P. v. Hicks
Filed 12/27/12 P.
v. Hicks CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
THREE
THE PEOPLE,
Plaintiff
and Respondent,
v.
ANTHONY HICKS
Defendant
and Appellant.
B237736
(Los Angeles County
Super. Ct. No. TA1188861 )
APPEAL from a judgment of the Superior Court of
County, John T. Doyle, Judge. Reversed in
part and affirmed in part.
Lynette Gladd
Moore, 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, Margret E. Maxwell and Thomas C.
Hsieh, Deputy Attorneys General, for Plaintiff and Respondent.
Anthony Hicks appeals the judgment entered
following his conviction by jury of robbery,
false imprisonment by violence, kidnapping for the purpose of robbery and
criminal threats. (Pen. Code, §§
211, 236, 237, subd. (b), 209, subd. (b)(1), 422.)
firearm in the commission of robbery, false imprisonment by violence and
kidnapping for the purpose of robbery.
The trial court sentenced Hicks to life with the possibility of parole
for kidnapping for the purpose of robbery, plus 10 years for the
associated firearm enhancement. (§
12022.53, subd. (b).) The trial court
imposed concurrent terms on the remaining counts.
Hicks contends the conviction of kidnapping for the purpose
of robbery is not supported by sufficient evidence, the conviction of false
imprisonment by violence must be reversed as a lesser offense included within
kidnapping for the purpose of robbery, the concurrent term imposed for robbery
must be stayed pursuant to section 654, the trial court erred in failing to
award presentence custody credit with
respect to the concurrent terms, and the abstract of judgment must be corrected
to reflect a conviction of kidnapping for the purpose of robbery in violation
of section 209, subdivision (b)(1).
We reject the claim of insufficient
evidence to support the conviction of kidnapping for the purpose of robbery
but accept the People’s concession the remaining claims are meritorious. We also agree with the People’s assertion a
$40 court security assessment (§ 1465.8, subd. (a)(1)) and a $30 court facility
assessment (Gov. Code, § 70373) must be imposed as to counts 1 and 6. We therefore reverse the conviction of false
imprisonment by violence in count 3, order the term imposed with respect to
count 1 stayed pursuant to section 654, modify the abstract of judgment to
reflect custody credit against the concurrent terms, and order a $40 court
security assessment (§ 1465.8, subd. (a)(1)) and a $30 court facility
assessment (Gov. Code, § 70373) as to counts 1 and 6. In all other respects, we affirm the
judgment.
BACKGROUND
On
the morning of July 4, 2011, Saquana Scott
was walking on Alondra Boulevard to her home in Los Angeles. She stopped to talk to friends at Thorson Avenue and noticed a
white, two-door car across the street. After parting company with her friends, she
saw the same car at Alondra Boulevard and Harris Avenue. As she walked on Thorson Avenue, the car drove past
Scott and pulled into a driveway, cutting Scott off. Hicks exited the passenger seat and
approached her. Initially, Hicks was
friendly but he produced a pistol and said:
“It’s a jack move. Get your ass
in the car.†Hicks threatened to kill
Scott if she did not get into the car.
Hicks got into the rear passenger seat and Scott sat in the front
passenger seat. Hicks took Scott’s
purse, put his hand on her neck and put the gun against the back of her
head. The car then backed out of the
driveway and went south on Thorson Avenue. Hicks repeatedly told
Scott to cooperate or he would kill her.
Scott turned in the seat, reached back, touched the gun and
asked Hicks, “Are you serious.†Hicks said, “What you think this is? A game?
This shit is real.†The driver
turned east on Elizabeth
Street and then south
on Harris Avenue. Scott said she had
$2,000 in her home and asked Hicks and the driver to let her out of the
car. The driver appeared interested
but Hicks said, “No, we gonna dump this bitch off around the corner.â€
As the driver
proceeded south on Harris
Avenue, he took
Scott’s jewelry, camera, cell phone and the contents of her purse. The driver
turned west on Pauline
Street and continued
to Caress Avenue where Scott was
released. Scott opened the door and
screamed as she ran from the car.
At about 1:30 p.m., after Scott had
been interviewed by police officers, Scott began walking the neighborhood in
search of the white car but was unable to locate it. She returned home, changed her clothes and
again searched for the car. In an alley
behind an apartment building, Scott saw Hicks in the passenger seat of a green
car that was backing into a parking spot.
When they made eye contact Hicks said,
“Oh, so you fucking following me? I’ll
kill you.†Scott ran to a restaurant and
called the police.
When Scott left the
restaurant, the driver of the green car, Hicks’s sister, confronted Scott and
prepared to fight. Scott took the keys
to the green car and ran. Deputy sheriffs
arrived and eventually located Hicks hiding in his sister’s apartment. Property taken in the robbery was found in
the apartment.
Hicks presented a
defense. However, the evidence presented
is not necessary to resolve the issues raised on appeal.
DISCUSSION
1.
purpose of robbery.
A conviction of
requires proof that: (1) a person was
unlawfully moved by the use of physical force or fear; (2) the movement
was without the person’s consent; and, (3) the movement of
the person was substantial in character.
(People v. Martinez (1999) 20
Cal.4th 225, 237; § 207, subd.
(a).) Proof of aggravated
requires movement of the victim that is not merely
substantially increases the risk of harm over and above that necessarily
present in the crime of robbery. (Martinez,
supra,
at p. 233; § 209, subd. (b)(2).)
In
determining whether there was a substantial increase in the risk of harm, the
trier of fact may consider “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.†(People v. Martinez, supra, 20 Cal.4th
at p. 233; see also People v. Rayford (1994) 9 Cal.4th 1, 12,
13-14.) “The
fact that these dangers do not in fact materialize does not, of course, mean
that the risk of harm was not increased.â€
(Id. at p. 14.)
Hicks contends the movement of Scott into the car served only
to secure her, conceal the commission of the robbery from bystanders who might
intervene, and permit the removal of her property without risking her
escape. He also claims Scott was held in
the vehicle only for the amount of time it took to rob her and the movement did
not significantly change Scott’s location as she was driven only a few blocks
before she was released unharmed. Hicks
asserts there was no excess or gratuitous movement of Scott beyond that necessary
to secure her property. He claims the
removal of Scott from the public street decreased
the likelihood she would be harmed or attempt to escape. Thus, the movement of Scott merely
facilitated the robbery.
We are not persuaded.
With respect to whether the movement was incidental to the robbery, Hicks cites cases in which movement arguably
was necessary to commit the robbery.
(See People v.
Washington (2005) 127
Cal.App.4th 290
[movement of victim within a bank to open a vault
necessary to commit bank robbery]; People v. Hoard (2002) 103
Cal.App.4th 599 [employees of a jewelry store moved 50 feet to a back office
where they were bound to permit the defendant to commit the robbery].) Here, the movement of Scott was unnecessary
as Hicks could have robbed Scott where
he found her on the street. Thus,
movement of Scott into the car was not incidental to the robbery.
Regarding increase in the risk of harm, Hicks moved Scott at gunpoint from the relative safety of a
city sidewalk to a car driven by his accomplice. Hicks
threatened to kill Scott if she did not get into the car and repeatedly
threatened to kill her after she was in the vehicle. Thus, the movement itself presented danger
that would not have been present had Hicks robbed Scott on the street.
Also, contrary to
Hicks’s argument, the removal of Scott from the street decreased the likelihood the robbery would be detected, increased the
possibility Scott might attempt to escape, and increased the possibility Hicks
or his companion might commit other crimes, such as a sexual assault. (See People v. Salazar (1995) 33
Cal.App.4th 341, 348 [movement of victim from exterior walkway to a motel room
decreased likelihood of detection and presented an opportunity for the
commission of additional crimes]; People v. Dominguez (2006) 39 Cal.4th
1141, 1153 [victim moved from a relatively open area alongside the road to a
place significantly more secluded, decreasing the possibility of detection,
escape or rescue]; People v. Aguilar (2004) 120 Cal.App.4th 1044, 1048,
[victim moved 133 feet into unlit area where there was less likelihood of
detection]; People v. Jones (1999) 75 Cal.App.4th 616, 629 [victim in
parking lot moved 40 feet in order to push her into a car, removing her from
public view and increasing the risk defendant could drive away with victim].)
Hicks complains the distance involved was not
substantial. However, the movement of
Scott from the street to the vehicle substantially altered her environment and,
“[w]here movement changes a victim’s environment, it does not have to be great
in distance to be substantial.†(People
v. Shadden (2001) 93 Cal.App.4th 164, 169.)
Moreover, although Hicks minimizes the distance Scott was moved, it
appears to have been approximately four city blocks, which is not an
immediately upon the completion of the robbery as Hicks claims. Her property was taken while the car was on Harris Avenue. The driver
thereafter turned onto Pauline Street and proceeded to Caress Avenue before Scott was released.
Hicks’s reliance on People v. Timmons
(1971)
4 Cal.3d 411, is misplaced. In Timmons,
the defendant entered a car occupied by two individuals, robbed them as the
vehicle proceeded slowly for five blocks and then exited the vehicle. Timmons
noted the victims simply drove their own vehicle along a city street in broad
daylight while the defendant committed the robbery. Neither victim observed a weapon and there
was no hot pursuit, high-speed chase or reckless driving. Timmons
concluded “this brief asportation may conceivably have increased the risk in
some slight degree beyond that inherent in the commission of the robberies, but
it cannot be said to have ‘substantially’ increased that risk.†(Id. at p. 416, fn. omitted.)
Here, Hicks did not
enter a car driven by Scott and direct her to continue driving. Rather, he abducted her at gunpoint. As previously indicated, this change in
environment presented dangers that are not inherent in the crime of
robbery. Thus, Timmons
does not assist
Hicks.
In sum, the evidence
supports the jury’s finding the movement of Scott was not merely incidental to
the robbery and substantially increased the risk of harm beyond that inherent
in the crime of robbery.
2.
Hicks contends the conviction of false
imprisonment by violence in count 3 must be reversed because it is a lesser
offense included within kidnapping for the purpose of robbery in count 5. The People concede the point, noting the
prosecutor did not distinguish the acts required to convict Hicks of kidnapping
for the purpose of robbery from the acts required to convict Hicks of
violence should be reversed. (See People v. Shadden, supra, 93 Cal.App.4th at p. 171; People
v. Magana (1991) 230 Cal.App.3d
1117, 1120-1121; People v.
Patrick (1981) 126 Cal.App.3d
952, 965.)
The People’s
concession is well taken. We shall
therefore reverse the conviction of false imprisonment by violence in count
3.
3.
Hicks contends the
concurrent sentence for robbery in count 1 should be stayed pursuant to section
654 because it was part of the same continuous course of conduct punished in
count 5, kidnapping for the purpose of robbery.
The People concede the point and it appears their concession is
appropriate. (See People v. Lewis (2008)
43 Cal.4th 415, 519 [section 654 bars punishment for both kidnapping for
the purpose of robbery and robbery of the same victim].) We shall order the concurrent term imposed
for robbery stayed pursuant to section 654.
4.
Hicks is
entitled to custody credit on the concurrent sentences.
Hicks was awarded 179 days of presentence custody credit
against the indeterminate sentence imposed for
kidnapping for the purpose of robbery in count 5. The trial court did not award Hicks
presentence custody credit against the concurrent sentences. Hicks contends, and
the People concede, he is entitled to the same presentence custody credit on
each sentence. (People v. Schuler (1977)
76 Cal.App.3d 324, 330 [“It is a basic rule that where an accused person is
held in custody on a number of charges and upon conviction he is ordered
to serve concurrent sentences, the time to be credited pursuant to section
2900.5 must be credited to each of themâ€]; People v. Edwards (1981)
117 Cal.App.3d 436, 450 [defendant is entitled to conduct credit under section
4019 as to concurrent determinate terms].)
We accept the People’s concession and shall order the
abstract of judgment modified accordingly.
5. The
abstract of judgment must be corrected to reflect a violation of section 209,
subdivision (b)(1) in count 5.
Hicks contends, and
the People concede, the abstract of
judgment should be corrected with respect to count 5 to reflect a violation of
section 209, subdivision (b)(1), rather than section “29(B)(1).†The People’s concession is well taken. We shall order the abstract of judgment
corrected. (People v.
Mitchell (2001) 26 Cal.4th 181, 185
[clerical errors may be corrected at any time].)
6. The abstract of judgment must be modified to reflect additional assessments.
The trial court
ordered Hicks to pay a $40 court security assessment (§ 1465.8, subd. (a)(1))
and a $30 court facility assessment (Gov. Code, § 70373) as to count 5
only. The People contend the abstract of
judgment must be modified to reflect similar assessments as to counts 1 and
6. The point is well taken.
Section 1465.8,
subdivision (a)(1), states “an assessment of forty dollars ($40) shall be
imposed on every conviction for a criminal offense, including a traffic
offense, except parking offenses . . . .â€
Government Code section 70373, subdivision (a)(1) states an assessment
in the amount of $30 “shall be imposed on every conviction for a criminal
offense, including a traffic offense, except parking offenses . . . .â€
Because
these assessments are mandatory, their omission constitutes an unauthorized
sentence which may be corrected at any time.
(People v. Castellanos (2009)
175 Cal.App.4th 1524, 1530; People v.
Valenzuela (2009) 172 Cal.App.4th 1246, 1249.) We shall order the abstract of judgment
amended to include a $40 court security assessment and a $30 court facility
assessment as to counts 1 and 6.
DISPOSITION
The conviction of false imprisonment
by violence in count 3 is reversed; the concurrent term imposed on count 1 is
ordered stayed pursuant to section 654; Hicks is awarded presentence custody
credit of 179 days with respect to the concurrent sentence imposed on count 6;
and, as to counts 1 and 6, a $40 court security assessment (§ 1465.8,
subd. (a)(1)) and a $30 court facility assessment (Gov. Code, § 70373) are
ordered imposed. In all other respects,
the judgment is affirmed. The clerk of
the superior court shall prepare and forward to the
an amended abstract of judgment reflecting these modifications.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
KLEIN,
P. J.
We concur:
KITCHING,
J.
ALDRICH,
J.
name="_ftn1" title="">[1] Subsequent unspecified
statutory references are to the Penal Code.
