People v. Arias , 193 Cal. App. 4th 1428 ( 2011 )

Opinion

KUMAR,J.^*

Defendant, a member of the Rebels street gang, went on a mission late one evening to locate and “blast” a member of a rival gang—The Magicians Club (TMC). In an effort to find TMC gang members, defendant summoned 17-year-old Wanner Luna out of his apartment and pointed a gun at him. Defendant asked him whether he was a member of TMC and if he knew the location of TMC gang members. Luna denied membership in the rival gang. Nevertheless, defendant, still holding the gun, walked behind Luna for approximately 15 feet to Luna’s apartment, so that defendant could search for TMC gang members. Defendant left the apartment after finding no TMC gang members. Defendant then encountered Byron Delcid in the hallway. Defendant pointed the gun at him and asked if he was a TMC gang member. Delcid said he was not a member of the gang, whereupon defendant ordered him into an apartment and left the scene.

A jury convicted defendant of kidnapping (Pen. Code, § 207, subd. (a))¹ and two counts of assault with a semiautomatic firearm (§ 245, subd. (b)). In addition, the jury found defendant used a firearm in the commission of the offenses (§ 12022.53, subd. (b) [kidnapping]; § 12022.5, subd. (a) [assaults]) and that the offenses were committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(C)). He was sentenced to 20 years- four months in state prison and ordered to pay statutory fees/fines.

Defendant contends the trial court improperly denied his motion for judgment of acquittal on kidnapping; there was insufficient evidence to establish the gang enhancement; the trial court erred by punishing him for both firearm and gang enhancements; the trial court did not award him the appropriate amount of presentence custody credit; and the trial court improperly imposed court facilities assessments. We reject defendant’s contentions, require modification of the abstract of judgment to reflect less presentence custody credit, and affirm the judgment.

I. FACTS

A. Prosecution Evidence

1. Defendant Begins His Search for TMC Gang Members

Wanner Luna began his testimony by stating, “I’m not here to press charges. I’m just here to say what happened that night.” He was concerned a street gang would “go after” him because he testified.

The events he testified to occurred near midnight on December 12, 2008. It was then that Luna heard someone calling his name from outside his apartment building. He exited the building and observed defendant standing with a girl.

Defendant pointed a gun toward Luna’s chest or stomach. Defendant asked if Luna knew the location of TMC gang members and whether Luna was a TMC gang member. Luna replied, “No.” Defendant told Luna to lift up his shirt so defendant could examine Luna’s stomach for TMC tattoos. Luna complied—he did not have any TMC tattoos.

Luna was “scared” and “just following [defendant’s] directions.” Defendant and the female walked behind Luna for about 15 feet to Luna’s apartment door. Defendant still had the gun. Luna took the situation seriously and asked defendant to “chill.” He went to the apartment because he was afraid and defendant had a gun. Although defendant entered the apartment, Luna did not invite defendant into his apartment and did not want him to enter his apartment.

When they reached the apartment, defendant said, “I’m telling you again, where the TMC’s at [sic]?” Luna said he did not know the location of the gang members, and asked defendant to leave. Defendant, however, ascended the apartment’s stairs to the second story. Luna followed. He explained, “[I] thought [defendant] was going ... to do something like check the rooms. And my mom was sleeping, and he had a gun. . . .” Defendant eventually left the apartment. Luna locked the door and could hear defendant confront another individual.

2. Defendant Encounters Byron Delcid

After leaving Luna’s apartment, defendant saw Byron Delcid in the hallway. Delcid was in the apartment building to visit his brother-in-law. Defendant pointed the gun at Delcid’s stomach, asked him if he was a TMC gang member, and instructed him to lift up his shirt. Delcid lifted his shirt, showed defendant that he had no tattoos, and indicated he was not a TMC gang member. He was afraid defendant might enter the apartment and harm Delcid’s family.

Delcid’s sister-in-law opened the apartment door. Defendant told Delcid to enter the apartment and close the door. He followed defendant’s instruction.

3. The Arrest

Near midnight on December 12, 2008, Los Angeles Police Department (LAPD) Officer Otis Antoine received a radio call regarding a male and female suspect. He then observed defendant and Marelin Martinez (Martinez) walking on Vine Street. They matched the description of the suspects.

The officer called defendant over. Defendant approached the officer. He placed his hands in the air, whereupon a handgun fell off of defendant’s person and hit the ground.² Defendant was arrested and spontaneously stated, “Fuck TMC. Pm down here to blast a fool. They shot me in my heel. Fuck TMC.”

4. Gang Evidence

LAPD Officer Melvin Martinez was assigned to monitor the Rebels street gang. The officer had approximately four consensual encounters with defendant wherein defendant admitted he was a member of the Rebels. Further demonstrating his gang membership, defendant had gang-related tattoos on his body, including but not limited to, the word “Rebels” tattooed on his eyebrow and stomach as well as an “R” tattooed on the back of his head. Defendant’s female accomplice was also an admitted member of the Rebels and had tattoos consistent with her membership.

TMC was a rival of the Rebels gang. The building where the crimes were committed was located in an area considered to be TMC territory.

Officer Martinez opined the crimes benefited the Rebels because they enhanced the gang’s reputation. He explained that, by seeking to shoot a member of a rival gang who harmed a Rebels gang member, the Rebels gang member demonstrates strength. Indeed, if a Rebels gang member does not retaliate under these circumstances, he could be assaulted by his fellow gang members or removed from the gang. In addition, when a gang member commits a crime in a rival gang member’s territory, he elevates his status within his gang.

The officer further opined the crimes were committed in association with a criminal street gang because two gang members were together. The presence of a second gang member allowed for a “lookout” and a witness to vouch for the gang member who committed the crimes.

B. Defense

Defendant testified on his own behalf. He met Luna at a juvenile camp he was required to attend due to the commission of a prior crime. At the camp, the two became best friends. On December 12, 2008, he spoke to Luna on the phone before going to his apartment. Luna said he had not seen defendant in a while so defendant responded, “[Djon’t trip. I’ll be there. Just give me a few minutes.” Luna provided defendant with directions to the apartment and asked defendant to scream Luna’s name when he arrived. According to defendant, Luna’s apartment was not in TMC territory.

Defendant arrived at Luna’s apartment approximately 10 minutes later with Martinez. They screamed Luna’s name and Luna came outside. Defendant did not point a gun at Luna and he was not there to shoot TMC gang members. He went into Luna’s apartment and the two conversed on the couch. Defendant and Martinez left after about 20 minutes.

Defendant encountered Delcid in the hallway and said, “[Wjhat’s up fool?” Defendant did not believe Delcid was a gang member and did not say any “gang-related stuff’ to Delcid. After Delcid told defendant his name, defendant exited the building. Defendant may have accidently displayed his gun to Delcid because the gun was in his waistband and was visible at some point. Delcid was afraid because of defendant’s tattoos.

Defendant did not make the statement regarding TMC to the arresting officer. He had not been shot in the foot by a TMC gang member.

For the most part, Martinez provided testimony that was consistent with defendant’s testimony. Martinez indicated both she and defendant were Rebels gang members. She explained Luna invited the two of them into the apartment. Although defendant was carrying a gun, he did not point it at Luna or ask Luna to lift his shirt.

When they encountered Delcid, defendant asked Delcid who he was but Martinez indicated she knew Delcid and they should leave the building. Defendant did not point a gun at Delcid.

Raymond Cuevas, a former Rebels gang member who had spent time in prison for committing robbery, opined that there was merely a “little animosity” between TMC and the Rebels.

Defendant’s investigator, Charles Watson, questioned Luna about the gun. Luna told Watson that defendant did not have a gun when he came to the apartment.

C. Rebuttal

LAPD Officer James Fillmore explained the origins of TMC and the Rebels. He opined the two gangs were rivals and that Luna’s building was located in TMC territory. Luna was a former member of the White Fence gang—another rival of the Rebels.

II. DISCUSSION

A. The Motion for Judgment of Acquittal

“On a motion by defendant under section 1118.1, a trial court must ‘order the entry of a judgment of acquittal of one or more of the offenses charged in the accusatory pleading if the evidence then before the court is insufficient to sustain a conviction of such offense or offenses on appeal.’ [Citation.] ‘The purpose of a motion under section 1118.1 is to weed out as soon as possible those few instances in which the prosecution fails to make even a prima facie case.’ [Citation.]” (People v. Lopez (2010) 185 Cal.App.4th 1220, 1228 [111 Cal.Rptr.3d 232].)

In reviewing the trial court’s ruling denying a motion for judgment of acquittal, we apply the same standard used to assess whether sufficient evidence supports the conviction. (People v. Cuevas (1995) 12 Cal.4th 252, 261 [48 Cal.Rptr.2d 135, 906 P.2d 1290].) That standard requires us to review the record “ ‘ “in the light most favorable to the prosecution to determine whether it contains evidence that is reasonable, credible, and of solid value, from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt.” ’ [Citations.]” (People v. Valdez (2004) 32 Cal.4th 73, 104 [8 Cal.Rptr.3d 271, 82 P.3d 296].)

In order to establish a kidnapping under section 207, subdivision (a), the prosecution must prove “ ‘(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. Bell (2009) 179 Cal.App.4th 428, 435 [102 Cal.Rptr.3d 300].) In determining whether the third element, asportation, has been satisfied, a trier of fact may consider “not only the actual distance the victim is moved, but also such factors as whether that movement increased the risk of harm above that which existed prior to the asportation, decreased the likelihood of detection, and increased both the danger inherent in a victim’s foreseeable attempts to escape and the attacker’s enhanced opportunity to commit additional crimes.” (People v. Martinez (1999) 20 Cal.4th 225, 237 [83 Cal.Rptr.2d 533, 973 P.2d 512].)

Defendant contends the trial court erred by denying his section 1118.1 motion because there was insufficient evidence of asportation. In order to find merit to this claim, we would have to conclude that no rational trier of fact could have decided this element was satisfied after the prosecution’s case-in-chief. Based on the record, we are not inclined to reach such a conclusion and, therefore, reject defendant’s claim.³

A rational trier of fact could have concluded defendant was on a mission to locate and shoot a TMC gang member and, in an effort to do so, he pointed a gun at Luna, and followed him to the apartment to search for TMC gang members. Luna testified he did not want defendant to enter his apartment but was “scared” and “just following [defendant’s] directions.” A rational trier of fact could have concluded that Luna was involuntarily moved 15 feet to the inside of his apartment in order to allow defendant to facilitate his search for TMC gang members.

The movement of Luna increased his risk of harm in that he was moved from a public area to the seclusion of his apartment. Similarly, by scaring Luna into moving away from a public place, it was less likely defendant would have been detected if he had committed an additional crime. These factors support the asportation requirement for kidnapping. (See People v. Shadden (2001) 93 Cal.App.4th 164, 168-169 [112 Cal.Rptr.2d 826] [movement of nine feet to the back of a store meets asportation requirement of kidnapping]; People v. Smith (1995) 33 Cal.App.4th 1586, 1594 [40 Cal.Rptr.2d 31] [movement of victim from driveway “open to street view” to camper increased risk of harm to victim].)

We respectfully disagree with the dissent’s assertion that we have applied the wrong standard in assessing the asportation element of simple kidnapping. Unlike aggravated kidnapping, asportation for simple kidnapping does not require a finding of an increase in harm to the victim or other contextual factors. (People v. Bell, supra, 179 Cal.App.4th 428, 436-437, citing People v. Martinez, supra, 20 Cal.4th at p. 237.) However, Martinez expressly holds that the increase of harm and other contextual factors may be considered in determining whether asportation for simple kidnapping has been proved. (People v. Martinez, supra, 20 Cal.4th at p. 237.)

We recognize Luna was equivocal in his testimony. However, his fear caused him to be a very reluctant witness. It is true that a rational trier of fact could have concluded Luna simply walked away from defendant and defendant followed Luna to his apartment for a friendly chat. But, a reviewing court is not permitted to reverse a conviction on the ground of insufficient evidence simply because the facts could be reconciled with a finding of innocence, or of guilt of a lesser crime. (See People v. Hill (1998) 17 Cal.4th 800, 849 [72 Cal.Rptr.2d 656, 952 P.2d 673].) Rather, we must construe the facts in the light most favorable to the prosecution. After doing so, we hold the trial court did not err in denying defendant’s motion for judgment of acquittal.

B.-E^*

III. DISPOSITION

The judgment is modified to reflect 449 actual days of presentence credit and 67 days of conduct credit. The trial court shall forward an amended abstract of judgment reflecting the conduct credits to the Department of Corrections and Rehabilitation. In all other respects the judgment is affirmed.

Kriegler, J., concurred.

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

1 All further statutory references are to the Penal Code unless otherwise indicated.

2 Delcid was shown a photograph of the gun and identified it as the one that defendant pointed at him.

3 Defendant limits his argument to the asportation element. We note that, in assessing the first two elements, the movement may be accomplished by “any . . . means of instilling fear” in the victim. (People v. Majors (2004) 33 Cal.4th 321, 326 [14 Cal.Rptr.3d 870, 92 P.3d 360].) Luna testified he was following defendant’s directions and did not want defendant in his apartment. In addition, he explained he went to his apartment because he was afraid and defendant had a gun. This evidence supports a conclusion that Luna moved to his apartment out fear of noncompliance with defendant’s will.

* See footnote, ante, page 1428.