People v. Keovongxay CA3 ( 2014 )

Filed 4/22/14 P. v. Keovongxay CA3
NOT TO BE PUBLISHED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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(San Joaquin)
----
THE PEOPLE, C067721
Plaintiff and Respondent, (Super. Ct. Nos. SF115451A,
SF115451B, SF115451C)
v.
JOHN KEOVONGXAY et al.,
Defendants and Appellants.
After a jury found defendants John Keovongxay, Joseph Michael Hernandez, and
Nicholas Eugene Castaneda guilty of several felonies, the trial court found each
defendant had various priors and sentenced each defendant to prison. Defendants
contend the trial court erred in denying their motion alleging that the prosecutor exercised
peremptory jury challenges based on discriminatory factors, in violation of
Wheeler/Batson principles. (See People v. Wheeler (1978) 22 Cal. 3d 258; Batson v.
Kentucky (1986) 476 U.S. 79 [90 L. Ed. 2d 69].) Defendant Keovongxay also contends no
1
substantial evidence supports his conviction for simple kidnapping. Finding no error, we
shall affirm the judgments.
FACTUAL AND PROCDURAL BACKGROUND
The facts are not disputed on appeal. On July 29, 2010, Keovongxay pointed a
gun at a woman in front of her Stockton house, while Hernandez ordered the woman and
her son inside. They demanded money and stole a laptop before fleeing as the police
approached. Hernandez was caught nearby, as was Castaneda, driving the getaway car.
Then, in a nearby house around the corner, a man saw Keovongxay hiding in his
backyard. Keovongxay ordered the man into his house, and demanded his keys. The
man was able to get into his garage and call the police. Keovongxay fled, but the police
captured him the next day.
The jury found each defendant guilty of residential robbery in concert and first
degree burglary of an inhabited residence (Pen. Code, §§ 213, subd. (a)(1)(A), 459),1 and
additionally found Keovongxay guilty of kidnapping, robbery, and false imprisonment
(id., §§ 207, 211, 236). The jury found Keovongxay personally used a firearm
(§ 12022.53, subd. (b)), and found as to the other defendants that another principal was
armed (id., § 12022, subd. (a)(1)).
The trial court found Keovongxay had a prior serious felony and strike (first
degree burglary) and had served four prior prison terms, Hernandez had served two prior
prison terms, and Castaneda had served one prior prison term. (See §§ 667, subds. (a)(1),
(b)-(i), 667.5, subd. (b), 1170.12, subd. (b).) The trial court sentenced defendants to
prison, imposing terms of 36 years and 8 months on Keovongxay, 12 years on
Hernandez, and 11 years on Castaneda.
Each defendant timely appealed.
_____________________________________________________________________
1 Undesignated statutory references are to the Penal Code.
2
DISCUSSION
I
Wheeler/Batson Motion
Defendants contend the trial court should have granted their Wheeler/Batson
motion. We conclude the trial court properly denied the motion.2
A. The Law
Prospective jurors (hereafter jurors, for convenience) may be peremptorily
challenged for subjective or trivial reasons, including a juror’s in-court demeanor,
provided the reasons are genuine and not discriminatory. (See People v. Jones (2011)
51 Cal. 4th 346, 361; People v. Allen (2004) 115 Cal. App. 4th 542, 547.)
When a party (usually the defendant) alleges its opponent is exercising challenges
discriminatorily, the trial court applies a three-step process, as follows:
“ ‘First, the defendant must make out a prima facie case “by showing that
the totality of the relevant facts gives rise to an inference of discriminatory
purpose.” [Citation.] Second, once the defendant has made out a prima facie case,
the “burden shifts to the State to explain adequately the racial exclusion” by
offering permissible race-neutral justifications for the strikes. [Citations.] Third,
“[i]f a race-neutral explanation is tendered, the trial court must then decide . . .
whether the opponent of the strike has proved purposeful racial
discrimination.” ’ ” (People v. Mills (2010) 48 Cal. 4th 158, 173 (Mills).)
_____________________________________________________________________
2 Keovongxay concedes he did not join in the Wheeler/Batson motion, but claims this is
irrelevant because if the motion had merit, his trial counsel was necessarily incompetent
in failing to join the motion. But the record reflects a plausible tactical reason for trial
counsel’s actions. Keovongxay was Laotian, unlike his Hispanic codefendants. His
counsel may not have shared the codefendants’ counsels’ concerns about the number of
Hispanics on the jury. That would relegate Keovongxay to habeas corpus, where the
reasons for his counsel’s actions can be explored. (See People v. Pope (1979) 23 Cal. 3d
412, 425-426, disapproved on another ground in People v. Berryman (1993) 6 Cal. 4th
1048, 1081, fn. 10; see also, e.g., People v. Bolin (1998) 18 Cal. 4th 297, 317 [trial
counsel may have shared prosecutor’s dissatisfaction with challenged jurors].)
3
But if a trial court asks for the prosecutor’s reasons and assesses their validity in
the course of determining whether the defense has made out a prima facie case, we “skip
to” the third stage and evaluate those reasons. (See Mills, supra, 48 Cal.4th at p. 174.)
However, we do not review the prosecutor’s reasons de novo:
“Review of a trial court’s denial of a Wheeler/Batson motion is deferential,
examining only whether substantial evidence supports its conclusions. [Citation.]
‘We review a trial court’s determination regarding the sufficiency of a
prosecutor’s justifications for exercising peremptory challenges “ ‘with great
restraint.’ ” [Citation.] We presume that a prosecutor uses peremptory challenges
in a constitutional manner and give great deference to the trial court’s ability to
distinguish bona fide reasons from sham excuses. [Citation.] So long as the trial
court makes a sincere and reasoned effort to evaluate the nondiscriminatory
justifications offered, its conclusions are entitled to deference on appeal.’ ”
(People v. Lenix (2008) 44 Cal. 4th 602, 613-614.)
B. The Jury Selection Proceedings
The prosecutor exercised peremptory challenges against nine jurors, alternating
challenge opportunities with the defense attorneys. In order, these nine jurors, along with
their apparent backgrounds as described on the record by the trial court, were as follows:
A.G., White.
R.F., Hispanic.
L.G., African-American.
J.V., Hispanic.
L.A., Hispanic.
After some new jurors were questioned, the People passed.
W.M., African-American.
The People again passed.
A.S., White.
R.Q., Filipino.
M.C., Hispanic.
4
After Castaneda’s counsel made an off-record comment about the challenges, the
trial court commented that it “notice[d] a rather alarming string from the People. It looks
like seven of their nine challenges are minorities. One Filipino, most Hispanics, one
black and I think that starts to create -- actually, two blacks, African Americans. I think
that does start to suggest a pattern, systematic pattern of minorities . . . .”
After additional critical comments from the trial court regarding the prosecutor’s
challenges, Castaneda’s counsel stated his concern was “not just Hispanics but
minorities” including Hispanics. After a break, Castaneda and Hernandez, but not
Keovongxay, made a Wheeler/Batson motion. (See fn. 1, ante.)
The trial court repeatedly stated it had not found a prima facie case, but ultimately
asked the prosecutor for his reasons for striking the four Hispanic jurors, and considered
those reasons on the merits. Castaneda’s counsel specified the motion was based on
challenges to the four Hispanics, but argued that Filipino juror R.Q. should be counted as
a fifth Hispanic because many people from the Philippines “are Spanish” due to Spain’s
former control of the Philippines, a view the trial court implicitly rejected by asking the
prosecutor to state his reasons for challenging the four Hispanic jurors, but not the
Filipino juror.3 (See Part I-C-4, post.)
The prosecutor’s stated reasons for three of the Hispanic jurors were as follows:
M.C. was only 18 years old and “I wasn’t sure if she had the appropriate amount
of life experience to be on this particular jury.”4
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3 Hernandez claims the trial judge improperly ruled that Hispanic defendants could
challenge only Hispanic jurors. The record shows only that the trial court agreed with the
prosecutor that there were different cognizable groups at issue, and evidently did not find
a prima facie case as to African-Americans or Filipinos.
4 He had challenged juror A.S., in his 20’s, for the same reason, and planned to challenge
another juror in her 20’s. He also stated all the remaining prospective jurors “I believe,
are over the age of 28, at least.”
5
R.F. had not been to high school and “was confused” during questioning by
Hernandez’s counsel, and the prosecutor had unsuccessfully challenged R.F. for cause
earlier.
J.V., too, gave confusing answers, particularly about whether he would follow the
law, or follow the morals and ethics taught to him by his parents.5
Castaneda’s counsel argued M.C. would likely be pro-law enforcement because
her uncle was a deputy sheriff. R.F. had been chosen as a juror in the past, and although
that past case had been “resolved” he could understand what was going on, and both R.F.
and J.V. had answered questions without problems. Hernandez’s counsel, too, had
understood R.F.’s and J.V.’s answers.
The trial court denied the motion, finding the reasons given were race neutral and
not pretextual, specifically, R.F. had limited education and gave confusing voir dire
answers, M.C. was young and inexperienced, and J.V. gave answers suggesting he might
follow his parents’ teachings over the law.
C. Analysis
On appeal, Castaneda challenges the findings as to Hispanic jurors J.V. and M.C.,
and argues the matter must be remanded to determine why the prosecutor challenged
Filipino juror R.Q. Hernandez adds a claim about the challenge to Hispanic juror R.F.6
As we explain immediately post, because the record supports the finding that the
_____________________________________________________________________
5 Defendants do not contest the reasons given as to L.A.
6 Hernandez also seeks review as to the stricken African-American jurors. But, as
Castaneda correctly points out, neither he nor Hernandez asked that the challenged
African-Americans “be included in the motion.” The trial court mentioned African-
Americans. But the discussion by counsel in their motion pertained to Hispanics, and
whether Filipinos counted as Hispanics. Accordingly, we decline to address claims about
African-American jurors. (See People v. Howard (1992) 1 Cal. 4th 1132, 1157
(Howard).)
6
prosecutor challenged each of the jurors at issue for reasons other than their ethnic
background, the trial court properly denied the Wheeler/Batson motion as to those jurors.
1. Juror J.V.
J.V. was 54, had been born in Venezuela, and had lived in the county for 25 years.
He had been called for jury duty before, but had not been selected as a juror. He
answered “no” to the question whether he could return a guilty verdict without regard to
punishment or other consequences, if the People proved the case beyond a reasonable
doubt, and explained “They did not prove the case.” When asked whether “the moral
grounding you got from your parents is more important than all the things you hear
strangers say,” he answered “Yeah, I think so.”
This record supports the trial court’s finding that the prosecutor had legitimate
concerns about J.V.’s ability to follow the law. (See People v. Crittenden (1994)
9 Cal. 4th 83, 116-117 (Crittenden) [no prima facie case where juror “had shown
indecisiveness and could not decide whether she would be able to follow the law”];
People v. Davis (2008) 164 Cal. App. 4th 305, 311, 313 (Davis) [prosecutor’s explanation
that juror was late and unable to follow instructions supported by record showing juror
“was not punctual and she did not otherwise do well in following the court’s
directions”].) The voir dire by Castaneda’s counsel did not dispel the concern that J.V.
would follow the moral precepts instilled by his parents over things heard from
“strangers[.]” The fact the prosecutor did not press J.V. on this point or ask him many
questions does not show so-called “desultory” questioning which may contribute to a
finding of discriminatory purpose (cf. People v. Bell (2007) 40 Cal. 4th 582, 597 (Bell) [in
finding a prima facie case, a relevant factor may be “ ‘the failure . . . to engage these
same jurors in more than desultory voir dire, or indeed to ask them any questions at
all’ ”]), because the existing record contained ample information to strike this juror.
7
2. Juror M.C.
M.C. was 18 and lived in San Joaquin County her whole life. She was a single
renter, had finished high school, and worked as a sales clerk. Her uncle was a deputy
sheriff in the county. When questioned for hardship, she had answered that she was “the
one who works” in her family and would be able to work nights during the trial.
The trial court could rationally credit the prosecutor’s concern about M.C.’s
maturity, given her age. (See People v. Sims (1993) 5 Cal. 4th 405, 430-431; People v.
Gonzales (2008) 165 Cal. App. 4th 620, 631.) That she may have been a very responsible
18 year old, as defendants argue, does not mean the prosecutor’s reason was pretextual.
The fact the prosecutor did not question her does not reflect “desultory” questioning
indicating pretext, but instead inferentially supports the view that the prosecutor viewed
her immaturity as an immediate disqualifier, which view is also supported by the fact that
the prosecutor struck other young jurors. (See fn. 3, ante.)
3. Juror R.F.
R.F. was 36 and had lived in the county his whole life. He had not completed high
school. He stated he had never served on a jury, but then answered a series of questions
about his prior service. He also answered that he, or a relative, or someone close to him
had not witnessed a crime, but that the matter had been reported to the police. During
questioning by Hernandez’s counsel, R.F. explained he “must have put the wrong thing”
and had never been on a jury and “probably got the wrong thing again.”
The confusion R.F. expressed supports the trial court’s finding that the prosecutor
had rational doubts about his ability to understand and follow the law. (See Crittenden,
supra, 9 Cal.4th at pp. 116-117; Davis, supra, 164 Cal.App.4th at p. 313.)
4. Juror R.Q.
Defendants contend the matter must be remanded for the trial court to consider the
prosecutor’s reasons for challenging Filipino juror R.Q. (See People v. Tapia (1994)
25 Cal. App. 4th 984, 1031-1032.) The trial court declined to “count” R.Q. as a Hispanic,
8
and did not find a prima facie case had been established regarding Filipinos. Contrary to
Castaneda’s claim, the trial court did not impliedly find a prima facie case regarding all
minority jurors, but only Hispanic jurors, inasmuch as it was those jurors about which it
questioned the prosecutor. Hernandez properly acknowledges this point, but incorrectly
asserts this was because the trial court found defendants lacked standing to challenge
other jurors. (See fn. 2, ante.)
a. Filipinos as Hispanics
As trial counsel pointed out, the question of how to “count” Filipinos can be
complicated. Some Filipinos have Hispanic surnames, and people with such surnames
have been held to be a cognizable group. (People v. Trevino (1985) 39 Cal. 3d 667, 683-
687, disapproved on other grounds in People v. Johnson (1989) 47 Cal. 3d 1194, 1219-
1222.) But this juror did not have a Hispanic surname, and generic categories of
“ ‘nonwhites’ ” and “ ‘people of color’ ” are not cognizable groups. (See People v. Davis
(2009) 46 Cal. 4th 539, 583-584; People v. Neuman (2009) 176 Cal. App. 4th 571, 574,
575–578; People v. Clay (1984) 153 Cal. App. 3d 433, 455, fn. 4.)
Although it may be hard to tell whether a juror belongs to a particular cognizable
group, ordinarily, a juror should not be questioned about race or ethnicity. (See People v.
Trevino, supra, 39 Cal.3d at p. 687; People v. Motton (1985) 39 Cal. 3d 596, 604.)
Moreover, a juror may belong to multiple cognizable groups, and physical
appearances and surnames may mislead. As one appellate court has noted: “jury venires
daily include Cubans named O’Rourke, Indonesians named Opdyke, and Anglos named
Gomes. Every trial judge has encountered red-haired, freckle-faced Cardenases and
Hispanic-looking Maguires. The country is a melting pot—and proud of it—and a large
part of the great folly of stereotyping is that nowhere on earth have race and ethnicity
become harder to determine than they are here.” (People v. Garcia (2000)
77 Cal. App. 4th 1269, 1280.)
9
For example, in Bell, supra, 40 Cal. 4th 582, the trial court had assumed that two
jurors were Filipino but observed “membership in that group was not always easy to
determine[.]” (Id. at p. 595.) In People v. Alvarez (1996) 14 Cal. 4th 155, a Filipino juror
surnamed Del Rosario (an Hispanic-sounding surname) was included among Hispanic
jurors for Wheeler/Batson purposes, but because the trial court found no “prohibited
intent on the prosecutor’s part, it deemed it unnecessary to reach the question whether
Puerto Ricans [or] Filipinos, as defendant suggested, came within the cognizable group of
Latinos, or whether each or either of them constituted such a group in their own right.”
(Id. at pp. 194-195.) In a more recent case, our Supreme Court suggested Filipinos were
a separate cognizable group within the “ ‘Asian’ ” category. (See People v. Burney
(2009) 47 Cal. 4th 203, 226.) That view is broadly consistent with governmental data-
collection usages. (See, e.g., Cal. Dept. of Finance, Cal. Statistical Abstract (48th ed.
2009) Table C-16, p. 62 [listing “Filipino” as a distinct “Ethnic Origin” category from
“Mexican American and other Spanish”]; Standards for the Classification of Federal Data
on Race and Ethnicity, 62 Fed.Reg. 58782, 58786-58787 (Oct. 30, 1997) [“ ‘Asian’ ”
includes a “ ‘person having origins in any of the original peoples of . . . the Philippine
Islands’ ”; while “ ‘Hispanic’ ” refers to persons who trace their origin or descent to
Mexico, Puerto Rico, Cuba, Central and South America, and other Spanish cultures”].)
In this case, there was no dispute the juror was Filipino. Based on the fact that she
did not have an Hispanic-sounding surname, we conclude the trial court properly rejected
the defense effort to “count” R.Q. as Hispanic rather than Filipino.7
b. Prima Facie Case as to Filipinos
We disagree with defendants’ apparent view that the trial court should have found
a prima facie case as to Filipinos.
_____________________________________________________________________
7 We note the juror questionnaire did not ask about former or “maiden” names,
information that might have clarified this married juror’s cognizable group(s).
10
“The high court has explained that the defendant is required to ‘raise an inference’
that the exclusion was based on group or race bias. . . . [¶] The trial court’s
determination that no prima facie showing of group bias has been made is subject to
review to determine whether it is supported by substantial evidence. [Citation & fn.
omitted.] We examine the record of the voir dire and accord particular deference to the
trial court as fact finder, because of its opportunity to observe the participants at first
hand.” (People v. Jenkins (2000) 22 Cal. 4th 900, 993-994.)
R.Q. was 26, married, had lived in the county for 2 years, and worked for Apple,
Inc., which is why she moved to Stockton. She finished high school, and had a technical
college degree. She had been a juror in a domestic violence case where no verdict was
reached and had a positive experience. She believed peace officers were more truthful
than other witnesses. When questioned by the prosecutor about her prior jury service, she
said the jurors had all agreed except one, but she felt “justice was still served” and that
she thought the process had been fair.
No other Filipino jurors had been stricken, none of the defendants were Filipino,
and they do not argue any of the victims were Filipino. As stated in a similar case:
“Assuming, as did the trial court, that [two excused jurors] are Filipino-
Americans and that Filipino-Americans are, for purposes of Wheeler and Batson, a
cognizable group distinct from other Asian-Americans, the record nonetheless
fails to show how many other Filipino-Americans were in the venire and were not
challenged by the prosecutor. The prosecutor did not use an extraordinary number
of his peremptory challenges against members of this ethnic group, nor does
defendant claim the prosecutor’s voir dire of these prospective jurors was
unusually desultory or that in respects other than their ethnic background or
national origin the two were especially heterogeneous. Neither defendant nor any
of the victims or percipient witnesses to the crimes were Filipino-Americans.
Under these circumstances, the prosecutor’s excusal of two Filipino-Americans
does not create an inference of discrimination.” (Bell, supra, 40 Cal.4th at p. 599.)
11
Here, as explained ante, there was no Wheeler/Batson motion based on challenges
to Filipino jurors, apart from the contention that juror R.Q. should have been “counted”
as another Hispanic juror. R.Q. was only 26, and the prosecutor had challenged or was
planning to challenge at least three other jurors in their 20’s based on lack of maturity,
and as Hernandez notes, the prosecutor apparently had a preferred “age range” of “above
28” which R.Q. did not meet. (See fn. 3, ante.) Because the record raises no inference of
discrimination, but instead “ ‘suggests grounds upon which the prosecutor might
reasonably have challenged’ ” R.Q., we sustain the trial court’s implied finding that no
prima facie case was established as her. (Howard, supra, 1 Cal.4th at p. 1155)
II
Sufficiency of the Evidence of Simple Kidnapping
Keovongxay claims no substantial evidence supports the kidnapping count,
because as a matter of law he did not move the victim sufficiently.
In assessing this claim, “We review the whole record in a light most favorable to
the judgment to determine whether it contains substantial evidence, i.e., evidence that is
credible and of solid value, from which a rational trier of fact could find beyond a
reasonable doubt that the accused committed the offense.” (In re Ryan D. (2002)
100 Cal. App. 4th 854, 859; see People v. Barnes (1986) 42 Cal. 3d 284, 303-304.)
Keovongxay jumped over the kidnapping victim’s fence and hid in his backyard.
When the victim confronted him, Keovongxay, who was visibly armed, ordered the
victim into his house and demanded his car keys. The victim walked “[a]bout six feet” to
get into his house, and as he entered, he yelled to his daughter-in-law to “lock herself in,”
whereupon Keovongxay grabbed the victim’s keys. The victim then ran to his detached
garage and called the police. Although the victim’s side yard had a metal fence along the
alley, there was a solid wooden fence between the alley and his “private backyard,” and a
passerby would not have seen the victim in the backyard. While the victim was outside,
12
he could hear “a lot” of police sirens, and after defendant fled, the victim saw police cars
in the street.
Keovongxay was charged with kidnapping for purposes of robbery (“aggravated”
kidnapping), but was acquitted of that charge and was found guilty of the lesser offense
of simple kidnapping. (§§ 207, subd. (a), 209, subd. (b).)
Simple kidnapping is defined as follows: “Every person who forcibly, or by any
other means of instilling fear, steals or takes, or holds, detains, or arrests any person in
this state, and carries the person into another country, state, or county, or into another part
of the same county, is guilty of kidnapping.” (§ 207, subd. (a).)
One element of kidnapping is “asportation,” which originally required moving the
victim outside the jurisdiction, and later at least to “another part” of the county. (See
Fricke, Cal. Criminal Law (10th rev. ed. 1970) Kidnapping, p. 207; 1 Witkin & Epstein,
Cal. Criminal Law (4th ed. 2012) Crimes Against the Person, §§ 283-285, pp. 1111-
1117.) The amount of movement required has changed over a long history not necessary
to recount here.
Aggravated kidnapping, that is, kidnapping to commit some other crime, such as
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. Rayford (1994)
9 Cal. 4th 1, 12.) This requires considering “the ‘scope and nature’ of the movement,”
and “the context of the environment in which the movement occurred.” (Ibid.)
In People v. Martinez (1999) 20 Cal. 4th 225, our Supreme Court expanded the
asportation element as applicable to simple kidnapping, as follows:
13
“In cases involving simple kidnapping, the instructions currently provide
that the victim must have been moved ‘for a substantial distance, that is, a distance
more than slight or trivial.’ [Citation.] [W]e conclude it would also be proper for
the court to instruct that, in determining whether the movement is ‘ “substantial in
character” ’ [citation], the jury should consider the totality of the circumstances.
Thus, in a case where the evidence permitted, the jury might properly consider not
only the actual distance the victim is moved, but also such factors as whether that
movement increased the risk of harm above that which existed prior to the
asportation, decreased the likelihood of detection, and increased both the danger
inherent in a victim’s foreseeable attempts to escape and the attacker’s enhanced
opportunity to commit additional crimes. [Fn. omitted.]
“While the jury may consider a victim’s increased risk of harm, it may
convict of simple kidnapping without finding an increase in harm, or any other
contextual factors. Instead, as before, the jury need only find that the victim was
moved a distance that was ‘substantial in character.’ [Citations.] To permit
consideration of ‘the totality of the circumstances’ is intended simply to direct
attention to the evidence presented in the case, rather than to abstract concepts of
distance. At the same time, we emphasize that contextual factors, whether singly
or in combination, will not suffice to establish asportation if the movement is only
a very short distance.” (People v. Martinez, supra, 20 Cal.4th at p. 237.)
The jury in this case was given a version of the pattern instruction (CALCRIM
No. 1215) in relevant part providing as follows: “[S]ubstantial distance means more than
a slight or trivial distance. In deciding whether the distance was substantial, you must
consider all the circumstances relating to the movement. Thus, in addition to considering
the actual distance moved, you may also consider other factors, such as whether the
movement increased the risk of physical or psychological harm, increased the danger of
foreseeable escape attempt, gave the attacker a greater opportunity to commit additional
crimes, or decreased the likelihood of detection.”8
In People v. Arias (2011) 193 Cal. App. 4th 1428 (Arias), Arias forced victim Luna
at gunpoint to walk 15 feet into Luna’s apartment so Arias could determine if rival gang
_____________________________________________________________________
8 On appeal, Keovongxay quotes the written instruction, which added a factor not read to
the jury, namely, “whether the distance the other person was moved was beyond that
merely incidental to the commission of robbery[.]”
14
members were present. (Id. at p. 1431.) Arias rejected the claim that this movement was
too insubstantial to support a simple kidnapping charge:
“A rational trier of fact could have concluded defendant was on a mission
to locate and shoot a TMC gang member and, in an effort to do so, he pointed a
gun at Luna, and followed him to the apartment to search for TMC gang members.
Luna testified he did not want defendant to enter his apartment but was ‘scared’
and ‘just following [defendant’s] directions.’ A rational trier of fact could have
concluded that Luna was involuntarily moved 15 feet to the inside of his
apartment in order to allow defendant to facilitate his search for TMC gang
members.
“The movement of Luna increased his risk of harm in that he was moved
from a public area to the seclusion of his apartment. Similarly, by scaring Luna
into moving away from a public place, it was less likely defendant would have
been detected if he had committed an additional crime. These factors support the
asportation requirement for kidnapping.” (Arias, supra, 193 Cal.App.4th at p.
1435.)
Even in cases of aggravated kidnapping, a short distance may suffice if the
movement significantly changed “ ‘the context of the environment.’ ” (See People v.
Diaz (2000) 78 Cal. App. 4th 243, 247-248.) In this case of simple kidnapping, the victim
was forced from his backyard into his home, increasing the risk of harm by defendant,
and decreasing the victim’s freedom of movement, his opportunity for escape, and the
chance he or defendant would be overheard by passersby. That suffices. (See Arias,
supra, 193 Cal.App.4th at p. 1435; see also People v. Shadden (2001) 93 Cal. App. 4th
164, 168-170 [victim dragged nine feet into a room in the back of a store; asportation
requirement of aggravated kidnapping met, in part because “Shadden placed [the victim]
out of public view. This made it less likely for others to discover the crime and decreased
the odds of detection”]; People v. Smith (1995) 33 Cal. App. 4th 1586, 1594-1595
[movement of victim “40 to 50 feet from a driveway, which was open to street view, to
the interior of a camper” not incidental to rape].)
15
Contrary to Keovongxay’s view, the fortuitous fact the victim was able to escape
to his garage while defendant was distracted does not mean his movement into the house
did not increase the risk of danger to him. Nor does the fact that the victim’s backyard
was “private” mean that he was equally at risk whether he was in the backyard or inside
the home, as defendant contends. Those were arguments for the jury to consider in
drawing inference from the facts, but the jury could rationally conclude, as it had been
instructed, that defendant’s forcible movement of the victim did increase the risk of harm
to the victim, reduced his chance to escape, and exposed him to the risk of additional
victimization by defendant.
Keovongxay relies in part on People v. Hoard (2002) 103 Cal. App. 4th 599, but
that case is inapposite. Unlike this case, Hoard involved a conviction for aggravated
kidnapping and a defendant who moved the victims within the interior of a store. (Cf.
People v. Corcoran (2006) 143 Cal. App. 4th 272, 279-280 [distinguishing Hoard].)
Nor are we persuaded by defendant’s reliance on People v. Williams (1970)
2 Cal. 3d 894, where the victim was moved around a service station and its adjacent
outdoor area and the People made no claim that this movement increased the victim’s risk
of harm. (Id. at pp. 899-900, 902-903; see also People v. Daly (1992) 8 Cal. App. 4th 47,
57 [moving victim about 40 feet within a parking structure did not increase her risk of
harm].) In this case, the jury could rationally find that moving the victim from his
backyard into the more confined environment of his house increased the risk of harm to
him and decreased the chance defendant would be detected by police audibly converging
on the area, whether or not the victim’s backyard was visible to the public.
Accordingly, substantial evidence supports the simple kidnapping conviction.
16
DISPOSITION
The judgments are affirmed.
DUARTE , J.
We concur:
ROBIE , Acting P. J.
MAURO , J.
17