People v. Vega

• Decision Date: 02 October 2012
• Docket Number: G045866
• Parties: THE PEOPLE, Plaintiff and Respondent, v. ANTHONY MICHAEL VEGA, JR., Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

THE PEOPLE, Plaintiff and Respondent, v. ANTHONY MICHAEL VEGA, JR., Defendant and Appellant.

G045866

COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE

Dated: October 2, 2012

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Super. Ct. No. 09NF3398)

OPINION

Appeal from a judgment of the Superior Court of Orange County, Gary S. Paer, Judge. Affirmed.

Tracy A. Rogers, 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, Randall Einhorn, Susan Miller and Scott Taylor, Deputy Attorneys General, for Plaintiff and Respondent.

Defendant Anthony Michael Vega, Jr., appeals from a conviction of kidnapping for robbery. (Pen. Code, § 209, subd. (b).)¹ He argues first, that there was insufficient evidence to support the conviction, and second, that the jury instructions relating to this charge were prejudicially misleading, warranting reversal. We disagree with both of defendant's claims and affirm the judgment.

IFACTS

On November 29, 2008, at about 4:00 in the afternoon, Chin Chai Lee was at home planting flowers in her front yard. A man came up behind her and pulled her up by the arm, while putting a gun at her side. He pushed her to the front door of the house. The front door was locked, so he kicked it in.

The man pulled Chin inside the house and she screamed to her son, "Henry, Henry, there's a burglar here."² Henry came out of his bedroom into the hallway and the man pointed the gun at him. The man then pushed Chin into Henry's room and told the two of them to lie down on the floor, on their stomachs. They complied. The man said, "If you don't move, we won't hurt you." He also asked if anyone else was in the house.

The man kept asking where money and the safe were. While Chin and Henry were lying on the floor, the man who had herded them into the bedroom was talking to a second man who had entered the house. The first man stood guard over Chin and Henry while the second man was elsewhere in the house. Henry said the first man used a walkie-talkie to speak to a third man, who was waiting outside with a car.

The burglars cut the telephone lines. One used a shirt to tie up Henry, but they did not tie up Chin. After Chin and Henry heard the men drive off, they went to a neighbor's house to call for help.

They saw that all the rooms were messed up as though the men had gone through every one. Cash, jewelry and other items had been taken.

IIDISCUSSION

A. Kidnapping for Robbery:

Defendant first argues that there was insufficient evidence to show that he committed kidnapping for robbery. He also argues that, given this, his conviction for kidnapping for robbery violates his due process and fair trial rights. Inasmuch as we conclude there is substantial evidence supporting the jury's finding, we disagree.

(1) Standard of Review—

'""To determine the sufficiency of the evidence to support a conviction, an appellate court reviews the entire 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. Burney (2009) 47 Cal.4th 203, 253.) "[R]eview for sufficiency of evidence entails not the determination whether the reviewing court itself believes the evidence at trial establishes guilt beyond a reasonable doubt, but, instead, whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (Jackson v. Virginia (1979) 443 U.S. 307, 317-320.)" (People v. Rodriguez (1999) 20 Cal.4th 1, 11.) Further, the reviewing court "presume[s] in support of the judgment 'the existence of every fact the trier could reasonably deduce from the evidence.' [Citation.]" (People v. Vines (2011) 51 Cal.4th 830, 869.)

(2) Penal Code section 209—

California statutory law provides that, "[a]ny person who kidnaps or carries away any individual to commit robbery [or] rape" is guilty of aggravated kidnapping "if the movement of the victim is 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)(1), (2), italics added.) California case law characterizes this as a two-part test. (People v. Robertson (2012) 208 Cal.App.4th 965, 980, 983; People v. James (2007) 148 Cal.App.4th 446, 453-454.) The two prongs of this test are "not mutually exclusive, but interrelated." (People v. Rayford (1994) 9 Cal.4th 1, 12; accord, People v. Robertson, supra, 208 Cal.App.4th at p. 983.) Hence, whether the movement was merely incidental to the commission of the intended underlying offense is related to whether the movement increased the risk of harm to the victim. Defendant argues that neither prong has been satisfied in the instant case.

(3) Incidental Movement—

In assessing the first prong, regarding whether there was more than incidental movement, the distance the victim was forcibly moved is relevant but not dispositive. (People v. Dominguez (2006) 39 Cal.4th 1141, 1152.) Moreover, "There is . . . no minimum distance a defendant must move a victim to satisfy the first prong. [Citations.]" (People v. Vines, supra, 51 Cal.4th at p. 870.) Rather, the inquiry takes into account the surrounding circumstances, including the nature of the crime and the environment in which the victim was moved. (People v. Dominguez, supra, 39 Cal.4th at pp. 1152-1153.) The elements of the crime are unsatisfied where the change in location is trivial and has "'no bearing on the evil at hand.'" (People v. Daniels (1969) 71 Cal.2d 1119, 1138, fn. omitted, superseded by statute on another point as stated in People v. Robertson, supra, 208 Cal.App.4th at p. 980.)

Chin was taken a distance of 25 feet from the spot where she was gardening to the front door. It was another 10 feet from the front door to where the hallway began. The hallway within the house was a further 22 feet long. The total distance Chin was forcibly moved to Henry's bedroom is unclear, but appears to have been no more than 60 feet.

Defendant states that because the movement of Chin only facilitated the commission of the robbery, it must have been incidental, and therefore does not support the conviction of kidnapping for robbery. Conversely, the prosecution states that because Chin's forced movements were unnecessary for the robbery, the conviction must be affirmed. As we view it, forcing Chin inside certainly facilitated the robbery, as it reduced the likelihood that defendant and his accomplices would be detected. By corralling Chin and Henry in one room where they could be interrogated with greater ease, the movement also aided Vega's search for money and valuables. However, the movement was necessary only to defendant's plan to avoid detection, not to the robbery itself. Further, as we shall discuss, the "necessity" of the movement does not control whether it was merely incidental to the robbery.

Since People v. Daniels, supra, 71 Cal. 2d 1119 was decided in 1969, courts have wrestled with the relationship between incidental movement and movement necessary to the target crime. The Supreme Court in Daniels held that because the defendants' "primary intent" was to commit robberies and rapes, and the brief movements of the victims from room to room were "solely to facilitate such crimes" rather than to move the victims "just for the sake of moving" them, there had been no violation of section 209. (Id. at pp. 1130-1131, 1140.) This suggested that only movement that was unnecessary to the commission of a robbery or rape would suffice for aggravated kidnapping. (Id. at pp. 1139-1140.)

Following this suggestion, many appellate courts have held that where the movement is "unnecessary," gratuitous, or excessive for the commission of the rape or robbery, then aggravated kidnapping has been committed. (See People v. Corcoran (2006) 143 Cal.App.4th 272, 279-280 ["seclusion of the victims in the back office under threat of death was clearly 'excess and gratuitous'" supporting the kidnapping for robbery convictions]; People v. Leavel (2012) 203 Cal.App.4th 823, 835 [movement of the victim between different rooms in her house was "unnecessary," requiring affirmation of the conviction].) Conversely, where the movement is "integral" to the target offense, a court has overturned the kidnapping for robbery conviction. (People v. John (1983) 149 Cal.App.3d 798, 806-807.) However, where the movement of the victim is only necessary to evade detection, but not inherent in the underlying crime, aggravated kidnapping has been affirmed. (People v. Salazar (1995) 33 Cal.App.4th 341, 347.)

Notwithstanding this line of authority, sometimes movement that is arguably necessary to complete the target offense is nonetheless held to be merely incidental to that crime and thus not supportive of a conviction for kidnapping for robbery. (See People v. Washington (2005) 127 Cal.App.4th 290 [the movement of a victim within a bank's premises to open a vault].) Thus, whether the movement is necessary to the underlying crime is not determinative of whether the movement can support a conviction for aggravated kidnapping.

Here, Chin was forcibly moved a maximum of 60 feet. Defendant cites certain cases in which movement of a similar or greater distance was held insufficient for kidnapping.³ The prosecution, on the other hand, cites cases in...