IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)
February 2, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
TERRENCE JERMAINE FORD, DEFENDANT AND APPELLANT.
(Super. Ct. No. 08F01420)
The opinion of the court was delivered by: Butz, J.
P. v. Ford
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
A jury found defendant Terrence Jermaine Ford guilty of kidnapping to commit robbery (Pen. Code, § 209, subd. (b)(1)),*fn1 and kidnapping during the commission of a carjacking (§ 209.5, subd. (a)), with true findings that defendant personally used a firearm in the commission of each offense (§ 12022.53, subd. (b)). After the trial court found that defendant had been convicted of a prior strike (§ 667, subds. (b)-(i)) and an additional prior felony (§ 667.5, subd. (b)), it sentenced him to an aggregate state prison term of 14 years to life, plus 12 years.
Defendant appeals, arguing (1) substantial evidence does not support the verdict of kidnapping for robbery in that the robbery was complete before the kidnapping began; (2) the trial court's instructions omitted an essential element of the offense of kidnapping for robbery; and (3) the trial court erred in instructing the jury on how to consider the credibility of a witness. We reject these arguments and shall affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On January 1, 2008,*fn2 defendant traveled from the Bay Area to Sacramento by train with his girlfriend, mother, and his mother's husband to visit his sister. Defendant's half brother Frank also visited the family in Sacramento, although he did not travel with the rest of the family. Defendant's family stayed at his sister's home in Sacramento until January 4.
On January 4, Shawn Hanks parked his pickup truck in a parking lot on 6th Street under Highway 50 (less than a mile from defendant's sister's house) and rode his bike the rest of the way into work in downtown Sacramento. Hanks returned to his truck a little after 4:30 in the afternoon. It was a windy, stormy day and few people were out besides city and county employees. The sky was beginning to get dark, but it was still light enough to see.
Hanks placed his bicycle in the bed of the truck and got into the driver's seat. Just then, defendant and another man approached the vehicle. Defendant grabbed the driver's door before Hanks could close it. Hanks told defendant that he did not have any money; defendant replied, "Well, check this out," and pointed a gun at him. Hanks threw his car keys at defendant and jumped down out of the truck. However, defendant prevented Hanks from escaping by trapping him against the door. At this point, Hanks and defendant were face-to-face, with the barrel of the gun touching Hanks's side. When defendant ordered Hanks back into the truck, Hanks replied, "No. I don't have nothing on me. Everything's in my truck." Defendant again ordered Hanks into the truck, telling him to "Get in the back." This time Hanks complied, maneuvering himself into the back seat.
Defendant and his accomplice*fn3 got into the front seats of the truck, with defendant driving. Defendant started the engine but could not make the vehicle move forward. Hanks then instructed him to release the emergency brake. The other man asked Hanks for his phone and wallet; Hanks told him they were in his backpack. The man looked through the backpack but could not find the items, so he turned around and proceeded to pat Hanks down.
While the accomplice was searching for Hanks's phones and wallet, defendant made a U-turn and a left turn into an alley. Once in the alley, the truck began to slow and Hanks decided to try to get out of the vehicle. Just as he was about to open the rear door, one of the men said, "Get out." Hanks jumped out and tried to grab his bicycle out of the bed of the truck, but it pulled away before he could do so. Still inside the truck were Hanks's belongings, including CD's, his wallet, his work and personal cell phones (Nextel and AT&T), tools, and a set of knives. As Hanks ran away, he heard one of the men shout, "Don't call the cops and don't run."
The next week, Hanks's truck was found near the Oakland entrance to the Bay Bridge. When the truck was returned to him, Hanks found items inside that did not belong to him. They included an Amtrak ticket and Kelly Services business cards.
A month later, Hanks obtained a new Nextel phone for work, with the same phone number. Soon thereafter, he began receiving phone calls asking for "Frank," which is the name of defendant's half brother. Phone records showed that on January 4 and 5, Hanks's Nextel phone was used to call defendant's mother and father. Kelly Services records confirmed that defendant had an appointment at its Fairfield office on January 9.
Defendant took the stand in his own defense. He claimed that he was on a train to the Bay Area with his family on January 4, and got back to Richmond between 4:00 and 4:30 p.m. Defendant testified that he and his family got on the train without money or tickets and were ejected from the train in Fairfield, where they were picked up by a friend. Once back in Richmond, defendant's brother Frank came to his house driving a large maroon truck that defendant had never seen before. The two went for a ride in the new truck. It was during this "joy ride" that defendant believed that the Kelly Services business cards fell out of his pockets.
Defendant admitted lying to police officers when questioned on his whereabouts during the holiday season of 2007-2008, informing police that he had been in Sacramento for Christmas but not New Years. Defendant explained that he lied because he was on parole and not supposed to leave the Bay Area, believing that going to Sacramento only for Christmas would be more acceptable to his parole officer.
The defense argued that Hanks had mistakenly identified defendant as the robber and suggested that the robbery was actually committed by his half brother Frank.
I. Sufficiency of the Evidence
Defendant contends there was insufficient evidence to support the conviction of kidnapping for robbery because the robbery was complete before the kidnapping began.
"The test on appeal for determining if substantial evidence supports a conviction is whether '"a reasonable trier of fact could have found the prosecution sustained its burden of proving the defendant guilty beyond a reasonable doubt."' [Citation.] In making this determination, we '"must view the evidence in a light most favorable to respondent and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence."'" (People v. Rayford (1994) 9 Cal.4th 1, 23.)
"[S]section 209 makes punishable every person . . . 'who kidnaps or carries away any individual to commit robbery . . . .'" (People v. Laursen (1972) 8 Cal.3d 192, 198 (Laursen.) "'Kidnapping for robbery . . . requires movement of the victim that is not merely incidental to the commission of the robbery, and which substantially increases the risk of harm over and above that necessarily present in the crime of robbery itself.'" (People v. Hillhouse (2002) 27 Cal.4th 469, 498.)
"[A] kidnapping in which a robbery occurs does not constitute kidnapping for the purpose of robbery unless the specific intention to rob is present at the time of the original asportation." (Laursen, supra, 8 Cal.3d at p. 198.) However, "section 209 [does not] require that the separately defined crimes of robbery and kidnapping be tied together by a coexistence of the elements of intent at the commencement of the criminal transaction." (Id. at p. 199.) "All that is required is that the defendant have the specific intent to commit a robbery at the time the kidnapping begins." (People v. Davis (2005) 36 Cal.4th 510, 565-566.) "Moreover, it has been held that where a kidnapping occurs after the actual perpetration of a robbery such kidnapping may be kidnapping for the purpose of robbery if it may reasonably be inferred that the transportation of the victim was to effect the escape of the robber or to remove the victim to another place where he might less easily sound an alarm." (People v. Monk (1961) 56 Cal.2d 288, 295 (Monk); accord, People v. Spaniel (1968) 262 Cal.App.2d 878, 885.)
Here, a reasonable trier of fact could find defendant guilty of kidnapping for robbery because, as we shall explain, there was substantial evidence that the kidnapping was for the purpose of facilitating and furthering the robbery.
The robbery began when defendant pointed the gun at Hanks. Hanks surrendered his property to the two robbers by throwing his car keys at defendant and telling him to take everything. Defendant and his accomplice, however, did not believe Hanks had turned over all his property, because they ordered Hanks back into the truck, where they demanded that he turn over his phone and wallet. At that point, defendant began driving the truck into an alley. Therefore, when the kidnapping began, the robbery was still in progress. "[W]here a kidnapping is in furtherance of a robbery during which the kidnapping occurs, a violation of section 209 is committed even though the intent to kidnap was formulated after the robbery was commenced." (Laursen, supra, 8 Cal.3d at p. 199.)
It is also reasonable to conclude that the robbers kidnapped Hanks to facilitate their escape. If left on the street, Hanks would have been able to flag down a passing car or run to a store or gas station. By moving him to a more secluded location, the robbers made it more difficult for Hanks to sound an alarm. (See Monk, supra, 56 Cal.2d at p. 295.) Asportation and "escape to a location of temporary safety" are elements of robbery. (Laursen, supra, 8 Cal.3d at p. 200.) It is thus reasonable to conclude that Hanks was moved to a more remote location so the robbers could more easily reach a place of safety. (See Laursen, at pp. 199-200 ["[t]he assault of the victim, the seizure of . . . property and the robber's escape to a location of temporary safety are all phases in the commission of the crime of robbery"].)
Defendant claims that because Hanks had surrendered his keys and there were few people around that day, the robbers had already reached a place of temporary safety before demanding Hanks get back in the truck. Not so.
"[T]he commission of a robbery continues until all acts constituting the offence have ceased. The taking element of robbery itself has two necessary elements, gaining possession of the victim's property and asporting or carrying away the loot. [Citation.] Thus, in determining the duration of a robbery's commission we must necessarily focus on the duration of the final element of the robbery, asportation." (People v. Cooper (1991) 53 Cal.3d 1158, 1164-1165, fn. omitted.) "'In determining the duration of the asportation, we reject the argument that commission of the robbery necessarily ends once the loot is removed from the "immediate presence" of the victim.'" (People v. Gomez (2008) 43 Cal.4th 249, 262.) "The asportation continues thereafter as long as the loot is being carried away to a place of temporary safety." (Cooper, supra, 53 Cal.3d at p. 1165.)
It would be irrational to conclude that the robbers had reached a place of temporary safety merely because Hanks handed over his keys and few people were around. Despite the presence of relatively few bystanders, the robbers and Hanks were on a public street next to an open parking lot in downtown Sacramento. Under such circumstances, it was plausible that someone driving by could see what was happening and call the police. The jury could easily conclude the robbers transported Hanks to facilitate both the carrying away of the loot and their escape, and therefore that the robbery was still in progress when the kidnapping commenced.
We find there was substantial evidence to support the conviction of kidnapping for robbery.
II. Sufficiency of Jury Instructions--Kidnapping for Robbery
The trial court instructed the jury on the elements of kidnapping for the purpose of robbery in accordance with CALCRIM No. 1203. Defendant claims the instruction failed to include all elements of the offense because it "omitted the essential element that the asportation involved in the kidnapping must have been to facilitate the robbery or the escape from the scene of the robbery." (Italics added.) We disagree.
CALCRIM No. 1203 told the jury that to find defendant guilty of kidnapping for the purpose of robbery, they must find: "One, the defendant intended to commit robbery; two, acting with that intent [to commit robbery], the defendant took, held, or detained another person by using force or by instilling a reasonable fear; three, using that force or fear, the defendant moved . . . the other person or made the other person move a substantial distance; four, the other person was moved or made to move a distance beyond that merely incidental to the commission of a robbery; five, when that movement began, the defendant already intended to commit robbery; and, six, the other person did not consent to the movement." (Italics added.)
In People v. Curry (2007) 158 Cal.App.4th 766, 781 (Curry), this court rejected a similar challenge to this instruction and determined "that CALCRIM No. 1203 is a correct statement of the law." The version of the instruction in Curry was slightly different than the one here, in that it did not inform the jury of the requirement that the intent to commit robbery exist at the time the kidnapping commenced. (Ibid.) Nevertheless, the court concluded that the first three points of the instruction "adequately express[ed] that requirement." (Id. at p. 782.) The instruction here did include the requirement that the intent to commit the robbery exist at the time the kidnapping began, and was therefore a more complete statement of the law than the one upheld in Curry.
While acknowledging Curry, defendant nevertheless argues that the instruction was incomplete because it failed expressly to say "that the movement involved . . . must be accomplished in order to facilitate the crime of robbery or the escape of the perpetrator(s) after a robbery," and thus allowed the jurors to return a guilty verdict even if they believed the robbery was complete before the kidnapping began.
The argument is without merit. "'"Jurors are presumed to be intelligent, capable of understanding instructions and applying them to the facts of the case."'" (People v. Carey (2007) 41 Cal.4th 109, 130, quoting People v. Lewis (2001) 26 Cal.4th 334, 390.) While CALCRIM No. 1203 does not expressly say that the movement of the victim must facilitate the robbery, taken as a whole, the language of the instruction would lead any reasonable juror to draw that conclusion. The instruction described the crime as "kidnapping for the purpose of robbery." It told the jurors that defendant must have the requisite intent to commit robbery, and with that intent move the victim a substantial distance beyond what is incidental to accomplish it. A reasonable juror would not understand this language to mean that the charge could be proved if the robbery had been completed before the kidnapping began. There was no error in instructing the jury pursuant to CALCRIM No. 1203.
III. CALCRIM No. 226
Defendant's final contention is that the court erred by instructing the jury pursuant to CALRCRIM No. 226.
In accordance with CALCRIM No. 226, the jury was instructed: "If you decide that a witness deliberately lied about something significant in this case, you should consider not believing anything that witness says. Or, if you think the witness lied about some things, but told the truth about others, you may simply accept the part that you think is true and ignore the rest." Defendant claims that by using the word "should," the first sentence of the instruction improperly encourages jurors to disbelieve everything a defendant has said if they find he or she deliberately lied about one subject.
Defendant misconstrues the jury instruction. It does not tell jurors that they "should" totally disbelieve a witness who has lied. Rather, as the language clearly states, the jurors should consider disbelieving a witness who has deliberately lied about "something significant in this case." (Italics added.)
In People v. Warner (2008) 166 Cal.App.4th 653, 657-658, the court rejected a similar argument that defendant raises here. The Warner court disagreed with the assertion that the use of "should" and "ignore" in CALCRIM No. 226 invites the jury to reject a falsely testifying defendant's entire testimony "'even more forcefully'" than its approved predecessor, CALJIC No. 2.21.2, pointing out that the use of the word "consider" dispels the notion that the jury was told they must disbelieve an untruthful witness. (Warner, at pp. 657-658.) The court also held that the instruction is "facially neutral" and does not focus on the defendant any more than any other witness. (Id. at p. 658.) No error appears.
The judgment is affirmed.
We concur: ROBIE, Acting P. J. MAURO, J.