P. v. Riley
Filed 12/9/13 P. v. Riley CA4/2
NOT TO BE PUBLISHED IN OFFICIAL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opinion has not been certified for publication or ordered published for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.
IN THE COURT OF APPEAL OF THE
STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
DEWAYNE MAURICE
RILEY,
Defendant and Appellant.
E056633
(Super.Ct.No. FSB1100293)
OPINION
APPEAL
from the Superior Court of
County. Duke D. Rouse,
Judge. (Retired judge of the San
Bernardino Super. Ct. assigned by the Chief
Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed in part; reversed in part with
directions.
Richard
de la Sota, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Meagan J. Beale, and
William M. Wood, Deputy Attorneys General, for Plaintiff and Respondent.
I
INTRODUCTION
A
jury convicted defendant Dewayne Maurice Riley of 12 offenses arising from the gang-related
robbery of about $169 from a Jack in the Box restaurant, while accompanied by
codefendant Calvin Ray Vance, a fellow gang member.
prison term of 243 years (225 years to life plus 18 years).
On appeal defendant
challenges the five convictions of aggravated kidnapping for robbery (§ 209,
subd. (b)(1), counts 1 through 5). We
reverse defendant’s conviction on count 1 for aggravated kidnapping and order
the trial court to impose the stayed sentence for robbery (§ 211) on count 6. Otherwise, we reject defendant’s contentions
and affirm the judgment.
II
STATEMENT OF FACTS
A. The Jack in the Box
Robbery
About 9:00 p.m. on January
18, 2011, five employees were working at a Jack in the Box restaurant located
in Colton, California: Javid Bholat, the
manager; Monica Ramirez, the cashier; Guadalupe Moreno and Carlos Melendez,
both cooks; and Ariadne Cedillo, the team leader.
In addition to a kitchen
area, the food restaurant has an interior manager’s office, five by 13 feet,
with two safes. The sink area is behind
the office and the break room is behind the sink area. The sink area and the break room are at the
back of the restaurant.
Bholat, Melendez and Cedillo
were standing in the kitchen near the deep-fat fryer. Near the back of the restaurant, Moreno was
washing dishes at the sinks and Ramirez was coming out of the break room. A hooded, masked man—wearing gloves and
carrying a handgun—jumped over the front counter, demanded money, and herded
all five employees into the manager’s office in the center of the restaurant. All the employees were afraid and felt
threatened.
Bholat, the manager,
testified that the gunman singled him out and, pointing the gun, asked, “Where
is the money?†Although there were two
open cash registers at the counter and the drive-through window, Bholat told
him there was cash in a safe in the office.
At direction of the gunman, Bholat and the other employees went into the
office.
After Bholat opened one safe
and gave the robber the small amount of money ($17) inside, the robber demanded
money from the other safe. Bholat explained
that it was equipped with a 10-minute delay.
When the robber objected to waiting, Bholat instructed Cedillo to get
money from the cash register at the counter.
Cedillo retrieved some cash and gave it to the robber who jumped the counter
and ran out the north door of the restaurant.
While Bholat called 911,
Cedillo watched the robber get in a black four-door vehicle positioned outside
the north door. Defendant later
identified the car as a Chevrolet Caprice, owned by codefendant Vance’s
mother. The vehicle left the restaurant
and proceeded at a high speed to the 215 freeway.
B. The Apprehension of Defendant
The black Caprice led two Colton police officers, Gary Gruenzner
and Roberto Dimas, in a high speed chase on the freeway until the Caprice exited
the freeway and collided with a truck before stopping. After the collision, the truck driver saw a
person exit the black vehicle and take off running.
When Dimas arrived at the
scene, he watched a Black male, identified as defendant, exit on the driver’s
side and start running. The front
passenger door had been damaged and could only be opened by force. Dimas chased defendant and captured him in
the backyard of a nearby house, where he was taken into custody after a brief
struggle. The police found a black
cotton glove near the scene. Defendant had
a wad of cash
name="_ftnref3" title="">[3] in his pocket, corresponding to the money that
Cedillo had given the masked robber. Defendant
wore a pair of Nike shoes, which matched the shoe print lifted from the dining
room floor of the restaurant.
Vance was discovered hiding
next to a hedge in a nearby church courtyard.
The Caprice contained a hooded sweatshirt, various hats and gloves, and
a loaded .38 special Rosse handgun, resembling the gun used in the robbery.
C. Gang Evidence
A gang expert, San
Bernardino Police Officer Raymond Bonshire, testified that defendant and Vance
are both active members of the Projects criminal
street gang. Defendant and Vance
both had multiple gang tattoos, indicating long-time gang membership. The gang territory is west of the 215 freeway
in San Bernardino.
Bonshire described the
history and culture of the Projects gang, its name, color, and symbols. He explained how gang admission works and the
gang’s activities. He estimated the
Projects’s membership was about 100. The
primary activities of the Projects street gang are narcotics sales, firearm
possession, burglaries, robberies, and shootings, including murders. Gang members commit crimes together. Committing a robbery elevates a gang member’s
status in several ways: it is “putting
in work . . . for the gangâ€; it demonstrates active membership and “good
standingâ€; it provides money to buy clothing and other status symbols and recruit
new members; and it provides money to finance the gang’s other activities.
Bonshire described three
predicate offenses: a 2009 grand theft
committed by gang member, Tommy Walker; two 2009 armed robberies with a gang
enhancement committed by gang member, Cedric Timmons; and two 2008 robberies
committed by gang member, Broderick Moore.
Based on hypothetical
questions, Bonshire opined that the Jack in the Box crimes and flight were
committed by gang members working together and would enhance their status and
reputations by demonstrating their willingness to commit crimes with other gang
members, their disregard of the law, and their willingness to do anything for
the gang. Choosing to commit the crimes
outside the gang’s territory facilitates commission of the crimes because it
occurs away from the local police department familiar with the gang, its
members, and the gang injunction. Bonshire
said that the crimes would be discussed within the gang community and the
community in general, thereby enhancing the gang’s reputation and the fear and intimidation
experienced by potential crime victims and witnesses. He also testified that gang members typically
order victims to move around during robberies in order to intimidate them.
III
AGGRAVATED KIDNAPPING
Defendant challenges the
sufficiency of evidence on all five of his convictions for aggravated
kidnapping for robbery.
name="_ftnref4" title="">[4] (§ 209, subd. (b)(1).) Under section 209, aggravated kidnapping,
requires “movement of the victim . . . 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.†(§ 209, subd. (b)(2); In re Earley (1975) 14 Cal.3d 122, 128.) Defendant contends the movement of all five
employees was insufficient evidence of asportation because it was “merely
incidental†to accomplishing the robbery and did not increase the risk of harm
to them. As discussed below, we conclude
that the conviction on count 1 for aggravated kidnapping of Bholat, the
manager, should be reversed but the remaining convictions are affirmed.
In People v. Daniels (1969) 71 Cal.2d 1119, 1138, the California
Supreme Court cited a comment by “[t]he learned draftsmen†of the Model Penal
Code about the “‘absurdity of prosecuting for kidnapping in cases where the
victim is forced into his own home to open the safe, or to the back of his
store in the course of a robbery.’†The court
reviewed this issue comprehensively in People
v. Vines (2011) 51 Cal.4th 830, 869-871, in which defendant moved the
employees between 80 and 200 feet and locked them downstairs in a walk-in
freezer to accomplish a robbery.
court commented that the two elements of incidental movement and increased
risk of harm “are not mutually exclusive but are interrelated.†(Id.
at p. 870, citing People v. Rayford (1994)
9 Cal.4th 1, 12.) With regard to the
first prong, the jury considers the scope and nature of the movement—including
the actual distance a victim is moved—but there is no minimum distance. (Vines,
at p. 870.) The second prong
involves consideration of factors such as the decreased likelihood of
detection, the danger inherent in the victims’ foreseeable attempts to escape,
and the attacker’s enhanced opportunity to commit additional crimes. (Ibid.) Although these principles seem fairly
straightforward, California courts have applied them differently depending on
the factual circumstances.
Some California cases have
found the brief movement of robbery victims within a business establishment or
residence insufficient to constitute aggravated kidnapping: “[I]ncidental movements are brief and
insubstantial, and frequently consist of movement around the premises where the
incident began.†(People v. Diaz (2000) 78 Cal.App.4th 243, 247; People v. Williams (1970) 2 Cal.3d 894 [service station attendant locked
inside station bathroom and then moved around premises]; People v. Mutch (1971) 4 Cal.3d 389, 397-399 [movement of victims
30 to 40 feet through different rooms inside a business]; People v. Morrison (1971) 4 Cal.3d 442, 443 [movement of victim up
and down stairs and into rooms of private residence]; People v. Smith (1971) 4 Cal.3d 426, 427 [movement of hotel clerk
from office to second floor room of hotel]; People
v. John (1983) 149 Cal.App.3d 798, 804, [movement of victim through
different buildings in residence]; People
v. Hoard (2002) [Fourth Dist., Div. Two] 103 Cal.App.4th 599, 607 [movement
of two victims to the back office of a jewelry store]; People v. Washington (2005) 127 Cal.App.4th 290, 295-296 [a bank
officer and teller moved into a bank vault].)
On the other hand, in cases
that are factually similar, courts have concluded that brief movement was not
incidental to robbery and increased the risk of harm to the victims. (People
v. James (2007) 148 Cal.App.4th 446, 457, [coerced movement of one person
when the intended target of the robbery was another person];
Cal.App.4th 272, 279 [movement of victims about 10 feet from outside a bingo
hall to a windowless back office].)
In Vines, as in this case, the forcible movement of the victims was
also limited to movement inside the premises when a masked, armed robber herded
a McDonald’s restaurant manager and other employees into the manager’s office
where a safe was located. In
directed the victims from the front of the store, down a hidden stairway, and
into a locked freezer. The scope and
nature of this movement was not “merely incidental†to the commission of the
robbery Additionally, the victims
suffered an 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.†(People
v. Vines, supra, 51 Cal.4th at p. 871.)
On this record, the Supreme Court concluded sufficient evidence of
asportation supported defendant’s convictions for aggravated kidnapping.
It is difficult to extract a
rule from these cases which seem to reach opposing conclusions. Nevertheless, a significant factor in all the
cases is whether the movement—whatever the distance—was necessary to obtain
control of the property and facilitate the robbery.
In People v. Hoard, supra,
103 Cal.App.4th at pages 601-602, 607, the defendant entered a jewelry store
and moved two female employees 50 feet at gunpoint to the back office, where he
bound them with duct tape. After
confining them to the back room, he robbed the store. In reversing the convictions for aggravated
kidnapping, this court noted that “[c]onfining the women in the back office
gave defendant free access to the jewelry and allowed him to conceal the
robbery from entering customers who might have thwarted him.†(Id.
at p. 607.) Accordingly, “[d]efendant’s
movement of the two women served only to facilitate the crime with no other
apparent purpose.†(Ibid.) The asportation of
the victims was “merely incidental†to the robbery and did not increase the
risk of harm.
In People v. Washington, supra, 127 Cal.App.4th at pages 295-296, two
defendants robbed a bank. While armed
with a gun, one defendant jumped over the front counter and directed two
tellers to empty the cash drawers. The
second defendant, also armed, entered the bank manager’s office and demanded money.
The manager asked a teller to assist her
in the vault. The manager and teller moved
14 or 15 feet into the vault. In holding
that the movement of both victims was incidental to the robbery and did not increase
the risk of harm, the court observed “robbery of a business owner or employee
includes the risk of movement of the victim to the location of the valuables
owned by the business that are held on the business premises.†(Id.
at p. 300.) Crossing thresholds within
the business to obtain property cannot elevate robbery to aggravated kidnapping. (Ibid.) Given that the primary object of a robbery is
to obtain money, the movement of employees to that area to facilitate that
crime must be deemed incidental. (
recognized some distinctions in its discussion of Hoard and Washington. In Washington,
“movement was necessary to obtain the money and complete the robbery[. I]n the present case the victims were not
taken to the location of the money the robbers sought to obtain. In Washington,
‘there was no excess or gratuitous movement of the victims over and above that
necessary to obtain the money in the vault.’
(Washington, supra, 127
Cal.App.4th at p. 299.) In the instant
case, the movement of the victims had nothing to do with facilitating taking
cash from the bingo hall; defendant and his accomplice had aborted that aim,
and their seclusion of the victims in the back office under threat of death was
clearly ‘excess and gratuitous.’†(
Cal.App.4th at pp. 279-280.) Similarly,
when compared with Hoard, “the
movement of the victims did not serve to facilitate the forcible attempted
taking of money from the bingo hall. Rather,
it served other purposes squarely recognized by the Supreme Court
. . . as supporting a finding of a substantial increase in danger: removing the victims from public view,
decreasing the odds that the attempted robbery of cash from the bingo hall
would be detected, increasing the risk of harm should any victim attempt to
flee, and facilitating the robbers’ escape. Indeed, there was no purpose for moving the
victims to the back office except to facilitate these aims. In context, this movement was not merely brief
and trivial; to the contrary, it substantially increased the risk of harm
beyond that inherent in the crime of attempted robbery.†(Corcoran,
at p. 280.)
In
this case, a masked, armed robber, later identified as defendant, burst into
the Jack in the Box, making demands for money.
Bholat, the manager, told defendant the money was in the safe and defendant
demanded Bholat open the safe. At the
same time, the robber directed the other four employees to go into the
manager’s office while Bholat opened the safe.
Because there was very little money in the safe, Bholat—not defendant—instructed
Cedillo to get money from the cash register at the counter. The evidence shows that defendant told Bholat
to retrieve money from the safe in the office to facilitate the robbery, making
the movement of Bholat incidental to the robbery of the safe.
Based on
movement of Bholat to the office where the safe was located was incidental to
the robbery. As conceded by the People,
there was no way to accomplish the robbery from the safe except for Bholat to
go into the office. Furthermore,
although there was also money in the cash register, when Cedillo went to the
cash register, she was instructed to do so by Bholat, not defendant. However, the movement of the four employees,
other than Bholat, into the office, was not done to facilitate the
robbery. Placing them in the enclosed
space of the manager’s office, out of public view, and threatened with a gun certainly
caused them to suffer the threat of increased risk of harm. Accordingly, viewing the evidence in the
light most favorable to the People (People
v. James, supra, 148 Cal.App.4th at p. 453), the record was insufficient as
a matter of law to support the verdict as to count 1 (Bholat) but substantial
evidence supported the kidnapping convictions as to counts 2 through 5.
IV
DISPOSITION
We reverse count 1 for
aggravated kidnapping and direct the trial court to impose the stayed sentence
on count 6 and to forward a corrected abstract of judgment to the
NOT TO BE PUBLISHED IN
OFFICIAL REPORTS
CODRINGTON
J.
We concur:
McKINSTER
Acting P. J.
RICHLI
J.
name="_ftn1" title=""> [1] All statutory references are to the Penal
Code unless stated otherwise.
name="_ftn2" title=""> [2]
Vance’s appeal is the subject of a separate appeal, People v. Vance, E054460.
