In re Brandon F.

 

 

 

 

 

 

 

 

 

 

 

 

Filed 12/6/13  In re Brandon F. CA2/2

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>NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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  This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115>.

 

 

 

IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

 

SECOND
APPELLATE DISTRICT

 

DIVISION
TWO

 

 
>

In re BRANDON F., a Person Coming Under the Juvenile Court Law.	B241282       (Los Angeles County       Super. Ct. No. NJ23574)
THE PEOPLE,               Plaintiff and Respondent,               v.   BRANDON F.,               Defendant and Appellant.

 

            APPEAL from
an order of the Superior Court
of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Los Angeles
County.  John C. Lawson
II, Judge, Robert J. Totten, Juvenile Court Referee.  Affirmed.

Torres & Torres and Tonja R.
Torres, under appointment by the Court of Appeal, for Defendant and Appellant.

            Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Lance E. Winters, Assistant Attorney General, Steven D. Matthews and Analee J.
Brodie, Deputy Attorneys General, for Plaintiff and Respondent.

 

* * * * * *

            The minor, Brandon F. (appellant) appeals from an order
declaring him to be a ward of the court pursuant to Welfare and Institutions
Code section 602, and committing him to the California href="http://www.mcmillanlaw.com/">Department of Corrections and Rehabilitation,
Division of Juvenile Justice (DJJ) for a maximum confinement period of 43 years
eight months, after a finding that he committed attempted murder (Pen. Code, §§
187, subd. (a); 664,href="#_ftn1"
name="_ftnref1" title="">^[1] count 15), seven counts of second degree
robbery (§ 211, counts 1, 3, 7, 9, 11, 13, and 14), and seven counts of false
imprisonment (§ 236, counts 2, 4, 5, 6, 8, 10, and 12).  Appellant contends that (1) there is
insufficient evidence to support the juvenile court’s finding that he committed
attempted murder, (2) the juvenile court relied on a legally incorrect theory
to find him guilty of attempted murder, and (3) the four false imprisonment sentences
should have been stayed pursuant to section 654 and the juvenile court erred in
imposing concurrent sentences on those counts.

            We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Prosecution Case

            On June 10,
2008, the Los Angeles County District Attorney filed a Welfare and Institutions
Code section 602 petition alleging that on or about April 11, 2008, 14-year-old
appellant committed petty theft (§ 484, subd. (a)) from a 99¢ Only Store in
Long Beach.  The juvenile court sustained
the petition, declared appellant a ward of the court, and placed him home on
probation.

            On August
20, 2010, the Los Angeles County District Attorney filed a second Welfare and
Institutions Code section 602 petition alleging that on or about October 19,
2008, 14-year-old appellant committed 15 counts of felony criminal offenses.  The following evidence was adduced at an
adjudication hearing on March 19, March 20 and April 9, 2012.

           

            1.         99¢ Only Store–South Fairfax Avenue,
Los Angeles

            On October 19, 2008, at approximately
9:00 p.m., 99¢ Only Store employee David Sanchez had finished sweeping and mopping
the floors when appellant and Christian Traylorhref="#_ftn2" name="_ftnref2" title="">^[2] entered the store.  Appellant put a gun to Sanchez’s side and
Traylor said “Don’t move.  This is a
robbery.”  Traylor took Sanchez to a
store room at the back of the store. 
Traylor ordered Sanchez to lie down on the floor and put a box over his
head.

            Ian Riley
was restocking the clothing aisle when he turned around and saw appellant
pointing a gun at him.  Riley told
appellant, “Hey, man, we have cameras watching you, I don’t know if you want to
do this or not.”  Appellant told Riley to
go to the store room.  When Riley entered
the store room, Sanchez was lying on the floor. 
Traylor ordered Riley to lie down and a box was placed over Riley’s
head.

            Lerey
Llamas, the assistant manager of the 99¢ Only Store, was in the back office
assisting cashier Geda Kelouwok closing out her register.  Llamas heard a loud noise and opened the
office door.  Appellant pointed a gun at
her and said “Bitch, I want you to open the safe.”  Llamas and Kelouwok walked to the safe by the
main entrance of the store as appellant kept the gun pointed at them.  Llamas opened the safe and appellant removed
three bags of money.  Appellant moved
some boxes that covered a larger safe and told Llamas, “Open the big safe, you
bitch.”  Appellant removed boxes of coins
and some cash from the larger safe. 
Appellant struck Llamas approximately three times on the shoulder with
the gun and then ordered her and Kelouwok back to the office.  Appellant found the safe balance sheet and
discovered the amount listed was more than he had taken from the safes.  Llamas told him she did not know where the
additional money was because it was her first day at that store.  Appellant noticed the security camera in the
office and asked for the video.  Llamas
did not have access to the video and appellant took a modem that was attached
to all the cameras.  Appellant ordered
Llamas to empty her pockets.  He took her
identification, car keys, cell phone, $20, and the store keys.  Appellant also took Kelouwok’s cell phone.

            Teresa
Ouendo was working in one of the aisles at the store when Traylor grabbed her
by the back of the head and pushed her towards the shelves.  He forced her head down and held a gun to
her.  Traylor took her to the break room
and threw her to the floor.  He put his
foot against her chin and she found it difficult to breathe.  Traylor took Ouendo’s money and cell phone.

            Angelica
Lopez came out of the 99¢ Only Store bathroom and saw Traylor holding
Ouendo by the head.  Lopez screamed for
the store manager.  Appellant appeared
and ordered Lopez into the back office.  Appellant threatened Lopez with the gun and
took her cell phone.

            Traylor went
to the back office holding Ouendo at gunpoint and told appellant they had to
leave.  Traylor hit Ouendo and threw her on
the floor.  Appellant and Traylor walked
to the back of the store and left the building.

            >2.         John’s
Supermarket–Santa Monica Boulevard, Los Angeles

            John’s Supermarket (market) was
located approximately five miles from the 99¢ Only Store that appellant
and Traylor robbed around 9:00 p.m. on October 19, 2008.  At approximately 11:00 p.m., Christopher
Trujillo, the manager in charge of closing, saw appellant and Traylor in the market.  Traylor was drinking a carton of orange juice
and Trujillo confirmed that Traylor had paid for it.  Trujillo directed cashiers Garik Atabekyn and
Alfredo Barbosa to close their registers and count the money in a booth by the
front of the market.  As Barbosa
approached the booth, Traylor put a gun to his head and demanded the
money.  Barbosa handed over the money and
Traylor ordered him to get down behind the desk.  Atabekyn was counting the money from his
register when he heard an unfamiliar voice. 
He turned and saw Traylor pointing a gun at him.  Traylor told him to get on the floor beside
Barbosa.  Traylor took the money from
Atabekyn and left the booth.

            Arthur
Khoboyian was working at a cash register when appellant and Traylor attempted
to purchase some juice and candy.  They
said they did not have enough money and Khoboyian called Trujillo to cancel the
purchase.  Traylor pointed a gun at
Khoboyian and ordered him to the floor. 
Appellant had his hand under his shirt and stood behind Khoboyian.  Khoboyian stayed on the floor when appellant
chased away another market employee.

            Traylor
came up behind Trujillo and put a gun to his right side and said, “Relax, calm
down.”  Traylor and Trujillo fell to the floor
and Trujillo tried to throw away his keys. 
Traylor put the gun to Trujillo’s head and took the keys.  Appellant was standing by the service deli
approximately 35 feet away.  Traylor
ordered Trujillo to go to the booth and open the safe.  Atabekyn and Barbosa were in the booth and
Trujillo told them to leave.  Traylor
grabbed money from Atabekyn and Barbosa as they exited the booth.  Trujillo pressed a silent alarm located in
the booth while Traylor was distracted. 
Traylor yelled at appellant, “Hurry up, let’s get out of here, he is
pushing the alarm.”

            Atabekyn
saw Trujillo activate the silent alarm and appellant and Traylor ran out of the
market.  Atabekyn followed them outside,
got in his car and followed them as they ran across the parking lot.  Appellant got into a silver Chrysler PT
Cruiser.  Traylor walked back towards
Atabekyn’s car and pointed his gun at him. 
Atabekyn backed up and Traylor got in the silver car.  Atabekyn followed the silver car onto the
freeway.  He continued to follow the
silver car at a distance of two or three car lengths.  Traylor leaned out of the passenger window
and shot at Atabekyn on at least two occasions. 
Atabekyn slowed down but continued to follow the silver car until it
exited the freeway.  He exited at the
next offramp and talked to the police.

            >3.         Investigation
and Arrest

            Los Angeles Police Department
Detective David Vinton investigated both robberies.  The victims described the robbers as young
African-American males.  One was
approximately 18 to 20 years of age, six feet two inches to six feet four
inches tall and weighed 180 to 200 pounds. 
The other was 14 or 15 years of age, five feet four to five feet six
inches tall and weighed approximately 160 pounds.  The DNA profile taken from the orange juice
container at the market matched Traylor’s profile and he was arrested.  Appellant’s brother had previously been arrested
with Traylor but his physical appearance did not match the video images from
the 99¢ Only Store or the witnesses’ descriptions of the second robber.  Appellant’s booking information following his
arrest in April 2008 for petty theft showed that appellant was five feet four
to five feet five inches tall and weighed approximately 150 pounds at that
time.href="#_ftn3" name="_ftnref3" title="">^[3]  Detective Vinton obtained appellant’s April
2008 booking photograph and included it in a photographic lineup shown to
victims of the October 19, 2008 robberies.  Llamas, Lopez, and Sanchez identified
appellant as one of the two individuals that committed the 99¢ Only Store crimes.

            Once in
custody, Detective Vinton advised appellant of his Miranda rights.href="#_ftn4"
name="_ftnref4" title="">^[4]  Appellant knowingly waived his rights and agreed
to be interviewed.  He initially denied
knowing Traylor and denied involvement in the crimes.  Appellant then admitted his participation in
the crimes but claimed that Traylor “did everything.”  According to appellant, he smoked marijuana
that night and was “high.”  He could not
remember all the details.  Traylor gave
him a handgun before they went into the 99¢ Only Store.  Appellant said he went into the store with
Traylor and then he “pulled out the gun and asked for the money.”  Detective Vinton showed appellant photographs
from the security camera at the 99¢ Only Store. 
Appellant identified himself in the photographs and said “it was me” “robbing”
the store.  He admitted pointing a gun at
the heads of the robbery victims and ordering a woman to give him money from a
safe.  He said he stole bills and coins
and also a cell phone from one woman.

            Appellant
said he left the gun in the car during the market robbery because “two
robberies in one night” did not “add up” to him.  During the market robbery he kept his hand
under his shirt and acted as if he had a gun.  After leaving the market, Traylor approached
the market employee who was attempting to follow them and appellant heard a
single gunshot.  Later, during the car
chase on the freeway, appellant heard two or three gunshots fired from Traylor’s
front passenger window.

Defense Case

            Dr. Jay
Schlanger, an optometrist, reviewed appellant’s medical records and made a pair
of eyeglasses from a reverse prescription to illustrate appellant’s uncorrected
vision at the time of the robberies.  Dr.
Schlanger testified that appellant could see objects and people moving but
would not be able to distinguish them until they were three to four inches from
his face.  He opined that a person with
appellant’s uncorrected visual acuity could enter a brightly-lit store, grab
individuals, put a gun to their heads, take their property and direct them around
the store.

DISCUSSION

I.          Substantial
Evidence Supports Appellant’s Conviction for Attempted Murder>

            Appellant
contends the evidence was insufficient to sustain his conviction for href="http://www.fearnotlaw.com/">attempted murder.  He argues the evidence was insufficient to
show that Traylor intended to kill Atabekyn.

            “Attempted murder
requires the specific intent to kill and the commission of a direct but
ineffectual act toward accomplishing the intended killing.”  (People
v. Lee (2003) 31 Cal.4th 613, 623.) 
‘“There is rarely direct evidence of a defendant’s intent.  Such intent must usually be derived from all
the circumstances of the attempt, including the defendant’s actions.  [Citation.]’” 
(People v. Smith (2005) 37
Cal.4th 733, 741.)  Although reasonable
minds may differ as to whether a defendant had the intent to kill, “[o]ur role
is to determine the legal sufficiency of the found facts and not to second
guess the reasoning or wisdom of the fact finder.”  (People
v. Lashley (1991) 1 Cal.App.4th 938, 946.)

            The same standard
governs review of the sufficiency of evidence in juvenile
cases and adult criminal cases.  (>In re Christopher F. (2011) 194
Cal.App.4th 462, 471, fn. 6; In re
Matthew A. (2008) 165 Cal.App.4th 537, 540.)  We review the entire record in the light most
favorable to the juvenile court’s findings “to determine whether any
rational trier of fact could have found the essential elements of the crime or
special circumstances beyond a reasonable doubt.”  (People
v. Zamudio (2008) 43 Cal.4th 327, 357, italics omitted; >In re Christopher F., supra, at p. 471,
fn. 6.)  “The record must disclose substantial
evidence to support the [findings]—i.e., evidence that is reasonable, credible,
and of solid value . . . .” 
(Zamudio, supra, at p.
357.)  Even if we conclude that a
reasonable trier of fact could reconcile the circumstances with a contrary
finding, we affirm the court’s order unless it appears “‘“that upon no
hypothesis whatever is there sufficient substantial evidence to support”’ the
[court’s findings].”  (>Ibid.) 
“The same standard applies when the conviction rests primarily on
circumstantial evidence.”  (>People v. Kraft (2000) 23 Cal.4th 978,
1053.)

            After reviewing
the entire record, we conclude that there is sufficient evidence of Traylor’s specific
intent to kill Atabekyn.  Appellant
argues an intent to shoot is not equivalent to specific intent to kill and “if
Traylor had intended to kill, he necessarily would have shot directly at Atabekyn,
rather than over his car.”  We are not
persuaded.

            Traylor had a
motive to kill Atabekyn because Atabekyn was one of the victims of the market
robbery.  A motive to kill is
particularly reasonable to infer when the victim is a witness.  (See People
v. Jenkins (2000) 22 Cal.4th 900, 931.) 
In Jenkins, the victim of the robbery
supplied the police with a license number of the automobile in which the two
men who had robbed him were driving, and that vehicle was traced to
defendant.  Defendant declared his
innocence to the investigating detective. 
The victim positively identified defendant, both to the investigating
detective and at the preliminary hearing, as one of the two assailants.  Defendant was convicted of first degree
murder of and conspiracy to murder the investigating detective, and attempted
murder of the witness.  (>Ibid.)

Atabekyn exited the market and got into
his car because he wanted to follow Traylor and appellant.  Traylor first walked towards Atabekyn’s car
and pointed the gun at him.  Appellant
told Detective Vinton he heard a single gunshot when Traylor approached Atabekyn’s
car.  Atabekyn reversed his car,
thwarting Traylor who then jumped into the PT Cruiser with appellant and left.  Atabekyn resumed following Traylor through
the parking lot and onto the freeway.  Atabekyn’s
actions significantly increased the likelihood that Traylor would be
apprehended.  Atabekyn could provide
police with a description of the robbers, their getaway vehicle, and their
location.  Traylor proceeded to lean out
the front passenger window of the PT Cruiser on at least two occasions and fire
towards Atabekyn from a distance of approximately three car lengths.  (People
v. Mayfield (1997) 14 Cal.4th 668, 768–769 [intent to kill can be inferred
from a desire to eliminate pursuit and avoid arrest].)

            Appellant focuses
on Atabekyn’s testimony that the gun appeared to be pointed towards his car but
“higher.”  He contends Traylor “purposely
aimed his gun above the car Atabekyn was driving.”  There is no evidence in the record compelling
such a conclusion.  Atabekyn did not
testify that Traylor fired the gun into the air which would support appellant’s
contention.  To the contrary, Atabekyn
testified that when he stopped his car he checked to see if any bullets had hit
the car.  The fact that Atabekyn escaped
death because of Traylor’s “poor marksmanship [does not] necessarily establish
a less culpable state of mind.”  (>People v. Lashley, supra, 1 Cal.App.4th at p. 945.)

II.        The
Juvenile Court Did Not Rely on an Incorrect Legal Theory to Find Appellant
Committed Attempted Murder

            Appellant contends his attempted murder conviction should
be reversed because the juvenile court relied on an incorrect legal theory to
find him guilty.  He contends the court
found him guilty of attempted felony murder which is not a legally cognizable
crime.

            At
the juvenile court’s request, the prosecution addressed defense counsel’s
argument that the prosecution had failed to prove appellant shared Traylor’s
specific intent to kill.  The prosecution
stated, “the felony murder rule applies in this case.”  The prosecution argued that appellant knew that
when he and Traylor entered the market with guns, if there was a confrontation
with someone who tried to prevent the robbery, “the reasonable outcome or what
is going to come out of that situation . . . is a possible
shooting and a possible killing.”  He
argued that appellant was culpable “under a theory of accomplice liability”
because he knowingly entered the market to back up Traylor who was carrying a
firearm, then left with Traylor in a getaway vehicle while Traylor was shooting
at Atabekyn.  The juvenile court found
the attempted murder allegation to have been proven and stated, “I agree with
the argument that was made by [the prosecution].”

            Appellant
contends that the juvenile court’s comment indicates it relied on the felony
murder rule.  We reject this contention.

            As the Supreme
Court noted in People v. Prettyman
(1996) 14 Cal.4th 248, the “‘natural and probable consequences’ doctrine
[has been applied] in situations where a defendant assisted in the commission
of an armed robbery, during which a confederate assaulted or tried to
kill one of the robbery victims.  In
those cases, courts upheld jury verdicts convicting the defendant of assault
and/or attempted murder, on the ground that the [trier of fact]
could reasonably conclude that the crime was a natural and probable consequence
of the robbery aided by the defendant.  [Citations.]” 
(Id. at pp. 262–263.)  That was precisely the situation here and the
prosecution argued that appellant need not have personally fired the weapon to
be liable for attempted murder.

            While the prosecution did state the felony murder rule
applied in this case, his argument, however, focused on appellant’s liability
as an aider and abettor.  The prosecution
argued that appellant acted with knowledge of Traylor’s criminal purpose at the
market.  Even though appellant left his
firearm in the car, the prosecution argued that he acted as if he had a weapon
under his clothing and knew he was “there to back up his accomplice,” who had a
firearm.  He concluded his argument by stating
that appellant was “responsible under a theory of accomplice liability.”

            We
do not read the juvenile court’s comment that it was in agreement “with the
argument that was made” by the prosecution to undermine the validity of the
judgment.  The juvenile court did not
state the felony murder rule proved appellant committed attempted murder.  The court’s agreement was with the prosecution’s
analysis and not his misstatement of the law. 
The “felony-murder rule is inapplicable to attempted murder as well as
aiding and abetting an attempted murder.” 
(People v. Patterson (1989)
209 Cal.App.3d 610, 614.)  The juvenile
court is presumed to know the law and apply it correctly.  (People
v. Superior Court (Du) (1992) 5
Cal.App.4th 822, 836.)

            As
discussed above in part I, the juvenile court reasonably found that there was
substantial evidence that appellant’s accomplice intended to kill Atabekyn.  The juvenile court did not rely on an
incorrect legal theory, and there are no grounds for reversal.

III.       Appellant’s
Sentence Did Not Violate Section 654

            Appellant contends the juvenile court erred when it
failed to stay execution of sentence on four counts of false imprisonment
because the false imprisonments were part of an indivisible course of conduct
punished by the terms imposed for the robberies of those same victims.

            Section 654 bars
multiple punishments where “there is a course of conduct that violates more
than one statute but nevertheless constitutes an indivisible transaction.”  (People
v. Hairston (2009) 174 Cal.App.4th 231, 240.)  If a defendant commits more than one offense,
but ‘“all the offenses were incident to one objective, the defendant may be
punished for any one of such offenses, but not for more than one.’  (People
v. Perez (1979) 23 Cal.3d 545, 551.)” 
(People v. Wynn (2010) 184
Cal.App.4th 1210, 1214–1215, italics omitted.) 
The statute does not apply to bar multiple punishments where the
defendant held multiple objectives or intents. 
(People v. Coleman (1989) 48
Cal.3d 112, 162.)  “‘Whether a course of
conduct is divisible and therefore gives rise to more than one act within the
meaning of section 654 depends on the “intent and objective” of the actor.’”  (People
v. Hairston, supra, at p. 240, quoting Neal
v. State of California (1960) 55 Cal.2d 11, 19.)  The amount of time that elapses between
criminal acts, “although not determinative on the question of whether there was
a single objective, is a relevant consideration.”  (People
v. Martin (2005) 133 Cal.App.4th 776, 781.) 
Where the offenses are separated in time, affording the defendant an “‘opportunity
to reflect and to renew his or her intent before committing’” the next offense,
the trial court may conclude that the defendant had multiple objectives and
committed more than one criminal act meriting multiple punishments.  (People
v. Andra (2007) 156 Cal.App.4th 638, 640.)

            We apply a
substantial evidence standard of review.  â€˜â€œThe determination of whether there was more
than one objective is a factual determination, which will not be reversed on
appeal unless unsupported by the evidence presented at trial.’  [Citations.]  â€˜[T]he law gives the trial court broad
latitude in making this determination.’  [Citation.]”  (People
v. Wynn, supra, 184 Cal.App.4th at p. 1215.)

            The four false
imprisonment sentences challenged by appellant were set forth in counts 2, 4,
8, and 10.  The victims of those crimes,
Llamas (count 2), Kelouwok (count 4), Lopez (count 8), and Ouendo (count
10) were all robbery victims at the 99¢ Only Store.  The evidence shows the following sequence of
events:  Llamas and Kelouwok were taken
at gunpoint from the back office to the front of the store where the safes were
located.  Llamas complied with
appellant’s order and appellant obtained money from each safe.  Appellant struck Llamas several times on the
shoulders with his gun and then forced Llamas and Kelouwok to return to the
back office.  Appellant took a cell phone
from Kelouwok, and identification, cash, keys, and a cell phone from
Llamas.  Appellant confronted Lopez as
she came out of the bathroom.  She was
ordered to the back office where appellant threatened her with his gun before
taking her cell phone.  Traylor
confronted Ouendo while she was working on the store floor.  He held a gun to her head and forced her
down.  Traylor then took Ouendo to the
break room where he proceeded to throw her to the floor and put his foot
against her head before he took her money and cell phone.

            We note that the
evidence shows the individual robberies of Llamas, Kelouwok, Lopez, and Ouendo
were unrelated to any attempt to steal from the store’s safes and in fact
occurred after appellant had obtained the money from the safes at the front of
the store.  Appellant contends that the “single
objective” of the crimes was to steal “money or property” and was part of an “indivisible and uninterrupted
course of conduct.”  While appellant’s
argument addresses why property was taken from the four named individuals it
fails to explain why their false imprisonment was necessary to achieve that
objective.  (See People v. Bamba (1997) 58 Cal.App.4th 1113, 1123 [“the essential
element of false imprisonment is restraint of the person.  Any exercise of express or implied force which
compels another person to remain where he does not wish to remain, or to go
where he does not wish to go, is false imprisonment”].)  There was ample opportunity for appellant and
Traylor to rob each of the victims without moving them around the store.  Llamas was taken from the front of the store
to the back office.  Kelouwok was taken
from the back office to the front of the store and then taken to the back office
before being robbed.  Lopez and Ouendo
were robbed only after they were physically taken to the back office and the
break room, respectively.  Nothing in the
record indicates, nor does appellant contend, that appellant’s intent to steal
from these four victims was dependent on them being taken to various locations
around the store.

            Under the
circumstances presented here, we conclude there is substantial evidence to
support the juvenile court’s finding that the false imprisonments were
additional criminal acts distinct from the robberies.  Thus, section 654 does not bar separate
punishment.

>DISPOSITION

            The
order is affirmed.

            NOT TO
BE PUBLISHED IN THE OFFICIAL REPORTS.

 

_____________________,
J. href="#_ftn5" name="_ftnref5" title="">^*

    FERNS

We
concur:

 

 

____________________________,
P. J.

            BOREN

 

____________________________,
J.

            ASHMANN-GERST