People v. Washington

• Decision Date: 03 March 2005
• Docket Number: No. B170486.,B170486.
• Citation: 25 Cal.Rptr.3d 459,127 Cal.App.4th 290
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Mark Johahn WASHINGTON et al., Defendants and Appellants.

25 Cal.Rptr.3d 459

127 Cal.App.4th 290

The PEOPLE, Plaintiff and Respondent, v. Mark Johahn WASHINGTON et al., Defendants and Appellants.

No. B170486.

Court of Appeal, Second District, Division 3.

March 3, 2005.

Certified for Partial Publication.^*

As Modified March 28, 2005.

Review Denied June 15, 2005.

David M. Thompson, under appointment by the Court of Appeal, for Defendant and Appellant Mark Johahn Washington.

Ava R. Stralla, under appointment by the Court of Appeal, for Defendant and Appellant Evyn Delayne Mack.

Bill Lockyer, Attorney General, Robert R. Anderson and Pamela C. Hamanaka, Assistant Attorneys General, Jaime L. Fuster and Chung L. Mar, Deputy Attorneys General, for Plaintiff and Respondent.

KLEIN, P.J.

Mark Johann Washington and Evyn Delayne Mack appeal the judgments entered after conviction by jury of two counts of kidnapping for the purpose of robbery, three counts of robbery, three counts of assault with a firearm and nine counts of false imprisonment. (Pen.Code, §§ 209, subd. (b)(1), 211, 245, subd. (a)(2), 236.)¹ The jury found Washington and Mack both personally used a firearm in the commission of each offense and that each offense was committed for the benefit of a criminal street gang. (§§ 12022.53, subd. (b), 186.22, subd. (b)(1).) We reverse the convictions of kidnapping for the purpose of robbery but otherwise affirm the judgments and remand for resentencing.

SUMMARY

Appellants committed a take-over robbery of a bank. While Mack robbed the tellers, Washington moved the bank manager from her office to the vault room, a distance of approximately 25 feet, and forced the manager to open the vault with the assistance of a teller who moved from the teller area to the vault room, a distance of approximately 15 feet. Appellants took cash from the vault, then fled.

At the close of the People's evidence, appellants sought dismissal of the counts that alleged kidnapping for the purpose of robbery on the ground the movement of the manager and the teller was merely incidental to the robbery, citing People v. Daniels (1969) 71 Cal.2d 1119, 1139, 80 Cal.Rptr. 897, 459 P.2d 225. Daniels held a conviction of kidnapping for the purpose of robbery in violation of section 209, subdivision (b), commonly referred to as 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." (People v. Martinez (1999) 20 Cal.4th 225, 232, 83 Cal.Rptr.2d 533, 973 P.2d 512; People v. Daniels, supra, at p. 1139, 80 Cal.Rptr. 897, 459 P.2d 225.)²

The trial court noted the absence of any published case applying Daniels to a bank robbery situation in which the victims are transported from a public area of a bank to the secure setting of a vault room. The trial court found the movement of the victims in this case increased the risk of harm and, therefore, the evidence presented a jury question as to whether appellants had committed aggravated kidnapping.

On appeal, appellants renew their challenge to the counts alleging kidnapping for the purpose of robbery. They also claim insufficient evidence in several other respects, sentencing error and an error in the abstract of judgment.

In the published portion of the opinion, we conclude the brief movement of the manager and the teller from the public area of the bank to the vault room was incidental to the robbery within the meaning of Daniels. Accordingly, we reverse the convictions of kidnapping for the purpose of robbery and remand for resentencing on the remaining counts and enhancements. In the unpublished portion of the opinion, we reject appellants' remaining claims.

BACKGROUND

1. The bank robbery.

On April 25, 2002, at approximately 9:00 a.m., Carol Sierra saw Washington emerge from a Ford Mustang parked next to her car and enter the Washington Mutual Bank in Palmdale carrying a sawed-off shotgun.

Tellers Jerome Maudlin and Diane Reynoso were assisting their first customers of the day. The lobby of the bank contained a line of customers. Mack jumped onto the counter and announced, "This is a mother fucking robbery, nobody push any buttons, don't touch anything. Everybody get down on the floor." Mack had what appeared to be a handgun wrapped in a blue bandanna and he wore a dark blue or black bandanna over the lower portion of his face. When Mack jumped to the teller area, the object in the blue bandanna struck Maudlin below the right eye. The object felt hard, like a piece of metal, and the blow left a mark on Maudlin's face. Mack grabbed Reynoso by the hair and threw her to the floor.

Mack directed Maudlin to empty the cash drawers into a cloth bag. When Maudlin had difficulty, Reynoso rose to assist him. Mack alternately pointed the bandanna-covered object at Maudlin and Reynoso as they emptied cash drawers at his direction.

Bank manager Debbie Reif was speaking to a 911 operator when Washington entered her office wearing a dark blue ski mask over his face and carrying a sawed-off shotgun. Washington pointed the shotgun at Reif's head and demanded "the money." Reif indicated she needed a second set of keys to open the vault, then went to the door of the office and asked Reynoso to assist her. Reynoso left the tellers' area and went with Reif and Washington to the vault room.

Rief testified she traveled a distance of approximately nine feet from the office to the door of the vault room and five or six additional feet into the vault room. Reynoso testified she moved approximately 15 feet from the teller area to the vault room but had to return to the teller area to retrieve her keys, which Reif needed to open the vault.

After Reynoso gave Rief her keys, Mack pressed the bandanna-covered object into Reynoso's chest and ordered her to the floor. Rief opened the vault and removed cash that Washington placed into a bag. One of the robbers said, "Thank you very much. Have a nice day," before they walked out the back door of the bank. The initial loss to the bank was approximately $160,000.

2. Investigation.

Shortly after the robbery, sheriff's deputies traced the Mustang parked in front of the bank to Washington at an address on Olive Drive in Palmdale. Deputies went to the address and spoke to Darnetta Wheat, who indicated Washington had just telephoned her from a residence on Via Del Rio in Palmdale, approximately one mile northeast of the bank. At about 10:30 a.m., sheriff's deputies found Washington, Mack and two females in the Via Del Rio residence. At a field showup, Reynoso and Maudlin each indicated the physical appearance of Washington and Mack matched the physical characteristics of the robbers.

In the Via del Rio residence, deputies found cash totaling $128,835, including five bills whose serial numbers the bank previously had recorded in the event of a robbery. A loaded shotgun was found in the bathroom closet.

3. Verdicts, findings and sentencing.

The jury found appellants guilty as charged and found true personal use of a firearm and criminal street gang enhancements as to each appellant and each count. The trial court sentenced Washington and Mack to substantial prison terms, in each case selecting kidnapping for the purpose of robbery as the principal term.³

DISCUSSION

1. The evidence is insufficient to support the convictions of kidnapping for the purpose of robbery.

Appellants contend application of the two-part Daniels test to the facts of this case reveals the movement of bank manager Reif and teller Reynoso to have been merely incidental to the commission of robbery. Thus, the evidence was insufficient to support a conviction of kidnapping for the purpose of robbery.

a. General principles.

As previously noted, Daniels held a conviction of kidnapping for the purpose of robbery 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." (People v. Martinez, supra, 20 Cal.4th at p. 232, 83 Cal.Rptr.2d 533, 973 P.2d 512; People v. Daniels, supra, 71 Cal.2d at p. 1139, 80 Cal.Rptr. 897, 459 P.2d 225.) This has been referred to as the "two-part Daniels ... test." (People v. Rayford (1994) 9 Cal.4th 1, 20, 36 Cal.Rptr.2d 317, 884 P.2d 1369.)

"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.]" (People v. Martinez, supra, 20 Cal.4th at p. 233, 83 Cal.Rptr.2d 533, 973 P.2d 512, citing People v. Rayford, supra, 9 Cal.4th at p. 12, 36 Cal.Rptr.2d 317, 884 P.2d 1369 and People v. Daniels, supra, 71 Cal.2d at p. 1128, 80 Cal.Rptr. 897, 459 P.2d 225.)

"`The second prong of the Daniels test 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 victims foreseeable attempts to escape, and the attackers 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.]' [Citations.]" (People v. Martinez, supra, 20 Cal.4th at p. 233, 83 Cal.Rptr.2d 533, 973 P.2d 512.)

b. Daniels.

In Daniels, the defendants were alleged to have robbed and raped three victims in their homes, moving the victims from room to room 18 feet, five to six feet, and 30 feet, respectively. Daniels ruled such brief movements were merely incidental to the associated...