P. v. Royal

Filed 1/6/10 P. v. Royal CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of Los Angeles County. Joseph E. Di Loreto, Judge. Affirmed as modified.

John Doyle, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Scott A. Taryle, and E. Carlos Dominguez, Deputy Attorneys General, for Plaintiff and Respondent.

* * * * * * * * * *

INTRODUCTION

Appellant Marlin L. Royal appeals from his conviction of aggravated kidnapping. He contends that the trial court erred in instructing the jury with CALJIC No. 9.54, rather than CALCRIM No. 1203. Respondent contends that appellant forfeited this issue by failing to object to CALJIC No. 9.54 or request CALCRIM No. 1203, and by expressly agreeing to all CALJIC instructions to the exclusion of CALCRIM instructions. We agree with respondent that appellants failure to object to CALJIC No. 9.54 and his agreeing to the instructions given resulted in a forfeiture of the issue.

Appellant also contends that Penal Code section 654 prohibited concurrent sentences on count 2 (robbery), and thus the sentence imposed as to count 2 must be stayed.^[1] Appellant contends that section 654 also precluded both the enhancement imposed on count 1 (kidnapping for robbery) pursuant to section 12022.53, subdivision (b), and the punishment imposed for count 3 (possession of a firearm --  12021, subd. (a)(1).) He argues that either the enhancement in count 1 or the sentence for count 3 must be stayed. Respondent agrees. We reject appellants contention that the enhancement in count 1 or the sentence for count 3 must be stayed. However, we agree that the sentence imposed as to count 2 must be stayed, and we amend the judgment accordingly, and affirm the judgment as amended.

STATEMENT OF THE CASE

In a three-count information, appellant was charged in count 1 with aggravated kidnapping in violation of section 209, subdivision (b)(1) -- in this case, kidnapping to commit robbery. In count 2, appellant was charged with second degree robbery ( 211), and in count 3, he was charged with a violation of section 12021, subdivision (a)(1), felon in possession of a firearm. It was alleged as to counts 1 and 2 that appellant personally used a firearm in the commission of the crimes, within the meaning of section 12022.53, subdivision (b), based upon his three prior felony convictions. Two of the prior felony convictions were alleged pursuant to Californias Three Strikes law, sections 1170.12, subdivisions (a) through (d), and 667, subdivisions (b) through (i). Prior convictions were also alleged pursuant to section 1203, subdivision (e)(4) (denial of probation), and section 667, subdivision (a)(1), for purposes of imposing a five-year sentence enhancement for failure to remain out of prison for five years.

Prior to trial, appellant admitted the prior felony convictions. The jury found appellant guilty of all three counts and found true the allegation that he personally used a handgun in the commission of the kidnapping and robbery (counts 1 and 2). Appellant moved for a new trial based on (1) the courts refusal to instruct as to misdemeanor theft, (2) its denial of motions in limine to strike prior convictions for purposes of impeachment and to preclude referring to the alleged victims as victims, (3) insufficiency of the evidence to support the verdicts, and (4) the jurors having seen appellant in custody. Appellant also asked that the court strike the priors and sentence him only as to count 1.^[2]

On May 23, 2008, the court denied the motions and sentenced appellant to 25 years to life as to count 1, with enhancements of 10 years (firearm use) and 5 years (failure to remain out of prison for 5 years), for a total term of 40 years to life. As to count 2, the court sentenced appellant to 25 years to life, plus 5 years because of the prior felony conviction, to run concurrently with the term imposed as to count 1, for a total term of 30 years to life. As to count 3, the court imposed 25 years to life, also to run concurrently with count 1. Appellant filed a timely notice of appeal the same day.

FACTS

Because appellant challenges only the trial courts instruction on the asportation element of kidnapping, we summarize the evidence relevant to that issue.

On the afternoon of June 22, 2007, Joshua Loven and his coworker Stephen Griffin were selling home speakers for home theater systems in the parking lot of a shopping center in Long Beach. When appellant happened by on his way to one of the stores in the shopping center, Griffin asked him whether he wanted to buy speakers. Appellant told him he would consider it after he returned from the store. When appellant returned approximately 20 minutes later, he said he would buy one set, and Loven offered two for a lower price. Appellant agreed and put the speakers in the back seat of his car, but said he needed to go to the ATM to obtain cash to pay for them. Appellant told Loven he could ride with him to a nearby ATM. Loven agreed, because the ATM was nearby and in the open. He got into appellants car, a black Mercedes Benz, and directed appellant to the ATM.

Instead of stopping at the ATM, appellant pulled a gun out from under the seat, and pointed it at Lovens chest. Appellant said, Hey, Im taking your shit. Loven was frozen with fear, but managed to tell appellant to take what he wanted but not to hurt him. With Loven still in the car, appellant placed the gun back under the seat, left the parking lot and drove to a residential neighborhood about two or three blocks away.

Appellant stopped, pointed out a house, and told Loven to walk behind it. As Loven was walking toward the front of the house, appellant called him back twice and told him to go behind the house or between two houses, suggesting that he would hurt him if he did not. Loven complied and appellant drove off.

In all, Loven spent three or four minutes in appellants car. As appellant drove away, Loven noted some of the numbers on appellants license plate and jogged back to the shopping center, where he found Griffin and told him what had happened.^[3] Griffin called their employer and then accompanied Loven to the police station to report the crime.

DISCUSSION

1. Jury Instructions

Appellant contends that the trial court erred in instructing the jury with CALJIC No. 9.54 instead of CALCRIM No. 1203. Both instructions define aggravated kidnapping under section 209, subdivision (b), which provides in relevant part: (1)  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. [] (2)  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.

The elements of aggravated kidnapping include the elements of simple kidnapping ( 207). (People v. Bailey (1974) 38 Cal.App.3d 693, 699.) Both crimes require the movement of the victim for a substantial distance. (People v. Dominguez (2006) 39 Cal.4th 1141, 1152 (Dominguez).) Aggravated kidnapping has two additional essential elements: [(1)] the movement cannot be merely incidental to the target crime, and [(2)] the movement must substantially increase the risk of harm to the victim. (Dominguez,at p. 1153.)

The relevant portion of CALJIC No. 9.54 which the trial court modified and read is as follows:^[4]

Kidnapping is the unlawful movement by physical force of a person without [that] persons consent for a substantial distance where the movement is not merely incidental to the commission of the robbery and where the movement substantially increases the risk of harm to the person moved[,] over and above [that necessarily present in] the crime of robbery itself.  [] . . .  []  Kidnapping is also the unlawful compulsion of another person without [that persons] consent [a]nd because of a reasonable apprehension of harm[,] to move for a substantial distance where such movement is not merely incidental to the commission of the robbery and where the movement substantially increase[s] the risk of harm to the person moved over[,] and above that necessarily present in the crime of robbery itself. [] Brief movement[s] to facilitate [the] crime of robbery are incidental to the commission of the robbery. On the other hand, movement[s to] facilitate[] the robbery that are for a substantial distance rather than brief are not incidental to the commission of the robbery. [] In order to prove this crime, each of the following elements must be proved: [] [1. A] person was moved by the use of physical force;  []  [1. A] person was compelled to move because [of a] reasonable [apprehension] of harm[;] [] [2. T]he movement of [that] person was caused with the specific intent to commit [] robbery[,] and [] the person causing the movement had the required specific intent when the movement commenced[;]  [] [3.] The movement of the person was without [that] persons consent[;]  []  [4.] The movement of the person was for a substantial distance[,] that is, a distance more than slight, brief or trivial; and  [] [5. T]he movement substantially increased the risk of harm to the person moved[,] over and above that necessarily present in the crime of robbery itself.

Appellant focuses on element four -- that the movement of the person was for a substantial distance, that is, a distance more than slight, brief, or trivial. He contends that the instruction tells the jury that any movement that was more than slight or trivial was substantial as a matter of law. Instead of that language, appellant contends, the court should have given CALCRIM No. 1203, which provides the elements of aggravated kidnapping and explains: As used here, substantial distance means more than a slight or trivial distance.

Appellant acknowledges that he did not request CALCRIM No. 1203 or object to CALJIC No. 9.54,^[5]but relies upon section 1259, which provides: Upon an appeal taken by the defendant, the appellate court may . . . review any instruction given, refused or modified, even though no objection was made thereto in the lower court, if the substantial rights of the defendant were affected thereby. Appellant contends that his substantial rights were affected because the CALJIC language takes the factual issue -- what constitutes substantial -- away from the jury, whereas CALCRIMs language does not. We find no significant difference between the two instructions.

In People v. Morgan (2007) 42 Cal.4th 593, 605-607, the California Supreme Court rejected a vagueness challenge to CALJIC No. 9.50 (simple kidnapping), which defines substantial distance in the same words as CALJIC No. 9.54, i.e., to move for a substantial distance, that is, a distance more than slight or trivial. The court explained that in the context of our simple kidnapping statute, where the adjective substantial modifies the noun distance, the word substantial means a significant amount as contrasted with a distance that is trivial . . . . (Morgan,at pp. 606-607.) The courts explanation makes it clear that substantial is an antonym of trivial. Thus, the same meaning is imparted whether the instruction states that a substantial distance is one that is more than trivial, as in CALJIC No. 9.54, or whether the instruction states that a substantial distance means more than a trivial distance, as in CALCRIM No. 1203. We conclude that CALJIC No. 9.54 correctly states the definition of substantial distance.

Appellant also argues that CALCRIM No. 1203 is the better instruction because it tells the jury to consider all the circumstances, including whether the movement was merely incidental to the robbery or done solely to facilitate the robbery. CALJIC No. 9.54 does not leave out these elements of aggravated kidnapping. The court instructed the jury that the movement must not be merely incidental to the commission of the robbery and where the movement substantially increaseD the risk of harm to the person moved over and above that necessarily present in the crime of robbery itself, and that [b]rief movement[s] to facilitate [the] crime of robbery are incidental to the commission of the robbery. Thus, the CALJIC instruction correctly informs the jury of the essential factors that elevate simple kidnapping to aggravated kidnapping. (Dominguez, supra, 39 Cal.4th at p. 1152; see also People v. Daniels (1969) 71 Cal.2d 1119, 1139-1140.)

Although CALJIC No. 9.54 does not tell the jury to consider all the circumstances, the court instructed the jury elsewhere that in determining whether the prosecution had met its burden of proof beyond a reasonable doubt, it must compare and consider all the evidence. Thus, the jury knew that it should consider all the facts. Appellants opinion that CALCRIM No. 1203 was worded better should have been presented to the trial court, and because he failed to do so, section 1259 does not apply. (See People v. Richardson(2008)43 Cal.4th 959, 1022.) Appellants failure to object to CALJIC No. 9.54 -- and indeed, his having agreed to all CALJIC instructions -- has resulted in a forfeiture of the issue. (Richardson, at pp. 1022-1023.)

2. Section 654

Appellant contends that section 654 prohibited the imposition of concurrent sentences on count 1 (kidnapping for robbery) and count 2 (robbery), and that count 2 must therefore be stayed. Respondent agrees.

An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision. ( 654, subd. (a).) Section 654 prohibits punishment for two crimes arising from a single, indivisible course of conduct. (See People v. Latimer (1993) 5 Cal.4th 1203, 1208.) A course of criminal conduct is indivisible where all the offenses are incident to one objective. (Neal v. State of California (1960) 55 Cal.2d 11, 18.)

When a defendant has been sentenced in violation of section 654, the unauthorized sentence must be stayed, and the sentence that provides for the longest term of imprisonment should remain executed. ( 654, subd. (a).) A concurrent sentence simply does not satisfy the prohibition against double punishment. [Citations.] Where a trial court erroneously fails to stay terms subject to section 654, the appellate court must stay sentence on the lesser offenses while permitting execution of the greater offense consistent with the intent of the sentencing court. [Citation.] (People v. Pena (1992) 7 Cal.App.4th 1294, 1312.)

Appellant was convicted of kidnapping Loven in order to rob him, as well as the separate crime of robbing him, both during a continuous course of conduct. The evidence did not show that appellant acted with any purpose other than robbery. Thus, the robbery sentence under count 2 must be stayed. (People v. Lewis (2008) 43 Cal.4th 415, 519.)

Appellant also contends that section 654 prohibited the imposition of both the enhancement of his sentence as to count 1 for the use of a firearm, pursuant to section 12022.53, subdivision (b), and the sentence as to count 3 ( 12021, subd. (a)(1), felon in possession of a firearm). He argues that one or the other must be stayed. Respondent agrees and suggests that count 3 should be stayed.

We do not agree. The sentence enhancement for the use of a firearm and the punishment for felon in possession of a firearm are properly imposed and executed where the evidence shows a possession distinctly antecedent and separate from the primary offense. . . . [Citation.] (People v. Bradford (1976) 17 Cal.3d 8, 22.) One of the terms must be stayed only where the evidence demonstrates at most that fortuitous circumstances put the firearm in the defendants hand only at the instant of committing another offense. . . . [Citation.] (People v. Jones (2002) 103 Cal.App.4th 1139, 1143.)

Here, the evidence showed that appellant had the gun under the seat of his car before Loven entered the car. There was no evidence that Loven was armed or that appellant wrested the gun from him. Thus, because appellants possession was distinctly antecedent and separate, it was proper to punish him for being a felon in possession of a firearm prior to kidnapping Loven, and to enhance his sentence for his use of a firearm to kidnap Loven. (People v. Jones, supra, 103 Cal.App.4th at p. 1143.)

DISPOSITION

The judgment is modified by staying execution of the sentence imposed on count 2. The superior court is directed to prepare an amended abstract of judgment and forward it to the Department of Corrections. As so modified, the judgment is affirmed.

MOHR, J.^*

WE CONCUR:

FLIER, ACTING P. J.

BIGELOW, J.

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^[1] All statutory references are to the Penal Code.

^[2] See People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 504 (trial court may strike or vacate a prior strike for purposes of sentencing under the Three Strikes law, subject to compliance with  1385.)

^[3] When an off-duty Long Beach police officer observed Loven walk away from and then toward the Mercedes Benz, he noted the license plate number. Appellant was arrested in Arizona after a law enforcement officer there observed him driving the black Mercedes, called in the license number, found an outstanding warrant, and initiated a traffic stop.

^[4] Several words and phrases of CALJIC No. 9.54 were either misread by the judge or not properly transcribed. We include within the brackets such words and phrase as they are set forth in the written instructions which were provided to the jury during deliberations.

^[5] In fact, counsel agreed to submit CALJIC instructions instead of CALCRIM instructions.

^* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.