Opinion
A148401
06-01-2018
THE PEOPLE, Plaintiff and Respondent, v. TAJIRI HAMISI TURNER, JR., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Mateo County Super. Ct. No. SC082805A)
This is an appeal from judgment after a jury convicted defendant Tajiri Hamisi Turner, Jr., of several counts of aggravated and simple kidnapping and robbery, as well as a single count of dissuading a witness through use of force or threats. Defendant challenges the sufficiency of the evidence supporting his conviction on three of the kidnapping counts. Defendant also contends, and the People concede, that the trial court miscalculated his presentence conduct credits. For the reasons provided below, we reverse defendant's conviction on two counts of simple kidnapping, remand to the trial court to modify the abstract of judgment to award him 84 additional days of presentence conduct credits, and in all other regards affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On January 11, 2016, an amended criminal information was filed charging defendant with three counts of kidnapping to commit robbery (Pen. Code, § 209, subd. (b)(1)) (counts one, four, six); three counts of second degree robbery (§ 212.5, subd. (c)) (counts two, five, seven); one count of dissuading a witness by force or threat) (§ 136.1, subd. (c)(1)) (count three); and one count of resisting an officer by threat and violence (§ 69) (count eight). Numerous enhancements were also alleged, including two prior robbery convictions that were strikes (§§ 667, subds. (a)(1) & (d), 1170.12(b) & (c)(2)) (all counts), two prior prison terms (§ 667.5, subd. (b)) (all counts), and use of a deadly or dangerous weapon in the commission of the underlying felonies (§ 12022, subd. (b)(1)) (all counts but count eight).
Unless otherwise stated, all statutory citations herein are to the Penal Code.
On February 4, 2016, defendant moved for acquittal on the kidnapping to commit robbery counts charged in counts one, four and six. The trial court granted this motion; however, it then permitted the prosecution to charge two additional counts of simple kidnapping. Accordingly, on February 9, 2016, another amended information was filed, adding counts nine and ten, simple kidnapping in violation of section 207, subdivision (a).
Trial began on January 4, 2016, at which the following evidence was presented. Defendant was charged with robbing three cell phone stores in San Mateo County using a similar modus operandi. The first such robbery occurred at a Radio Shack in San Bruno on February 13, 2014; the second at another Radio Shack in San Bruno on May 14, 2014; and the third at a Verizon store in San Mateo on September 3, 2014. The prosecution also presented evidence that defendant committed three additional cell phone store robberies, in San Francisco, San Mateo and Alameda Counties, respectively.
In the interest of judicial efficiency, we limit our statement of facts to those relevant to the issues raised by defendant on appeal.
A. February 13, 2014 (Victim: Myranda McFadyen) (Count 9; Simple Kidnapping).
On February 13, 2014, Myranda McFadyen was working alone at a Radio Shack in San Bruno. At about 10:10 a.m., defendant entered wearing a backpack and a coat covering most of his face. After discussing an iPad with McFadyen, defendant began wandering around the store. At some point, he followed McFadyen behind the store counter and pointed a gun at her, instructing her to take him to the cage where iPhones are kept.
Defendant then walked McFadyen about five to seven feet to the back room and through the door that separated the front of the store and the back area. After the door closed, they walked to the cage, which was in an office in the back. This back office had no windows through which people could see in, and had one other door besides the entrance, which was an exit-only door that locked behind it. McFadyen, scared, unlocked the cage for defendant, who then removed a duffel bag from his backpack and instructed her to fill it with iPhones. While she was obeying, the store phone rang, prompting defendant to take the phone and smash it by throwing it against the wall.
After McFadyen had filled the duffel bag with about 30 to 38 iPhones, defendant ordered her to sit down in the doorway of the cage and warned against calling the police. He then told McFadyen that he was taking her purse so that he would know where she lived, and that, if she called the police, he would kill her and harm her family. At this point, McFadyen was crying hysterically and defendant left without her purse. After waiting a few minutes, McFadyen got up and called 911.
Following this incident, McFadyen suffered from anxiety that left her unable to work, to be alone, or to leave her house unless necessary. She never returned to her job at the store, and required therapy for several months.
B. May 14, 2014 (Victim: Dustin Reyes) (Count 4; Kidnapping for Robbery).
On May 4, 2014, Dustin Reyes was working at a Radio Shack in San Bruno. At about 9:15 a.m., defendant entered wearing a backpack and a hat low on his forehead. Defendant partially covered his face with a glove. After talking to Reyes about headphones for a few minutes, defendant pulled out a gun and instructed Reyes to take him to the iPhones. Defendant told Reyes that he did not want to hurt him, and was just "hustling; . . . trying to make money."
Reyes took defendant to the back room, a windowless, employee-only area about 25 feet from the front of the store. Defendant, gun pointed at Reyes, closed the door to the back room and instructed Reyes to unlock the cage where the iPhones were kept. He then instructed Reyes to fill his duffel bag with all the iPhones and Samsung Galaxy phones. Reyes complied, placing about 35 to 40 phones in defendant's duffel bag and backpack. Afterward, defendant instructed Reyes to get into the cage. Defendant then took Reyes's cell phone and left, locking him in the cage, without access to food, water or toilet. After waiting a few minutes, Reyes was able to break part of the cage and grab his cell phone, which defendant had left outside the cage. Reyes then called the police, who arrived in about five minutes and let him out of the cage.
C. September 3, 2014 (Victim: Yuanjiun Men) (Count 10; Simple Kidnapping).
On September 3, 2014, Yuanjiun Men was working alone at a Verizon store in San Mateo. Defendant entered at about 11:00 a.m., wearing a hat and backpack. Defendant approached the counter and asked Men for information about opening a cell phone account. Men advised defendant he would need to visit a different store and, initially, defendant turned to leave. However, he then closed the store door and pointed a gun at Men. Defendant told Men he wanted all the cell phones in the store. Scared, Men walked toward the back room, as defendant placed his hand at her collar. Confused from her fear, Men first took defendant to the employee break room, about 19 feet from the front counter, before correcting herself and taking him to the inventory room where the phones were kept, about four feet from the front counter.
The inventory room, where the cell phones were kept in a locked closet, had no windows. Once there, Men realized the key to unlock this closet was in a drawer at the front counter, so she walked back to the front counter and retrieved it. Men then returned to the inventory room and complied with defendant's order to unlock the closet and to load the phones into his duffel bag. Once she had placed about 16 or 17 cell phones in his duffel bag, defendant told her to leave the inventory room and they walked back toward the break room. At some point during their walk, Men noticed defendant looking away, so she took the opportunity to run out the back door, screaming for help. Defendant, in turn, went out the door behind her and escaped in his car. After this incident, Men suffered from constant fear and nightmares.
D. The Verdict, Sentence and Appeal.
On February 11, 2016, the jury convicted defendant of all remaining counts except count eight (to wit, counts two through five, seven, nine and ten). Thus, he was convicted of one count of kidnapping to commit robbery, three counts of second degree robbery, two counts of simple kidnapping, and one count of dissuading a witness by threat or force. The jury also found all enhancement allegations to be true. Count eight was ultimately dismissed in the interests of justice after the jury was unable to reach a verdict. Finally, the trial court found true the prior conviction allegations that had been reserved for a bench trial.
Defendant was subsequently sentenced by the trial court to a total prison term of 144 years to life. This timely appeal of the judgment followed.
DISCUSSION
Defendant raises two arguments on appeal. First, defendant contends the evidence is insufficient to support his conviction for count four (kidnapping for robbery) and counts nine and ten (simple robbery). Second, he contends the trial court erred by failing to award him presentence conduct credits, a point the People concede. We address these issues below as appropriate.
I. Sufficiency of the Evidence Supporting Counts Four, Nine and Ten.
The governing law is not in dispute. "Aggravated kidnapping is for the purpose of robbery or certain sex offenses. (§ 209(b)(1); [citations].) In contrast, culpability under section 208(b), as with simple kidnapping, arises independently of the commission or attempted commission of any other offense." (People v. Martinez (1999) 20 Cal.4th 225, 232.)
"With respect to asportation, aggravated kidnapping requires movement of the victim that is not merely incidental to the commission of the underlying crime and that increases the risk of harm to the victim over and above that necessarily present in the underlying crime itself. (§ 209(b)(2); [citations].) 'These two aspects are not mutually exclusive, but interrelated.' [Citation.] [¶] In determining 'whether the movement is merely incidental to the [underlying] crime . . . the jury considers the "scope and nature" of the movement. [Citation.] This includes the actual distance a victim is moved. However, we have observed that there is no minimum number of feet a defendant must move a victim in order to satisfy the first prong.' [Citations.] [¶] 'The second prong of the Daniels test [in People v. Daniels (1969) 71 Cal.2d 1119] refers to whether the movement subjects the victim to a substantial increase in risk of harm above and beyond that inherent in [the underlying crime]. [Citations.] This 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. [Citations.]' ([Citation] [Evaluation of risk of harm includes 'such factors as "the defendant's motivation to escape detection," and "the possible enhancement of danger to the victim resulting from the movement." ']; [citation]." (People v. Martinez, supra, 20 Cal.4th at pp. 232-233.)
The kidnapping asportation standard is only slightly modified where the defendant is charged with simple, rather than aggravated, kidnapping. In these cases, "the movement must be 'substantial in character' [citation], [although] the trier of fact may consider more than actual distance." (People v. Martinez, supra, 20 Cal.4th at p. 235.) At bottom, whether the movement was substantial in character is based upon the jury's consideration of a "totality of the circumstances," including the distance of the victim's movement, the victim's increased risk of harm, his or her decreased likelihood of detection, and the increased danger inherent in, one, the victim's foreseeable attempts to escape and, two, the attacker's enhanced opportunity to commit other crimes. (Id. at p. 237 ["While the jury may consider a victim's increased risk of harm, it may convict of simple kidnapping without finding an increase in harm, or any other contextual factors. Instead, as before, the jury need only find that the victim was moved a distance that was 'substantial in character' "].)
"In addition, in a case involving an associated crime, the jury should be instructed to consider whether the distance a victim was moved was incidental to the commission of that crime in determining the movement's substantiality." (People v. Martinez, supra, 20 Cal.4th at p. 237.)
In applying these standards, we keep in mind "a primary reason forcible asportation is proscribed by the kidnapping statutes is the increase in the risk of harm to the victim because of the diminished likelihood of discovery, the opportunity for the commission of additional crimes, and the possibility of injury from foreseeable attempts to escape. (See People v. Bradley (1993) 15 Cal.App.4th 1144, 1154 , disapproved on other grounds in [People v.] Rayford [(1994)] 9 Cal.4th [1,] 21 [Victim's forcible movement 50 to 60 feet from the open street, and around building to the inside of a separate structure, an enclosed dumpster area 'provid[ed] the necessary environment to commit the targeted crime without interruption or detection.']; People v. Williams (1990) 220 Cal.App.3d 1165, 1171 [danger sought to be prevented by simple kidnapping statute was realized when one victim, who was driving, abandoned moving vehicle to escape, causing truck to collide with another car and allowing second victim opportunity to flee]; People v. Stender [(1975)] 47 Cal.App.3d [413,] 423 ['200 feet becomes more a substantial distance when it is considered it accomplished the purpose of removing the victim from the ready help of her mother']; cf. People v. Ford (1966) 65 Cal.2d 41, 58 [52 Cal.Rptr. 228, 416 P.2d 132], overruled on other grounds in People v. Satchell (1971) 6 Cal.3d 28, 35 [98 Cal.Rptr. 33, 489 P.2d 1361, 50 A.L.R.3d 383] [simple kidnapping ' "inherently dangerous to human life" '].)" (People v. Martinez, supra, 20 Cal.4th at p. 236.) As our state Supreme Court explained, however, the " 'fact that these dangers do not in fact materialize does not, of course, mean that the risk of harm was not increased.' " (Id. at p. 233.)
Finally, where, as here, the defendant challenges the sufficiency of the evidence supporting a finding of guilt, the reviewing court must examine the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence from which the jury could find the defendant guilty beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 576-77.) "Substantial evidence" is defined as " ' "evidence which is reasonable, credible, and of solid value . . . ." ' " (People v. Maury (2003) 30 Cal.4th 342, 396.)
A reviewing court must accept logical inferences the jury might have drawn from the circumstantial evidence. (People v. Maury, supra, 30 Cal.4th at p. 396.) " ' "A reasonable inference, however, 'may not be based on suspicion alone, or on imagination, speculation, supposition, surmise, conjecture, or guess work. [¶] . . . A finding of fact must be an inference drawn from evidence rather than . . . a mere speculation as to probabilities without evidence.' " [Citations.]' [Citation.]" (People v. Sifuentes (2011) 195 Cal.App.4th 1410, 1416-1417; see People v. White (1969) 71 Cal.2d 80, 83 ["elements may be established by circumstantial evidence and any reasonable inferences drawn from such evidence"].) In determining whether substantial evidence exists, we do not reweigh the evidence, resolve conflicts in the evidence or reevaluate the credibility of witnesses. (People v. Jones (1990) 51 Cal.3d 294, 314; People v. Cortes (1999) 71 Cal.App.4th 62, 71.) "Although it is the duty of the [trier of fact] to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence [citations], it is the [trier of fact], not the appellate court which must be convinced of the defendant's guilt beyond a reasonable doubt. ' "If the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also be reasonably reconciled with a contrary finding does not warrant a reversal of the judgment." ' " (People v. Bean (1988) 46 Cal.3d 919, 932-933.)
A. Count Four: Kidnapping for Robbery (Reyes).
Here, the record, viewed in a light most favorable to the judgment below, reveals the following evidence supporting defendant's conviction on the kidnapping for robbery count. With respect to the first prong of the applicable asportation standard, requiring movement of the victim beyond that which is merely incidental to the robbery (People v. Martinez, supra, 20 Cal.4th at pp. 232-233), there is evidence defendant moved the victim at gunpoint about 25 feet from the front of the store to a back room, where he forced the victim to unlock a padlocked, windowless cage where smart phones were stored. Defendant then forced the victim to fill his duffel bag with the stolen merchandise, before he then locked the victim in the cage, without food, phone or water, and made his escape. While 25 feet of movement is not a great distance, the case law is clear there is no minimum distance a defendant must move a victim to satisfy the first prong of the aggravated kidnapping asportation standard. (People v. Leavel (2012) 203 Cal.App.4th 823, 833.) And while defendant insists the victim was moved just one or two additional steps after he had obtained the stolen merchandise, "the fact that the movement of a robbery victim facilitates a robbery does not imply that the movement was merely incidental to it." (People v. James (2007) 148 Cal.App.4th 446, 454.) Under a totality of the given circumstances, we conclude the nature and degree of defendant's movement of Reyes went beyond that which was merely incidental to a store robbery when he forced the victim into the locked, windowless cage at gunpoint.
Moreover, even more significant in this case is the evidence relating to the standard's second prong, requiring movement that increases the risk of harm to the victim beyond that which is necessarily present in the underlying crime. (People v. Martinez, supra, 20 Cal.4th at pp. 232-233.) "Whether a victim's forced movement was merely incidental to [a] robbery 'is necessarily connected to whether it substantially increased the risk to the victim.' [Citation.]" (People v. Leavel, supra, 203 Cal.App.4th at p. 833.) This increased risk of harm may relate to the victim's physical, mental, emotional or psychological well-being. (Ibid.) Here, the evidence more than suffices to meet this standard. As explained above, defendant left Reyes alone, without food or water, in a locked cage without windows in the back of the store after taking away his cell phone. In doing so, defendant exposed Reyes to a risk of harm and isolation—physical, mental, emotional and psychological—far beyond that which would ordinarily accompany a store robbery, while also decreasing the victim's chance of detection, increasing the danger inherent in his foreseeable attempts to escape and enhancing defendant's own opportunity to commit other crimes. No further showing is required. (People v. Martinez, supra, 20 Cal.4th at p. 236.)
Given the substantial evidence of aggravated kidnapping asportation, defendant's conviction on count four, felony kidnapping for robbery, must stand.
B. Counts Nine and Ten: Simple Kidnapping (McFadyen and Men).
We now turn to defendant's challenge to his conviction on counts nine and ten, simple kidnapping. In seeking reversal as to these counts, defendant directs us to a recent decision from the Second Appellate District, Division One, to wit, People v. Williams (2017) 7 Cal.App.5th 644. There, our appellate colleagues reversed several defendants' convictions for simple kidnapping, which occurred, as here, during their commission of a series of store robberies. In doing so, our colleagues explained: "The evidence in each of the five counts on which the jury convicted [defendants] of aggravated kidnapping shows movement of the employee victims distances of 60, 50, and 40 feet, always inside the store, from locations closer to the front of the store (and visible from outside) to the rears of the store or to back rooms, where the merchandise and/or cash was kept. Consistently, these movements were incidental to the robberies, which all followed the same pattern. The robbers entered the stores through the front doors and moved the employee victims to areas closer to the merchandise they planned to take. None of the movements was unnecessary to the robbery. (People v. Leavel, supra, 203 Cal.App.4th at p. 835.) '[R]obbery 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. Many retail businesses hold large amounts of cash or other valuable personal property on the business premises, frequently in a secure area away from public view, often in a safe or a vault. . . . The fact thresholds within the business are crossed cannot elevate robbery to aggravated kidnapping, given that all of the movement occurred within close proximity to where the robbery commenced and the only thresholds crossed were those that separated [defendants] from the . . . property.' [Citation.]" (Id. at p. 669, italics added.)
We find defendant's authority highly persuasive. As an initial matter, the People correctly note that " '[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." (People v. Martinez, supra, 20 Cal.4th at p. 236.) At the same time, however, our state's Supreme Court holds that, for simple kidnapping asportation, the movement must nonetheless be " 'substantial in character,' " as based upon "some consideration of the 'scope and nature' of the movement or changed environment, and any increased risk of harm." (Ibid.) When applying this standard to a case with facts remarkably similar to ours, the Second District, Division One, court ultimately concluded the requisite asportation showing had not been made: " '[W]hen in the course of a robbery a defendant does no more than move his victim around inside the premises in which he finds him—whether it be a residence . . . or a place of business or other enclosure—his conduct generally will not be deemed to constitute the offense proscribed by section 209." (People v. Williams, supra, 7 Cal.App.5th at p. 667.) Thus, "[t]o determine whether the movement was substantial for the purpose of kidnapping with an associated crime of robbery, we examine whether the distance [victims] were moved was incidental to the commission of robbery. . . . [In this case,] it was. Both victims were moved from the front of the store to the back room, and [one victim] through a door to the vault room, where the robbers took the merchandise from the safes. The movement of [victims] was merely incidental to the robbery, and was therefore not substantial." (Id. at pp. 671-672.)
The Second District, Division One, did, however, find substantial evidence supporting the defendants' convictions for the lesser included offense of felony false imprisonment. (People v. Williams, supra, 7 Cal.App.5th at pp. 672-674.)
We reach the same conclusion with respect to victims McFadyen and Men. In both instances, defendant moved the victims from the front of the store to a back room less than 20 feet away (and, in the case of McFadyen, through a door to a cage), where defendant had the women place smart phones in his duffel bag. However, contrary to the robbery involving Reyes, at no point did defendant lock Men or McFadyen in the back room or the cage without access to food, water, or communications. Rather, he left McFadyen in an unlocked cage unharmed, and insisted Men follow him back toward the front of the store to a break room where, ultimately, she ran and he made his escape with the stolen merchandise. As such, as in People v. Williams, we conclude the movement of the victims was merely incidental to defendant's store robberies and did not, as in the case of Reyes, involve a changed environment or any significant increased risk of harm beyond that which would ordinarily accompany such a crime. (People v. Williams, supra, 7 Cal.App.5th at pp. 669-670 ["the robbers had good reason to move the victims to the back of the store to achieve their objective of emptying the cages and safes of merchandise without detection by customers or other people outside the store. Their objective was robbery, not harm to the store employees, and the record does not contain sufficient evidence that moving the victims to the backs of the stores resulted in an increased risk of harm from the robberies"]; cf. People v. Leavel, supra, 203 Cal.App.4th at p. 836 [concluding that "forcing [the robbery victim] outside in the dark increased the risk of harm to her from a possible escape attempt," and noting the defendant "could have secured her in one spot in the home and left her alone while he searched the house and escaped with the loot. . . . He had no cause to manhandle [the victim] to achieve his robbery objective"].)
Accordingly, we conclude defendant's convictions for simple kidnapping (counts nine and ten) must be reversed for lack of substantial evidence that the victims' movement was "substantial in character." (See People v. Williams, supra, 7 Cal.App.5th at pp. 671-672; People v. Martinez, supra, 20 Cal.4th at p. 236.)
II. Presentence Conduct Credits.
Defendant contends, and the People concede, the trial court further erred by failing to award him presentence custody credits based upon its mistaken view that such credits were not available because defendant received an indeterminate life sentence. We agree the trial court's decision and reasoning were flawed. (See People v. Philpot (2004) 122 Cal.App.4th 893, 908 [a presentence defendant is entitled to full custody credits pursuant to section 4019 unless limited to 15 percent of actual time pursuant to section 2933.1]; § 667.5, subd. (c) [a defendant convicted of robbery is limited to 15 percent presentence custody credits]; § 2933.1, subd. (a) ["Notwithstanding any other law, any person who is convicted of a felony offense listed in subdivision (c) of Section 667.5 shall accrue no more than 15 percent of worktime credit, as defined in Section 2933"].) Under the aforementioned Penal Code provisions, defendant, convicted of three counts of robbery (among other counts), is entitled to 15 percent presentence custody credits, which in this case amounts to 84 days.
DISPOSITION
Defendant's convictions on counts nine and ten for simple kidnapping are reversed. The matter is remanded to the trial court with instructions to modify the abstract of judgment to award defendant 84 additional days of conduct credits. In all other regards, the judgment is affirmed.
/s/_________
Jenkins, J. We concur: /s/_________
McGuiness, Acting P.J. /s/_________
Siggins, J.
Retired Presiding Justice of the Court of Appeal, First Appellate District, Division Three, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.