, 1003.) The judgment must be affirmed "[if] the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged . . . unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation." (People v. Pope (1979) 23 Cal.3d 412, 426, overruled on other grounds by People v. Berryman (1993) 6 Cal.4th 1048, 1081, fn. 10.)
3. Analysis.
Serafin contends on appeal that there could be no satisfactory explanation for her trial counsel's decision to address the portions of the police interview transcript that implicate her in the August 2012 robbery of her store by means of a stipulation, rather than objecting and seeking their exclusion. We disagree.
Over defense objection, the trial court had ruled that the jury could hear evidence of the August 2012 robbery—a ruling Serafin has not challenged on appeal. The jury heard police witnesses testify regarding what happened during the August 2012 robbery. Serafin had confessed involvement as a perpetrator in the September 2013 robbery, and there were manifest similarities between the two robberies. As Serafin acknowledges on appeal, a jury conclusion that she was a perpetrator in both robberies would be "fatal" to her duress defense. It was imperative for the defense to give the jury some basis to conclude Serafin was not in fact a perpetrator of the August 2012 robbery, or at least to set aside the question of whether she was or not.
The approach taken by defense counsel accomplished this purpose. The jury was instructed not to speculate about the "correctness or the validity" of the purported comments by Aceves implicating Serafin in the August 2012 robbery. The jury also heard Serafin's repeated and emphatic denial of any involvement in the August 2012 robbery, and learned of an alternative explanation for the similarities between the August 2012 and September 2013 robberies, without Serafin having to take the stand in her own defense and be subjected to cross examination. Viewed in this light, defense counsel's decision not to seek to exclude the comments at issue appears to be a rational, tactical decision.
We are also unpersuaded that there is a reasonable probability the results of the trial would have been different if defense counsel objected to the statements at issue, even assuming for the sake of argument those objections would have been sustained and the evidence excluded from trial. At trial, as noted, defense counsel did not contest Serafin's involvement as a perpetrator in the September 2013 robbery, but argued that she participated under duress. More specifically, Serafin contended that Chavez had told her that she had to help with the robbery if she ever wanted to see their child again. Serafin's mother testified Chavez would threaten Serafin by saying that he would "take [the child] far away, and saying that she wouldn't see him again."
Serafin's duress defense required, however, that she establish that she reasonably believed that her life or her child's life "would be in immediate danger" if she refused Chavez's demand or request to commit the crime. (CALCRIM No. 3402) Similarly, a necessity defense would require she establish that she acted "in an emergency to prevent a significant bodily harm or evil to herself or someone else." (CALCRIM No. 3403) The record is largely devoid of evidence of any such immediate danger or emergency. There was some evidence that Chavez had engaged in domestic violence against Serafin and their child. But during her interview with police, Serafin did not express that she had feared for her own safety at any point. And during the robbery, the child was safely in the care of Serafin's mother. On these facts, we find no reasonable probability the result of the trial would have been different, even assuming the challenged statements were excluded from evidence, and indeed even assuming the jury was persuaded that she was a victim of the August 2012 robbery, not a perpetrator.
IV. DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J. We concur: RAMIREZ
P. J. MILLER
J.