P. v. Superior Court
Filed 8/14/12 P. v. Superior Court CA2/4
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE
PEOPLE,
Petitioner,
v.
THE
SUPERIOR COURT OF
LOS ANGELES COUNTY,
Respondent;
B241126
(Los Angeles County
Super. Ct. No. VA121901)
CRAIG
HUNT,
Real Party in Interest.
ORIGINAL PROCEEDINGS in mandate. Peter Espinoza, Judge. Writ granted.
Steve Cooley, District Attorney, Irene
Wakabayashi and Phyllis C. Asayama, Deputy District Attorneys, for Petitioner.
No appearance for Respondent.
Ronald L. Brown, Public Defender,
Albert J. Menaster, Christopher Capestro and Albert Camacho, Jr., Deputy Public
Defenders, for Real Party in Interest.
Real party in
interest Craig Hunt (Hunt) was charged by information with four counts: count 1, kidnapping
to commit a robbery on October 1, 2011 (Pen. Code, § 209, subd.
(b)(1));
count 2, first degree residential robbery
on October 1, 2011 (§ 211); count 4,
first degree burglary on October 30, 2009 (§ 459); and count 5, first
degree residential robbery on October 30, 2009 (§ 211). The People petition for a writ of mandate to
overturn the order of the superior court, granting Hunt’s section 995 motion to
set aside count 1. We grant the petition.
FACTUAL AND PROCEDURAL
BACKGROUND
Preliminary Hearing Evidence
On October 1, 2011, Maria Elena Dupone lived in a
downstairs, one-room apartment on Vinevale Avenue in the city of Bell.
Her apartment is one of two units (the other being upstairs) located
behind a large house that sits at the front of the property.
Around 7:20 a.m., Dupone was sitting outside her
apartment drinking coffee when someone wearing a mask, later identified as
Hunt, grabbed her by the neck. He held a
gun to her head, told her not to yell, and dragged her into her apartment, past
the kitchen and to her bedroom – a distance of approximately 25 to 30
steps. There, he demanded money. She took some money from a drawer and gave it
to him. He then pushed her onto the bed,
tied her hands, and gagged her.
A neighbor, Lucy Velina Serrano, was
awakened by the sound of glass breaking and a woman screaming for help in
Spanish. She called 911. City of Bell Police Officer Mark Logan and two other officers responded to
Dupone’s address and split up to investigate.
Officer Logan went to the back of the property and saw a broken coffee
mug and some liquid on the ground in front of Dupone’s apartment door. He also noticed that a metal security door
and the door to the apartment were open.
Officer Logan went to get one of the
other officers, Officer Jonathan Walker.
When they returned, the metal security door was closed. Officer Logan saw Hunt walking away, and
ordered him to stop at gunpoint. Hunt
was wearing black clothing, including black gloves. As Officer Walker handcuffed Hunt, Officer
Logan noticed a handgun in Hunt’s pocket, which was later determined to be a BB
or pellet gun.
After Officer Walker advised Hunt of
his Miranda
lady,” and that she was tied up in the bedroom. Officer Walker found Dupone past the kitchen,
at the end of the hallway, sitting on the floor outside her bedroom, bound and
gagged.
Hunt was transported to the police
station, where $205 in cash and iPod earphones were found on his person. Officer Walker interviewed Hunt at the
station. Hunt said that he had jumped
over the wall behind Dupone’s house to rob her.
He told Officer Walker that he shoved Dupone, held a gun to her head,
dragged her down the hallway, and made her open a locked drawer to give him
money. He then tied her up and gagged
her so she could not scream for help.
When Officer Walker entered Dupone’s
name into the database to write his report, he learned that she had earlier
been the victim of similar crime.
According to Dupone, a little more than two years earlier, on October
30, 2009, she arrived home from work with a friend and saw that her clothes
were scattered all over her apartment. A
man wearing a ski mask and holding a machete emerged from her closet,
threatened her and her friend, and demanded money. Dupone gave him $200, and he left. Dupone subsequently learned that he had cut
the telephone wires.
After learning of the earlier crime,
Officer Walker interviewed Hunt again.
Hunt admitted that the October 2011 crime was not the first time he had
robbed Dupone. He told Officer Walker
about the previous robbery and provided a written statement.
Procedure
At the preliminary hearing,
kidnapping to commit robbery on October 1, 2011 (§ 209, subd. (b)(1)). He argued that Hunt’s movement of Dupone from
outside her apartment and into her bedroom was incidental to the robbery and
was thus insufficient to support a charge of aggravated kidnapping. The magistrate agreed and granted the motion,
but held Hunt to answer on the other charges.
Thereafter, the district attorney
filed an information charging Hunt with the counts to which he was held to
answer, and also refiled, as count 1, the charge of kidnapping for
robbery. Hunt filed a section 995 motion
to dismiss the latter charge. The
superior court granted the motion, reasoning (as had the magistrate) that Hunt’s
movement of Dupone was incidental to the robbery. The court granted a stay of its ruling for
the People to seek a writ. The People
petitioned for a writ of mandate to this court.
We issued an alternative writ of mandate ordering the superior court to
vacate its May 3, 2012 order granting Hunt’s motion, or to
show cause why a peremptory writ of mandate should not issue. The superior court did not vacate its ruling,
and the matter is now before us.
We conclude that the superior court
erred in granting Hunt’s section 995 motion to dismiss the charge of kidnapping
for the purpose of robbery. “Section 995
provides that an information ‘shall be set aside’ if the defendant has been
‘committed without reasonable or probable cause.’ ‘“‘Probable cause is shown if a man of
ordinary caution or prudence would be led to believe and conscientiously
entertain a strong suspicion of the guilt of the accused.’” [Citations.]’
[Citation.]” (
Cal.App.4th 825, 835 (Plengsangtip).)
“In determining if charges in an
information can withstand a motion under section 995, neither the superior
court nor the appellate court may reweigh the evidence or determine the
credibility of the witnesses.
[Citations.] Ordinarily, if there
is some evidence in support of the information, the reviewing court will not inquire
into its sufficiency. [Citations.] Thus, an indictment or information should be
set aside only when there is a total absence of evidence to support a necessary
element of the offense charged.
[Citations.]
“‘[A]lthough there must be some
showing as to the existence of each element of the charged crime [citation]
such a showing may be made by means of circumstantial evidence supportive of
reasonable inferences on the part of the magistrate.’ [Citation.]
‘Every legitimate inference that may be drawn from the evidence must be
drawn in favor of the information.’
[Citations.] Thus, the ultimate
test is that ‘“‘[a]n information will not be set aside or prosecution thereon prohibited
if there is some rational ground for assuming the possibility that an offense
has been committed and the accused is guilty of it.’”’ [Citation.]”
(People v. Superior Court (
italics omitted (Jurado).)
“[K]idnapping for robbery, or
aggravated kidnapping, require[s] movement of the victim that (1) was not
merely incidental to the commission of the robbery, and (2) substantially
increased the risk of harm over and above that necessarily present in the crime
of robbery itself. [Citations.] These two elements are not mutually exclusive
but are interrelated. [Citations.]” (People
v. Vines (2011) 51 Cal.4th 830, 869-870; § 209, subd. (b); see also
823, 833 (Leavel).)
“‘With regard to the first prong, the
jury considers the “scope and nature” of the movement, which includes the
actual distance a victim is moved.
[Citations.] There is, however,
no minimum distance a defendant must move a victim to satisfy the first prong.’ [Citation.]
We also consider the ‘context of the environment in which the movement
occurred.’ [Citation.] ‘This standard suggests a multifaceted,
qualitative evaluation rather than a simple quantitative assessment.’ [Citation.]
“The second prong ‘“‘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. [Citations.]
The fact that these dangers do not in fact materialize does not, of
course, mean that the risk of harm was not increased.’”’ [Citation.]”
(Leavel, supra, 203 Cal.App.4th at pp. 833-834.)
Drawing every legitimate inference
from the evidence in favor of the information (Jurado, supra, 4
Cal.App.4th at p. 1226), and understanding the interrelated nature of the
inquiries whether the forced movement of Dupone was incidental to the robbery
and substantially increased the risk of harm to her (Leavel, supra, 203 Cal.App.4th at pp. 833-834), there is probable
cause to believe that Hunt’s movement of Dupone satisfied section 209,
subdivision (b)(1). The context here is
significant. Without first demanding
money, Hunt accosted Dupone while she was drinking coffee outside her apartment,
where they were potentially visible to others, and Dupone could try to summon
help or flee. Hunt held a gun (later
determined to be a BB or pellet gun) to Dupone’s head, told her not to yell,
and dragged her inside the apartment, past the kitchen, down the hallway, and
into her bedroom, a distance of about 25 to 30 steps. Inside the apartment, Dupone was concealed in
an enclosed area, away from the view and hearing of others, and at much greater
danger and disadvantage should she try to flee.
Hunt did not demand money until they were in the bedroom. When he did, Dupone took money from a drawer
and gave it to him. He then bound and
gagged her, and left.
From this evidence, there is
reasonable cause to believe that Hunt’s movement of Dupone achieved the
following goals: it decreased the risk of detection (moving her from the open
to a place of concealment in her own home); it increased the risk of harm to
Dupone (she was isolated and alone with Hunt, who held a weapon, and she was
ultimately bound and gagged, a condition that itself could result in injury); it increased the danger should
Dupone try to escape (the area was enclosed, making it more likely Dupone would
be apprehended and injured if she tried to flee); and it enhanced Hunt’s
opportunity to commit other crimes (Dupone was bound and gagged in her own
residence and rendered helpless). (See
1141, 1152.) Thus, the evidence was
sufficient to establish probable cause to believe that the forced movement of
Dupone 25 to 30 steps from the patio outside her apartment, through the kitchen,
down the hallway, and into her bedroom, was not merely incidental to the
robbery, but rather, in the overall context, constituted “substantial”
movement, and resulted in a substantially increased risk of harm beyond that
inherent in the crime of robbery itself.
(Dominguez, supra, at p.
1152.)
Hunt contends that the movement of
Dupone into the bedroom was merely incidental to the commission of the robbery
because he learned from the prior robbery that Dupone’s money was in her
bedroom and took her there in order to commit the robbery. He also contends that there was no increased
risk of harm because the sole purpose of the asportation was to commit the
robbery. Perhaps a jury, considering
these arguments, might find the evidence insufficient to prove kidnapping for
robbery beyond a reasonable doubt.
Regardless, at this stage of the proceeding we have no doubt that there
is some rational ground for assuming the possibility that Hunt’s forcible
movement of Dupone was more than incidental to the robbery and substantially
increased her risk of harm beyond that inherent in robbery. (Jurado,
supra, 4 Cal.App.4th at p.
1226.) We therefore grant the People’s
petition for a writ of mandate.
Let a
peremptory writ of mandate issue directing respondent court to vacate its order
granting Hunt’s section 995 motion to set aside count 1 of the information, and
to issue a new order denying the motion, reinstating count 1, and setting the
matter for trial.
WILLHITE,
J.
We
concur:
EPSTEIN, P. J.
SUZUKAWA, J.
name="_ftn1" title="">[1] All further statutory references are
to the Penal Code.
name="_ftn2" title="">[2] Count 3 was dismissed on the People’s
motion.
