The People v. Hall

Decision Date16 July 2010
Docket NumberNo. SWF019813,E047636,SWF019813
CourtCalifornia Court of Appeals Court of Appeals
PartiesTHE PEOPLE, Plaintiff and Respondent, v. WESLEY JAMES HALL, JR., Defendant and Appellant.

Tonja R. Torres, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Ronald Jakob and Donald W. Ostertag, Deputy Attorneys General, for Plaintiff and Respondent.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

OPINION

RICHLI J.

APPEAL from the Superior Court of Riverside County. Mark E. Petersen, Judge. Affirmed as modified.

A jury found appellant and defendant Wesley James Hall, Jr., guilty of kidnapping for robbery (Pen. Code, § 209, subd. (b)(1)) (count 1); two counts of robbery (Pen. Code, § 211) (counts 2 and 3); burglary (Pen. Code, § 459) (count 4); carjacking (Pen. Code, § 215, subd. (a)) (count 5); felon in possession of ammunition (Pen. Code, § 12316, subd. (b)(1)) (count 6); and evading a peace officer while operating a motor vehicle (Veh. Code, § 2800.1, subd. (a)) (count 7). The jury also found true that in the commission of counts 1 through 5, defendant participated as a principal knowing that another principal was armed with a firearm. (Pen. Code, § 12022, subd. (a)(1).) Defendant thereafter admitted that he had suffered two prior prison terms. (Pen. Code, § 667.5, subd. (b)(1).) As a result, defendant was sentenced to a total determinate term of 13 years, plus an indeterminate term of seven years to life.

On appeal, defendant contends: (1) there was insufficient evidence to support his conviction on count 1; and (2) his sentence on counts 2, 4, and 5 should have been stayed pursuant to Penal Code section 654.1 We agree that defendant's sentences on counts 2 and 4 should have been stayed pursuant to section 654. We, however, reject defendant's remaining contention and affirm the judgment.

IFACTUAL BACKGROUND

On February 5, 2007, Neil was helping his friend, Miguel, and Miguel's younger brother, Derek, move from their rented mobilehome in sparsely populated Anza to a new residence in Murrieta. Miguel and Derek's father had rented a brand new PT Cruiser convertible for use during the move.

At about 7:40 p.m., Derek and Neil had loaded the car with the final items and were waiting for Miguel to return from the landlord's house located elsewhere on the property. While Derek was sitting inside the house, Neil walked outside to the PT Cruiser. As Neil opened the door to the car, he heard someone say, "'Freeze, motherfucker.'" Startled, Neil dropped the car keys, looked up, and saw the barrel of a shotgun. He also observed two men wearing ski masks. The larger of the two men, identified as defendant, was holding a shotgun pointed directly at Neil. The smaller of the two men was holding a large bowie-type knife.

Believing the two men may have been friends of his who were playing a joke, Neil said, "'Wow, Josh. You scared the shit out of me.'" Defendant responded by pointing the shotgun at the car and firing it downward toward Neil. Thereafter, defendant pumped the shotgun, reloaded a new round, pointed it back at Neil, and said, "'I'm not Josh, and I'm not fuckin' around. Get in the house.'"

Meanwhile, Derek, who heard the gunshot, ran to the backdoor, opened the door, and poked his head outside. Defendant, from a distance of about four to five feet, quickly pointed the shotgun at Derek and ordered him to get "'inside the fuckin' house.'"

Once inside the mobilehome, defendant and his accomplice looked around and realized there was nothing in the house. Defendant ordered Neil and Derek to "'[g]et in the back room. Give me your phones and your wallet. And if you guys go anywhere, you're going to get blasted.'" The estimated distance from the backdoor of the mobilehome to the back room was about 30 feet. Feeling scared, Neil and Derek complied with defendant's orders, went into the back room, and each gave defendanttheir cellular telephones and wallets. Shortly thereafter, Neil and Derek heard defendant and his cohort start a car, later identified as the rented PT Cruiser, and drive away.

Defendant and his accomplice did not tie up Neil or Derek or lock them in the back room. Once Neil and Derek were certain that the car had pulled away, the men ran to the landlord's house and notified the police of the incident.

Riverside County Sheriff's Deputy Gruwell and his partner arrived at the landlord's residence within 10 to 15 minutes after being notified of the call by dispatch and separately spoke with Neil and Derek. Both Neil and Derek gave similar descriptions of the incident, the suspects, and the weapons used. Deputy Gruwell noticed that both Neil and Derek appeared to be shaken up and afraid.

Riverside County Sheriff's Deputy Zunker was on patrol in the area when he observed a white PT Cruiser matching the description of the stolen vehicle proceeding down Highway 79. Deputy Zunker pursued the vehicle, and a dangerous high-speed pursuit ensued. Eventually, defendant, who was driving the vehicle, lost control of the car, veered off the road, and crashed into the shoulder. Defendant, who was wearing gloves and a ski mask, exited the vehicle and started fleeing on foot. Deputy Zunker eventually caught defendant and arrested him.

A search of defendant's person revealed a shotgun shell in his front pocket, a wallet, and a cellular telephone belonging to one of the victims. A search of the PT Cruiser revealed a large knife, gloves, masks, and various property belonging to Neil and Derek. The vehicle also contained shotgun shells matching the expended shotgun shell that had previously been recovered from the scene of the crime.

In an in-field lineup, Derek and Neil both identified defendant as one of the two assailants involved in the incident and as the assailant with the shotgun. Derek and Neil also identified defendant as the gunman at trial.

After defendant waived his constitutional rights, defendant admitted that he was involved in the robbery, but claimed to do so because he was owed $300 by the Gonzalez family. He further asserted that his accomplice was a friend he had known for a "[c]ouple of days" named "Johnny," and that the robbery was Johnny's idea. Johnny had provided all the gear, including the ski masks, gloves, shotgun, and bowie knife. Defendant claimed that Johnny was the aggressor and the person with the shotgun and knife.

IIDISCUSSION
A. Sufficiency of the Evidence

Defendant contends the evidence was insufficient to prove his conviction for kidnapping of Neil for purpose of robbery because his movement of Neil from outside the mobilehome to the back room was merely incidental to the robbery and did not sufficiently increase the risk of harm to Neil.

1. Standard of Review

When determining whether the evidence was sufficient to sustain a conviction, "our role on appeal is a limited one." (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) When a defendant challenges the sufficiency of the evidence to support a conviction, this court must examine the entire record in the light most favorable to the judgment, presumein support of the judgment the existence of every fact the trier of fact could reasonably deduce from the evidence, and determine whether any rational trier of fact could have found the essential elements of the crime true beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 577-578.)

2. Elements of Aggravated Assault

Section 209, subdivision (b)(1), which defines aggravated kidnapping, provides, "Any person who kidnaps or carries away any individual to commit robbery... shall be punished by imprisonment in the state prison for life with the possibility of parole." 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 (Martinez); see also People v. Rayford (1994) 9 Cal.4th 1, 12 (Rayford).) More simply, the movement must be more than incidental and must increase the inherent risk of harm. These two aspects are interrelated. (Martinez, at p. 233; Rayford, at p. 12.)

In determining the first prong, whether the movement was merely incidental to the underlying crime, the jury must consider the scope and nature of the movement, including the actual distance a victim is moved. However, "there is no minimum number of feet a defendant must move a victim in order to satisfy the first prong.'" (Martinez, supra, 20 Cal.4th at p. 233.)

The second prong, i.e., whether the movement increased the risk of harm beyond that inherent in the crime of robbery, includes such factors as the likelihood of detection, the victim's attempts to escape or desperate attempts to extricate himself or herself, the defendant's opportunity to commit additional crimes, and the danger to the victim due to the movement. (Martinez, supra, 20 Cal.4th at p. 233.) "The fact that these dangers do not in fact materialize does not, of course, mean that the risk of harm was not increased." (Rayford, supra, 9 Cal.4th at p. 14.) The increased risk may be of either physical harm or psychological trauma. (People v. Nguyen (2000) 22 Cal.4th 872, 886.)

For example, in People v. Shadden (2001) 93 Cal.App.4th 164 (Shadden), the defendant entered a video store, punched the store owner, and dragged her nine feet into a small back room, where he attempted to rape her. (Id. at p. 167.) Shadden found this evidence sufficient to support the defendant's conviction for kidnapping to commit rape, in that the movement "was substantial for [the victim] and it changed her environment." (Id. at p. 169.) The movement increased her risk of harm because she was secluded from the public view, making it less likely for others to discover the crime. (Id. at pp....

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