People v. Allen

Decision Date11 June 1997
Docket NumberNo. A072610,A072610
Citation64 Cal.Rptr.2d 497,55 Cal.App.4th 943
CourtCalifornia Court of Appeals Court of Appeals
PartiesPreviously published at 55 Cal.App.4th 943 55 Cal.App.4th 943, 97 Daily Journal D.A.R. 7426 The PEOPLE, Plaintiff and Respondent, v. Tyrone Miguel ALLEN, Defendant and Appellant.

Jeffrey A. Schafer, San Francisco, for appellant.

Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Ronald A. Bass, Senior Assistant Attorney General, Ronald E. Niver, Supervising Attorney General, Bruce Ortega, Deputy Attorney General, for respondent.

INTRODUCTION

RUVOLO, Associate Justice.

Appellant appeals from criminal convictions for carjacking, kidnapping of a person under the age of 14, first degree burglary, second degree robbery, receiving stolen property, and auto theft following a bifurcated jury trial of two consolidated cases.

At the conclusion of the bifurcated portion of the trial, the jury found true allegations that appellant suffered a prior conviction for voluntary manslaughter in 1985, qualifying both under the "Three Strikes" law (qualifying prior conviction) and as a "serious felony" sentencing enhancement, that appellant suffered a prior state prison term following a conviction of receiving stolen property in 1992; and that the convictions for carjacking, kidnapping, and robbery were committed while appellant was on bail on his own recognizance (OR release). On December 14, 1995, the court sentenced appellant to serve an aggregate state prison term of 19 years, 4 months. This appeal followed.

In the published portion of this opinion, we conclude the jury could properly consider the nature, character, and purpose of the victim's asportation, in addition to actual measured distance, when determining whether the movement was "substantial" as required for the crime of kidnapping. We remand the case for a further sentencing hearing at which the trial court may determine if discretion

should be exercised in striking appellant's prior conviction and the 1-year prior prison term enhancement imposed. Based on the People's concession, the conviction for receiving stolen property is reversed. The judgment entered and sentence imposed are affirmed in all other respects.

I PROCEDURAL HISTORY AND ASSIGNMENTS OF ERROR

Appellant's multiple convictions followed the consolidation and trial of two criminal informations filed by the San Francisco County District Attorney's Office. The first information (No. 158066, sometimes referred to herein as the "066 action") charged appellant with first degree burglary (Count I) and receiving stolen property (Count II). Also included were allegations that appellant suffered a qualifying prior conviction within the meaning of the Three Strikes law based upon a 1985 voluntary manslaughter conviction, and that appellant also suffered a prior prison term resulting from a 1992 receiving stolen property conviction.

Following arraignment and after numerous continuances, appellant was released on his own recognizance on August 3, 1995.

A subsequent information was filed by the district attorney on September 11, 1995, charging appellant with new crimes alleged to have been committed by him while on OR release. The new information included charges of carjacking (Count I), kidnapping during the commission of a carjacking (Count II), attempted kidnapping during commission of a carjacking (Count III), kidnapping (Count IV), second degree robbery (Count V), and auto theft (Count VI). This second information (No. 161194, sometimes referred to herein as the "194 action") also included sentencing enhancement allegations that appellant suffered prior conviction of a serious felony, that appellant suffered a prior prison term following his 1992 conviction for receiving stolen property (also alleged as a sentencing enhancement in the 066 action), and new enhancements based on the allegation that appellant committed the crimes charged in the 194 action while on OR release. Also included was the allegation of appellant's qualifying prior conviction in 1985 within the meaning of the Three Strikes law.

Over the ensuing months there was considerable law and motion activity relating to the second information, the details of which are not pertinent to this appeal, with the exceptions that the trial court granted appellant's motion to dismiss Count II in the 194 action (kidnapping in the commission of a carjacking), and granted respondent's motion to consolidate the 066 and 194 actions. As a result of amendments, counts in the 194 action which were presented to the jury at the commencement of trial included carjacking (Count I), kidnapping of a victim under the age of 14 (Count IV), second degree robbery (Count V), and auto theft (Count IV). However, the counts contained in the 066 action remained unchanged. Similarly, the sentencing enhancements and qualifying prior conviction previously recounted in both informations were unchanged and bifurcated upon appellant's request.

On November 9, 1995, the jury returned its verdict finding appellant guilty as charged on all remaining counts in the 066 and 194 actions. Following presentation of evidence relating to the bifurcated sentencing enhancements and qualifying prior conviction later that same day, the jury also found true each and all of the alleged enhancements.

Thereafter, the trial court sentenced appellant to an aggregate state prison term of 19 years, 4 months in the 066 action, calculated as follows: The court selected the carjacking count in the 194 action as the base term, and imposed the midterm of 5 years for this count. That term was doubled to 10 years as a result of the prior manslaughter conviction, and a consecutive term of 2 years was added based upon the OR enhancement. Appellant was sentenced to 16 months for the burglary conviction, to which the court added a 5-year serious felony enhancement and a 1-year prior prison term enhancement.

The trial court also sentenced appellant to a concurrent 8-year midterm for the kidnapping conviction in the 194 action, which was doubled to 16 years as a result of the manslaughter Assignments of error in this timely appeal include the following: (1) The kidnapping conviction was not supported by sufficient evidence, particularly as to the required element of "asportation of the victim;" (2) the trial court erred in instructing the jury on the element of asportation in the crime of kidnapping; (3) the trial court erred in instructing the jury with the 1994 revision to CALJIC No. 2.90; (4) remand for resentencing is required under People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 53 Cal.Rptr.2d 789, 917 P.2d 628 to determine whether discretion should be exercised in striking appellant's prior manslaughter conviction; and (5) the case should be remanded for a resentencing hearing to determine whether the court should exercise its discretion in striking the 1-year prior prison term enhancement imposed.

conviction. Appellant was sentenced to a doubled 6-year term on the robbery conviction in the 194 action, which was also ordered to run concurrently. A doubled 4-year term was imposed for the auto theft conviction in the 194 action, and an 8-month term was imposed for the conviction of receiving stolen property count in the 066 action. To the counts on which appellant was convicted in the 194 action, other than the carjacking count, the court added a total of 3 years for the OR enhancements, and ordered all of this additional time to be served concurrently with the 19 years, 4 months imposed.

II

THE KIDNAPPING CONVICTION IS SUPPORTED BY SUBSTANTIAL EVIDENCE AND THE JURY WAS PROPERLY INSTRUCTED AS TO THE ELEMENT OF "ASPORTATIONN"

The first two assignments of error are inextricably interrelated and are therefore discussed together. Appellant raises both legal and factual issues, claiming the court instructed the jury improperly as to the legal standard for the "asportation" element of the crime of kidnapping, and that had the proper standard been applied, there was a lack of substantial evidence presented which would support a conviction for kidnapping.

The standard of review applied to determine the factual sufficiency of the evidence to support a conviction for kidnapping directs appellate courts to view the evidence in the light most favorable to the respondent and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. (People v. Lewis (1990) 50 Cal.3d 262, 277, 266 Cal.Rptr. 834, 786 P.2d 892.) Therefore, we review the evidence presented at trial in that light. 1

On August 7, 1995, May Sun-Young and her family lived at 2951 Treat Street in San Francisco. That morning, Ms. Sun-Young was on her way to take her 7-year old daughter, Kirstie, to summer camp and stopped her automobile briefly in the driveway to close her garage door manually as she was backing out onto the street.

As Ms. Sun-Young closed her garage door, a man approached her from behind and said, "Excuse me, can you do me a favor?" While turning around she saw the man later identified as appellant 2 getting into her vehicle, whose engine was still running. He then locked the car doors. Kirstie was still in the vehicle with her seatbelt on and began crying. Because the driver's side window was rolled down about seven inches, Ms. Sun-Young put her arms through the window and struggled with appellant in an attempt to reach the ignition key and turn off the engine.

Appellant then released the parking brake, put the vehicle in reverse, and backed out of the driveway with Kirstie inside and Ms. Sun-Young running alongside the vehicle still attempting to reach the ignition key. The vehicle backed across Treat Street, which was a two-lane road with two parking lanes, until it hit the opposite curb and came The jury instruction given regarding the simple...

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2 cases
  • People v. Rodriguez
    • United States
    • California Court of Appeals Court of Appeals
    • July 30, 1998
    ...Martinez (1997) 56 Cal.App.4th 1268, 66 Cal.Rptr.2d 365 review granted (1997) 68 Cal.Rptr.2d 474, 945 P.2d 779 ; People v. Allen (1997) 55 Cal.App.4th 943, 64 Cal.Rptr.2d 497 review granted (1997) 67 Cal.Rptr.2d 514, 943 P.2d 723.) In People v. Rayford (1994) 9 Cal.4th 1, 14, 36 Cal.Rptr.2d......
  • People v. Allen
    • United States
    • California Supreme Court
    • September 17, 1997
    ...PEOPLE, Respondent v. Tyrone Miguel ALLEN, Appellant. No. S062860. Supreme Court of California. Sept. 17, 1997. Prior report: Cal.App., 64 Cal.Rptr.2d 497. Appellant's petition for review The issues to be argued before this court shall be limited to whether factors in addition to actual dis......

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