Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County No. MF007986A, Arthur E. Wallace, Judge.
Grace Lidia Suarez, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Charles A. French and Brook Bennigson, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Kane, J.
A jury convicted appellant Jorge Rabago Espinoza of four counts of robbery and three counts of simple kidnapping. He contends the kidnapping convictions must be reversed because the movement of the victims was only incidental to the commission of the robbery and also contends there was prejudicial instructional error. We conclude the evidence was sufficient to sustain the kidnapping convictions and there was no prejudicial instructional error.
FACTUAL AND PROCEDURAL SUMMARY
The robbery occurred at Delgado Jewelry and Repair shop in Tehachapi. The front door opened from the sidewalk outside the store. In the front room of the store were display cases holding jewelry. The front room also had a lobby area with chairs for customers. There was a back room, whose door was in a straight alignment with the front door. The door between the two rooms was kept open, allowing whoever was in back to see the display cases and the front entrance. There was also a safe in the back room of the store.
On January 27, 2007, appellant entered the store and asked to look at a ring. When appellant entered, Jose Delgado, the owner of the store, was in the back room repairing a watch for customer Walter Dodson, who was waiting. Jose’s daughter, Janet Delgado, and Jose’s aunt, Delores Burbano, were in the front room of the store.
We refer to Jose Delgado and Janet Delgado by their first names, not out of disrespect, but to avoid any confusion to the reader.
Janet went to help appellant and, as she was reaching into the display case to get the ring, two other men entered the store. The two men were Ernesto Valdez and a younger man, who was never identified or caught. These two men approached and asked to see some rings.
Valdez pulled out a gun and ordered Janet to move back. Janet moved into the doorway between the two rooms. Jose was still in the back room repairing Dodson’s watch when Valdez put a gun to Jose’s head and ordered him to get on the floor. Janet protested, claiming that Jose had a heart condition. Janet pretended to look for medication for Jose and tripped the silent alarm.
Burbano and Dodson were in the front room, along with appellant and the third man. Burbano’s hands were tied. At some point, Burbano was moved to the back room where Janet and Jose were located. Dodson had been seated in a lobby chair when the men entered. He stood up and tried to move toward the front door. Appellant gestured as though he had a gun in his pocket and Dodson sat back down in the lobby chair.
Dodson heard “commotion in the back room” and saw Valdez and the third man pulling things from shelves and display cases and putting them into a pillowcase. Appellant motioned for Dodson to move to the back of the store. Dodson walked to the area behind the jewelry cases, where he was tied up and sat down on the floor. From where he was seated on the floor, Dodson could see Burbano, Janet, and Jose in the back room on the floor. Appellant remained by the front door as though guarding it.
Valdez and the third man continued to load jewelry into a pillowcase, cleaning out the display cases. The men took approximately $600 from the cash register and all of the jewelry in the store. Valdez motioned to Dodson to move toward the back room and join Jose, Janet, and Burbano. The four victims were told not to move; there was a period of silence.
Two sheriff’s deputies responded to the silent alarm and saw the three men leaving the store. The deputies drew their weapons and ordered the three men to halt. Appellant and Valdez complied; the third man ran away and was never caught.
Appellant and Valdez both had a plastic film on their hands, which was a technique used to avoid leaving fingerprints. Appellant had rings and bracelets taken from the store in his pockets. A large bag they were holding contained nearly all of the jewelry from the store. Valdez also had a BB gun in his pocket that looked like a semiautomatic handgun.
Jose testified that after accounting for the jewelry and items that were recovered, “two rings and some money was missing, about $2,000 worth.”
Appellant was convicted of four counts of robbery and three counts of kidnapping. He was sentenced to a total term of 12 years 4 months in prison.
DISCUSSION
I. Sufficiency of Evidence of Kidnapping
In assessing the sufficiency of the evidence to sustain a criminal conviction, the reviewing court’s task is to review the entire record in the light most favorable to the judgment to determine whether it discloses substantial evidence; that is, evidence that is reasonable, credible, and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 578; People v. Rodriguez (1999) 20 Cal.4th 1, 11; People v. Earp (1999) 20 Cal.4th. 826, 887.) “The focus of the substantial evidence test is on the whole record of evidence presented to the trier of fact, rather than on ‘“isolated bits of evidence.”’ [Citation.]” (People v. Cuevas (1995) 12 Cal.4th 252, 261; see also People v. Johnson, supra, at p. 577.) The appellate court must view the evidence in a light most favorable to respondent and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. (People v. Dominguez (2006) 39 Cal.4th 1141, 1153 (Dominguez).)
Appellant contends his three convictions for kidnapping Janet, Burbano and Dodson were not supported by substantial evidence because any movement of the victims was “incidental” to the robbery. The People argue that the movement increased the risk of harm to the victims and therefore was not incidental to the robbery.
Penal Code section 207, subdivision (a), simple kidnapping, states: “Every person who forcibly, or by any other means of instilling fear, steals or takes, or holds, detains, or arrests any person in this state, and carries the person into another country, state, or county, or into another part of the same county, is guilty of kidnapping.” The elements of this offense are: “(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 for a substantial distance. [Citation.]” (People v. Jones (2003) 108 Cal.App.4th 455, 462.)
All further statutory references are to the Penal Code unless otherwise specified.
“[F]or simple kidnapping asportation the movement must be ‘substantial in character’ [citation], but … the trier of fact may consider more than actual distance.” (People v. Martinez (1999) 20 Cal.4th 225, 235 (Martinez).) “‘[S]ection 207 does not speak in terms of a movement of any specific or exact distance.’ [Citation.] Accordingly, nothing in the language of section 207(a) limits the asportation element solely to actual distance. Section 207(a) proscribes kidnapping or forcible movement, not forcible movement for a specified number of feet or yards.” (Id. at p. 236.)
Confusion arises because simple kidnapping requires only a brief movement of the victim. (People v. Daniels (1969) 71 Cal.2d 1119, 1126.) On the other hand, there is often brief movement to facilitate a robbery. In determining whether movement is incidental to the underlying crime, a jury considers the scope and nature of the movement. (Id. at p. 1128.) In other words, the jury should consider the “totality of the circumstances.” (Martinez, supra, 20 Cal.4th at p. 237.)
In considering the “totality of the circumstances” it is proper to instruct the jury that it may consider the actual distance the victim was moved, whether the movement increased the risk of harm, whether it decreased the likelihood of detection, and whether it increased both the danger inherent in a victim’s foreseeable attempts to escape and the attacker’s enhanced opportunity to commit additional crimes. Such factors apply to cases involving simple kidnapping. Although “contextual factors, whether singly or in combination, will not suffice to establish asportation if the movement is only a very short distance,” a jury may convict of simple kidnapping without finding an increase in harm, or any other contextual factors. (Martinez, supra, 20 Cal.4th at p. 237.)
In this case the jury was instructed with CALJIC No. 9.50, which identified the contextual factors outlined in Martinez. Appellant does not criticize the language of the instruction, but contends that the kidnapping counts should never have been submitted to the jury because the evidence, as a matter of law, establishes that the asportation was merely incidental to the crime of robbery. We disagree. While the jury could have concluded that the asportation was only incidental to the crime of robbery, it was also within its discretion to find that one or more of the above listed contextual factors applied such that the crime of simple kidnapping occurred.
In considering the scope and nature of the movement, the jury heard evidence both as to the actual distances the victims were moved and evidence pertaining to other contextual factors, namely, evidence that tended to show that the forced movements of the victims decreased the likelihood of detection. On the matter of the actual distances the victims were moved, testimony established that Janet was told to move away from the display cases and toward the back room of the store, a distance of no more than 10 feet; Burbano was moved from the front room of the store to the back area, a distance of about four or five feet; Dodson’s pretrial and trial statements (in which he estimated the distance he was moved) varied from 5 feet to “[a] bit over 30 feet.” On the matter of detection, the evidence revealed the victims were moved from the front room of the store, which opened onto the public sidewalk, to the back room where they were bound and placed on the floor. Viewing the evidence in a light most favorable to respondent and presuming the existence of every fact the trier could reasonably deduce from the evidence (Dominquez, supra, 39 Cal.4th at p. 1153), the jury was entitled to find that the movement of these persons from the front room to the back room, and placed on the floor, obscured them from public view and thereby decreased the likelihood of their detection. Such a finding is sufficient to support a kidnapping conviction. (Id. at p. 1155; People v. Rayford (1994) 9 Cal.4th 1, 23 (Rayford).)
Appellant cites People v. Washington (2005) 127 Cal.App.4th 290 (Washington) and People v. Hoard (2002) 103 Cal.App.4th 599 (Hoard) in support of his contention that the forced movements of the victims were merely incidental to the commission of the robbery as a matter of law. We find Washington clearly distinguishable and we decline to follow Hoard.
In Washington the court noted, “given that the cooperation of two bank employees was required to open the vault, the movement of both Reif and Reynoso was necessary to complete the robbery.” (Washington, supra, 127 Cal.App.4th at p. 299.) That is different from this case, where it was not necessary to move the three victims from the front room of the store to the back room of the store in order to consummate the theft.
Hoard was a 2-1 decision in which the majority held that forcing two employees to move 50 feet to a back office where they were tied up while defendant stole jewelry in the front of the store was merely incidental to the robbery. The kidnapping convictions were reversed. The dissent disagreed, believing the evidence was sufficient to show that the movement of the victims increased their risk of harm.
We decline to follow Hoard. Hoard fails to accord proper deference to the Rayford holding and analysis, relies on cases that predate Rayford, and predates our Supreme Court’s decision in Dominguez.
See People v. Aguilar (2004) 120 Cal.App.4th 1044, 1051 [disagrees with Hoard].)
The Dominquez opinion makes no reference to Hoard.
In Rayford, the defendant, with intent to commit rape, moved the victim 105 feet at night and forced her to sit against a wall beside a small tree, 34 feet from the street. The wall blocked one view of passersby and a tree and bushes limited detection of the victim from the street. The Supreme Court concluded the jury could have reasonably determined that this movement substantially increased the victim’s risk of harm because it made her less detectable. The kidnapping conviction was affirmed. (Rayford, supra, 9 Cal.4th at p. 23.)
In Dominguez, the defendant forced the victim from the side of the road to a spot in an orchard 25 feet away and 10 to 12 feet below the level of the road, where it was unlikely any passing driver would see her. The defendant was convicted of kidnapping for rape, rape and murder. The Court of Appeal reversed the kidnapping conviction. The Supreme Court reversed the decision of the appellate court, finding there was sufficient evidence that the movement effected a substantial increase in the risk of harm because the place to which the victim was moved was one obscured from public view. (Dominguez, supra, 39 Cal.4th at p. 1154.) The high court also disputed the appellate court’s conclusion that the victim was not obscured from public view, holding that a reasonable jury could have concluded otherwise. The Dominguez court also distinguished People v. Stanworth (1974) 11 Cal.3d 588 [kidnapping conviction reversed where robbery and rape victim was moved 25 feet into an open field; the court explained “there is no evidence that the relatively brief movement … removed her from public view”] by noting that, “Here, unlike Stanworth, defendant’s forced movement of [the victim] in fact removed her from public view and substantially increased her risk of harm.” (Dominguez, supra, at p. 1154.)
In Hoard the appellate court reversed convictions for aggravated kidnapping, concluding that forcing jewelry store employees into a back room, binding them with duct tape, and then robbing the store was movement that served to facilitate the underlying crime of robbery. (Hoard, supra, 103 Cal.App.4th at p. 602.) Hoard distinguished its facts from Rayford’s, noting that the movement in Hoard was inside a store building whereas in Rayford the movement was outside. That distinction is not persuasive. Hoard’s bright line rule that movements within a building are necessarily incidental to the commission of robbery, but movements outside a building may not be does not find support in any of the recent Supreme Court cases that have analyzed this issue. (Rayford, supra, 9 Cal.4th 1; Martinez, supra, 20 Cal.4th 225; Dominguez, supra, 39 Cal.4th 1141.) We find such a proposition unduly overbroad and decline to follow it. Instead, we abide by the express pronouncements of those cases that it is for the jury to decide, under the totality of the circumstances, whether the forced movement was incidental to the commission of another crime or whether it substantially increased the risk of harm to the victims. It is the “context of the environment” in which the movement occurred that determines whether it was incidental to the crime. (Rayford, supra, at p. 12; People v. Aguilar, supra, 120 Cal.App.4th at p. 1051.) Hoard places undue emphasis on the environment—within or outside a building—rather than on the “context of the environment,” which is defined by the scope and nature of the movement. (Rayford, supra, at p. 12; Martinez, supra, at p. 236; Dominguez, supra, at p. 1151.)
In this case, there was evidence that the movement of these three victims from the front room to the back room of the jewelry store decreased their detectability. Since the appellate court must view the evidence in a light most favorable to respondent and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence (Dominguez, supra, 39 Cal.4th at p. 1153), we conclude that the evidence was sufficient to support appellant’s kidnapping convictions.
II. Instructional Error
The trial court instructed the jury on both simple kidnapping (CALJIC No. 9.50) and on aggravated kidnapping (CALJIC No. 9.50.1). Appellant claims the trial court erred in instructing the jury on aggravated kidnapping since only simple kidnapping was charged. Any error was forfeited by failing to object in the trial court. It was also harmless.
As the United States Supreme Court has clarified, the correct term is “forfeiture” rather than “waiver,” because the former term refers to a failure to object or to invoke a right, whereas the latter term conveys an express relinquishment of a right or privilege. (See, e.g., United States v. Olano (1993) 507 U.S. 725, 733; In re S.B. (2004) 32 Cal.4th 1287, 1293, fn. 2; People v. Simon (2001) 25 Cal.4th 1082, 1097.) As a practical matter, the two terms on occasion have been used interchangeably. (People v. Simon, at p. 1097, fn. 9; People v. Saunders (1993) 5 Cal.4th 580, 590, fn. 6.)
The failure to object to an instruction in the trial court forfeits any claim of error unless the error affected the substantial rights of the defendant. It affects substantial rights if it results in a miscarriage of justice making it reasonably probable the defendant would have obtained a more favorable result in the absence of the error. (People v. Andersen (1994) 26 Cal.App.4th 1241, 1249.)
Here, the two kidnapping instructions were virtually identical in instructing the jury how to decide whether the movement was substantial in character. CALJIC No. 9.50 (Simple Kidnapping) instructed that the jury should consider the totality of the circumstances, including actual distances moved, whether the movement increased the risk of harm, decreased the likelihood of detection or increased both the danger inherent in the victim’s foreseeable attempt to escape and the attacker’s enhanced opportunity to commit the additional crimes. It also instructed that the movement must be more than that which is incidental to the commission of another crime. CALJIC No. 9.50.1 (Aggravated Kidnapping) included those same explanations and admonitions.
Appellant fails to identify what language in CALJIC No. 9.50.1 was prejudicial to him except to say that the court did not instruct that “‘contextual factors, whether singly or in combination, will not suffice to establish asportation if the movement is only a very short distance,’” citing Martinez, supra, 20 Cal.4th at page 237. Respondent correctly points out that neither instruction includes this language, which renders this argument irrelevant to the contention that it was error to give CALJIC No. 9.50.1.
Since the two instructions contain similar language defining movement that is substantial in character, any claim of error in giving CALJIC No. 9.50.1 was forfeited because the error did not result in any miscarriage of justice and did not affect the substantial rights of appellant. (People v. Andersen, supra, 26 Cal.App.4th at p. 1249; Chapman v. California (1967) 386 U.S. 18.)
DISPOSITION
The judgment is affirmed.
WE CONCUR: Cornell, Acting P.J. Dawson, J.