People v. Williams , 212 Cal. Rptr. 3d 728 ( 2017 )

Filed 1/17/17
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF
CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE, B259659
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA414878)
v.
JARROD WILLIAMS et al.,
Defendants and Appellants.
APPEALS from judgments of the Superior Court of Los
Angeles County, Tomson T. Ong, Judge. Affirmed in part
and reversed in part.
Charlotte E. Costan, under appointment by the Court
of Appeal, for Defendant and Appellant Jarrod Williams.
Jennifer A. Mannix, under appointment by the Court of
Appeal, for Defendant and Appellant Alphonso Williams.
Joanna McKim, under appointment by the Court of
Appeal, for Defendant and Appellant James Wilson.
Verna Wefald, under appointment by the Court of
Appeal, for Defendant and Appellant Jonathan Wilson.
Kamala D. Harris, Attorney General, Gerald A. Engler,
Chief Assistant Attorney General, Lance E. Winters,
Assistant Attorney General, Steven D. Matthews,
Supervising Deputy Attorney General, and David E. Madeo,
Deputy Attorney General, for Plaintiff and Respondent.
——————————
A jury convicted Jarrod Williams, Alphonso Williams,
James Wilson, and Jonathan Wilson1 of multiple counts of
kidnapping to commit another crime, second degree robbery,
kidnapping, and felony false imprisonment, in connection
with a series of robberies targeting retail electronics stores.
All four appeal, and we affirm in part and reverse in part.
BACKGROUND
An information filed October 11, 2013 charged Jarrod,
Alphonso, James, and Jonathan with 29 counts, including
second degree commercial burglary (Pen. Code,2 § 459),
second degree robbery (§ 211), attempted second degree
1
Jarrod and Alphonso Williams are not related but
have the same last name; James and Jonathan Wilson are
identical twins. To avoid unnecessary confusion and without
intending any disrespect, we refer to the four appellants by
their first names.
2
All further statutory references are to the Penal Code
unless otherwise indicated.
2
robbery (§§ 664, 211), kidnapping to commit another crime
(§ 209, subd. (b)(1)), and false imprisonment by violence
(§ 236), on 10 occasions between April and September 2012.
The information named Jarrod in all 29 counts, Alphonso in
19 counts, James in 16 counts, and Jonathan in seven
counts. (The information also named another defendant,
Mister Johara Richardson, in eight counts, but the jury
acquitted him on all counts after trial.)
The charges against Jarrod were commercial burglary
(count 1); kidnapping to commit another crime (counts 2, 4,
7, 10, 13, 15, 16, 18, 20, 25); robbery (counts 3, 5, 6, 8, 9, 11,
12, 14, 17, 19, 21, 22, 26, 27); attempted robbery (counts 23,
24); and false imprisonment by violence (counts 28, 29). Two
counts, 23 and 24, also alleged that Jarrod was armed with a
handgun, and counts 4 through 29 alleged that Jarrod
committed the crimes while on bail.
The charges against Alphonso were kidnapping to
commit another crime (counts 4, 7, 10, 13, 15, 16, 18, 20, 25),
and robbery (counts 5, 6, 8, 9, 11, 12, 14, 17, 19, 21, 22).
The charges against James were kidnapping to commit
another crime (counts 7, 10, 13, 15, 16, 18, 20), and robbery
(counts 8, 9, 11, 12, 14, 17, 19, 21, 22). Count 15 alleged that
James used a deadly weapon, a knife.
The charges against Jonathan were kidnapping to
commit another crime (counts 16, 18, 20), and second degree
robbery (counts 17, 19, 21, 22.)
All four defendants pleaded not guilty.
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I. Prosecution Evidence
A. The charged robberies
The prosecution presented evidence of a series of
robberies in 20123 at Radio Shacks and cell phone stores,
during which multiple robbers pushed store employees into
the back rooms of the stores before fleeing with cell phones,
cash, and other merchandise.
1. Counts 2 and 3, Riverside, April 25
(robbery and kidnapping) (Jarrod)
The store manager at a Diamond Wireless store in
Fontana (where cell phones were kept in a locked cage)
testified that a window was smashed sometime after she
locked the store and left at 8:45 p.m. on April 24, 2012, but
the next day nothing was missing. (The jury acquitted
Jarrod of the commercial burglary charge in count 1
regarding this event.)
The night of April 24, Jarrod called Steve Prado, a
current employee of the Riverside Diamond Wireless store
who used to work with Jarrod at the store in Riverside.
Jarrod told Prado he had broken the window at the Fontana
store, and offered Prado $3,000 for the key to the
merchandise cages at the Riverside store. Prado refused.
The next morning, April 25, at 9:50 a.m., Prado and
Monique H. prepared for the 10:00 a.m. opening of the
Riverside store. Jarrod texted Prado that he was outside the
3
All subsequent dates refer to the year 2012 unless
otherwise indicated.
4
store. To discourage Jarrod from robbing the store, Prado
replied (falsely) that the district manager was there. Prado
then heard the doorbell ring at the exterior door to the back
room and froze, knowing it was Jarrod.
Monique H. opened the door thinking it was a co-
worker, and saw a man dressed in black and wearing a ski
mask. Repeatedly saying ―shut the fuck up,‖ the man
grabbed her, showed her a knife, held it to her neck, and
pulled her about 25 feet to a corner of the back room so that
she faced the wall. Prado entered the back room and saw
the man with the knife. A second man whom he recognized
as Jarrod knocked Prado to the floor with his forearm.
Having worked with Jarrod also, Monique H. recognized
Jarrod‘s voice. After a few minutes, the man with the knife
ordered Monique H. to lie on the floor face down next to
Prado, who was also face down. Monique H. heard the men
taking phones. The men left the store by the back door
(leading to a stairway down to the parking lot) with more
than 20 iPhones, each valued at over $500, and a trash can.
A witness, who was sitting in his car in the parking lot
near the store waiting for the mall to open, saw two black
men, one taller than the other, descend the stairs and walk
to a tan vehicle. They carried merchandise boxes, a trash
can, and a white trash bag. The man who got into the
driver‘s seat wore sunglasses, a grey beanie with tassels, and
black gloves with white outlines, like bones. The witness,
who was 10 feet away, saw the face of the other man as he
got into the passenger seat, and in a photo lineup identified
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that man as Jarrod. At 9:36 a.m. that day, Jarrod‘s cell
phone (registered to his wife Anisha Williams) had pinged off
a cell tower at the mall.
Later that night Jarrod called Prado, who agreed to
help him sell the cell phones. A ―fence‖ paid $19,000, which
Prado gave to Jarrod, who then gave Prado $3,000. Jarrod
drove a gold Toyota. Prado was serving a prison sentence
when he testified.
2. Counts 4, 5, and 6, Fontana, May 8
(robbery and kidnapping) (Jarrod and Alphonso)
On May 8, Vanessa Martinez, who was pregnant,
worked in the front area of the Diamond Wireless Store in
Fontana, which had an all-glass façade bordering the
sidewalk. About 7:00 p.m., she and co-worker Aaron Aguilar
observed a dark green Toyota Camry parked backwards,
with its windows up and the engine idling. A few minutes
before the 8:00 p.m. closing time, Aguilar walked to the
break room in the rear of the store to put on his jacket.
A man wearing a hoodie and a skeleton mask and
holding a five- to six-inch kitchen knife and a white trash
bag ran into the store. He approached Martinez, said, ―get
the fuck up. This is not a joke. I‘m robbing you,‖ and asked
―where is the other guy?‖ Grabbing Martinez by the arm, he
pushed her about 40 feet to the back of the store, through a
door, into a hallway, and into the break room; she was
terrified. Aguilar saw the man open the door to the break
room; he was holding the knife to Martinez‘s stomach. He
told Aguilar not to look at his eyes and to go to the middle of
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the conference room/storeroom, about 20 feet farther back
(and reachable only by going through the break room). This
room contained the vault holding the cell phones. Aguilar
thought he recognized the robber‘s voice, perhaps from
company meetings. The man took Aguilar and Martinez to
the conference room/storeroom, which could not be seen from
the street, and told them to lie face-down, and that if they
looked up he would kill them. He demanded their cell
phones, and threw them into the breakroom.
Martinez heard a knock at a back entrance, which the
man opened to let another man run in. Both men wore
hoodies, masks, and gloves; one was taller. Seeming to know
where things were, the second man went through the break
room into the conference room/storeroom, and took about
$33,000 worth of cell phones from the vault (which was left
open during store hours). Both men left by the back door.
Aguilar locked the front and back doors, pressed the
emergency button, and called the police. The car in front of
the store had departed.
3. Arrest of Jarrod, May 10
Detectives serving a search warrant on May 9 or 10
noticed a gold 2005 Toyota Camry arrive at Jarrod‘s home,
driven by Jarrod‘s wife Anisha. Jarrod came out, spoke to
Anisha, and returned inside with her. Jarrod and
Richardson then came out; Richardson put a plastic bag in
the trunk of the Camry, and they drove away. The
detectives detained them, opened the trunk, and found in the
plastic bag 23 of the 25 items stolen from the Fontana
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Diamond Wireless store on May 8, including numerous cell
phones and iPads in original boxes. Two beanie caps (one
tasseled) and a pair of batting gloves were also recovered
from the Camry. A police search of Jarrod‘s residence
discovered four gray hoodies, three beanies, empty electronic
boxes, a pair of batting gloves (black with white designs),
and a black-handled knife. Martinez identified the knife as
the one used in the robbery.
Jarrod was arrested and released on bail on May 11.
4. Counts 7, 8, 9, Willow Street/Long
Beach, June 19 (robbery and kidnapping) (Jarrod,
Alphonso, and James)
Around 9:00 a.m. on June 19, Jorge Magana arrived for
work at a Radio Shack on Willow Street in Long Beach.
Through the floor-to-ceiling glass windows at the front of the
store, he saw a green Toyota Camry circling the parking lot,
driven by a man who looked like the rapper Drake, with two
other black people in the car. In court, he identified the
driver as Alphonso. A man walked into the store wearing a
beanie and gloves, with his face covered and carrying a
folding knife which Magana identified as the knife shown in
the prosecution‘s photographic exhibit 4. The man told
Magana to lie face-down on the floor ―or I‘m going to shank
you.‖ Magana could see two other men, masked, gloved, and
wearing sneakers, enter the store and go to the back room.
The first robber told Magana to count to 100. Magana was
not sure whether the driver who looked like Drake was one
of the three robbers inside the store.
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The store manager, Juan Mares, had been in the back
room on a conference call. Two robbers entered, grabbed
Mares‘s cell phone, and threw it across the room, where it
shattered. They lifted Mares off his chair by the collar and
asked where the high-end phones were, and Mares told them
the key to the cage (five feet away) hung on his belt loop. He
opened the cage for the robbers and they pushed him to the
ground again; he could feel something hard pressing on the
back of his head. The men tried but failed to disable the
surveillance video. They moved Mares to the far end of the
back room (where there was additional merchandise on the
wall they did not take), about 50 feet away from his desk,
and again put him face down.
The robbers next moved Magana to the back room,
then to the middle of the store where they told him to get on
the ground again, and then back inside the back room, where
no one outside could see him. The distance they moved
Magana to the back room was 40 to 50 feet. Mares, who was
face-down on the floor, could see the robber holding
something shiny to Magana‘s head. The robber told Magana
to go to his knees and then lie face down. No one outside the
store could see the back room and there was no way to
escape. Magana could see them taking merchandise from
the cage in the back room (which had been locked). The
robbers also emptied the cash register. They left by the fire
exit after Mares told them how to open it; they instructed
Mares and Magana to count to a hundred. When the robbers
were gone, Magana went to the hallway and ran to lock the
9
front door, and they called the police. The loss to the store
was more than $33,000 in merchandise and $200 in cash.
A half-block from the store, a mailman delivering mail
in the area saw a green four-door sedan, parked backwards
outside the Radio Shack. The store door was open, and a
black man inside the store passed something to another
black man outside, who put it inside the car. Shortly
afterward the car drove past the mailman, and he noticed it
did not have a rear license plate. After he finished deliveries
on the block, his next delivery was to the Radio Shack,
where he found the front door locked and observed police
arrive at the store.
Surveillance video showed the robbery. Video from the
parking lot showed a dark green Toyota Camry (with a rear
license plate) stopping in front of the store at about 9:25 a.m.
Feet exited the passenger side and moved toward the store,
and the car drove away. A different light green Camry
stopped in front of the store, backed up, and pulled forward.
A backpack recovered from inside the store bore the logo of
Alpha Phi Alpha, an historically black fraternity. Jarrod
had a tattoo of the fraternity‘s Greek letters and logo on the
left side of his chest.
Mobile phone records showed that James‘s cell phone
was in the area of the robbery on June 19 and pinged a
nearby cell phone tower three times between 8:40 a.m. and
9:22 a.m.
10
5. Counts 10, 11, 12, Corona, July 3
(robbery and kidnapping) (Jarrod, Alphonso, and
James)
At 10:30 a.m. on July 3, 2012, John Johnston was
helping a customer at a Radio Shack in Corona. Francisco
Rodriguez was stocking merchandise. Johnston noticed a
green Toyota four-door with no license plate back into a
parking stall in front of the store. Three or four black men
rushed into the store, disguised with blue hoodies, gloves,
and face coverings (a white T-shirt and darker bandannas),
and ordered Johnston, Rodriguez, and the customer to lie
face down on the floor. They told Johnston to open the safe
but he said he had neither the combination nor the keys.
The two safes were adjacent to two registers in a circular
desk area, and the robbers seemed to know the safes‘
location.
A robber asked for Rodriguez‘s store keys, and he took
them from around his neck. The robber also asked if
Rodriguez had a cell phone, rifled through his pockets when
he answered yes, and took it. The robbers locked the front
door and told Rodriguez to open the safes, which he did
while on his knees. They seemed to know the safes were
time delayed.
Telling Johnston to get up, keep his head down, and
not to look at them, the robbers pushed him about 40 feet to
the back room (which could not be seen from outside), where
they made him open boxes of merchandise to look for
iPhones. Johnston testified he was afraid for his safety,
11
because he didn‘t know what the robbers would do. The
robbers asked him if the back door had an alarm, and
Johnston told them the door just beeped when it was open,
but it was not alarmed. When the robbers finished in the
back room they commanded everyone to lie face down and
count to a hundred. Video showed a robber opening the cage
in the back room and putting phones and other merchandise
in a white garbage bag.
Rodriguez testified that at some point while he was
lying on the floor by the safes, the store phone rang and the
robbers told Rodriguez to pick it up and act ―mother fucking
happy.‖ Rodriguez told the customer on the phone that the
store did not have the part he wanted; he could feel
something hard on his back that felt like a knife or a gun.
The robbers ordered him back down on the floor and told
Rodriguez not to look up and to count loudly to a hundred.
While he was counting, Rodriguez heard the back door beep
and believed they had exited that way. He got up and went
to the back of the store, where he found his cell phone on the
floor.
Around 10:40 a.m., Jonathan McConnell tried to enter
the store and found the door locked, although merchandise
was outside. A black man was leaning against the open
trunk of a teal or aquamarine car, which was parked facing
away from the store. The man told McConnell that he was
airing the trunk out because it smelled like fish, and that a
Radio Shack employee had left in a hurry and would be back
soon. The man got into the car, did something with his cell
12
phone, got out of the car, closed the trunk, reentered the car,
and pulled around the corner to the rear of the store,
popping the trunk. McConnell looked around the building
and saw four men, wearing hoodies and with their faces
covered, come running out through the back door of the
Radio Shack; they carried merchandise to the car.
McConnell ran back to his car intending to try to block them.
When he pulled up next to the teal car, the driver was
looking back, and the left rear passenger took his mask off.
The middle passenger took his mask off too, pointed at
McConnell, and said something. ―They all kind of just
looked at me and freaked out, and then they took off.‖
McConnell chased them in his car, but they drove so fast
that McConnell could not safely keep up with them. He gave
up when they drove erratically, and called 911.
On September 19, 2013, McConnell identified a
photograph of Alphonso as the driver, a photograph of James
as the left rear passenger, and said a photograph of Jarrod
―looked familiar but not positive.‖ At trial, he identified
Alphonso and James, and identified Jarrod as the middle
rear passenger.
Cell phone records for Jarrod‘s and James‘s phones
indicated they were in the area near the Radio Shack at the
time of the robbery.
13
6. Counts 13, 14, Torrance, July 17
(robbery and kidnapping) (Jarrod, Alphonso, and
James)
On July 17, 2012 at 9:20 a.m., assistant manager Tam
Doan worked alone inside the Torrance Radio Shack,
removing merchandise from the cage in the back room to
ship to another store. He heard the front door chime and
headed for the front, and in the hallway he encountered
three black men wearing gloves and face covers and carrying
a bag. Doan dropped the merchandise, and one of the men
grabbed his collar and shoved him into the back room, past
the cage, and to the rear of the back room, about 40 feet in
all. The robbers asked him repeatedly for the combination to
the safe, but he told them he did not know it because he was
at the store only temporarily. Doan was afraid they might
hurt him because he did not have the combination. He gave
the robbers his store key, one robber disconnected three of
the four surveillance cameras, and they locked the front
door. The robbers made him kneel down. One grabbed his
collar while the others took merchandise from the cage. At
no time could Doan be seen from the outside; he was afraid
for his life. The robbers took merchandise worth about
$39,000, and around $300 in cash.
The robbers told Doan to lie face down and count to
100. When he finished, he heard the door chime. He waited
a few minutes, locked the back door, and called 911.
Afterward, Doan was so afraid he was unable to work and
14
was on workers compensation for a few months after the
robbery, during which he saw a psychiatrist.
Surveillance video at 9:20 a.m. that day showed a light
green Toyota Camry pull into the parking lot at an angle,
and three men get out and enter the Radio Shack. A few
minutes later, the car backed up directly in front of the store
and the trunk popped open. The robbers came out of the
store, put merchandise in the trunk, and got into the car
which drove away around 9:36 a.m.
Cell phone records for James Wilson showed he was in
the area during the robbery, and Jarrod‘s phone pinged off a
cell tower nearby.
7. Count 15, Harbor City, July 30
(kidnapping with knife use) (Jarrod, Alphonso, and
James)
On the evening of July 30, at 9:00 p.m., employee
Laniece Renfroe left the Radio Shack store on Sepulveda in
Harbor City with her assistant manager Juan Batz. Batz set
the alarm and locked the front door. Renfroe got into her car
and headed to her father‘s house in Rancho Palos Verdes.
Surveillance video showed a green vehicle and a tan Camry
that had been parked nearby following Renfroe. Renfroe
stopped for gas nearby, and as she drove on, surveillance
video showed the cars still following her. A teal Toyota
Camry with a white triangle sticker on the back window
kept braking in front of her and then stopped. She slammed
on her brakes and put her car in park, which unlocked her
doors. A man got out of the teal Camry, banged on Renfroe‘s
15
window with a grey folding pocket knife in his hand, and told
her to open the doors. He opened her back driver‘s side door
and got into the back seat, putting the knife to her throat.
In court, Renfroe at first testified she could not
distinguish James and Jonathan. Asked again after a
sidebar and a lunch break whether she saw the person who
had the knife to her throat, she identified James as the man
who entered her car. She had thought about what she said
about the skinnier face4 and had had a better look at the two
defendants; she had not spoken to the prosecutor or the
detective. Renfroe also identified the knife at trial; it said
Smith and Wesson on the back.
James told Renfroe to follow the teal Camry, which had
two other men in it. The Camry turned into a school
driveway, and James told Renfroe to head back to Sepulveda
and Western and lead the way. Her cell phone rang; telling
her he would kill her if she answered it, James took her
phone and keys. At Sepulveda and Western, the teal Camry
got in front of Renfroe again. A gold car that looked just like
the Camry followed Renfroe but drove away when she
turned onto Western to go to the back alley behind the Radio
Shack, where James told her to park. The teal Camry pulled
in next to her. James got her out of the car. The driver of
the Camry, whom she identified as Alphonso, and the
4
As described below, Renfroe had said earlier when
looking at photographs of James and Jonathan that the man
who got into her car had a slimmer face.
16
passenger, whom she identified as Jarrod, tried to open the
Radio Shack‘s back door. They told her to open the front
door, but she explained she did not have the keys and would
have to call her manager. All the men‘s faces were covered
with some kind of shirt from the nose down. They gave her
cell phone back and ordered her to call the other man who
was with her when she left the store. She called Batz and
told him she needed to get back inside the store, but Batz
said he was too far away to come back, and she would have
to call the manager.
James‘s cell phone records showed he was in the area
of the Radio Shack during the kidnapping, and Jarrod‘s
phone pinged off a nearby cell phone tower at 9:52 p.m.
On January 28, 2013, in photographic lineups, Renfroe
identified Alphonso as the driver of the teal Camry, writing:
―Driver and I looked eye-to-eye for at least five minutes.‖
She identified Jarrod‘s voice as that of the organizer, and
Jonathan as the robber who held a knife to her neck. Two
days later, she wrote under a photo of James: ―[I]t could be
one or the other. They both look really alike.‖ She said the
man who got into her car had a slimmer face, but she still
wasn‘t sure which man it was. At the time James‘s face was
slimmer. When she made the second identification, she did
not know that the man she identified earlier had a brother;
she just thought they looked similar.
17
8. Counts 16, 17, 18, 19, 20, 21, 22, West
Covina, July 31 (robbery, kidnapping) (Jarrod,
Alphonso, James, and Jonathan)
On July 31 about 9:30 a.m., Caroline Chavarria and
Sergio Garcia worked at separate cash registers in an AT&T
store in West Covina. Security guard Teresa Gray had
stationed herself in the front of the store, and housekeeper
Alma Cruz was cleaning in the back room. Garcia noticed a
bluish-green four-door sedan similar to a Camry pull up and
block two parking spaces in front of the store. The car doors
opened and four black men wearing masks and gloves ran
into the store, yelling at Garcia and Chavarria to get face
down on the floor. Chavarria testified the robbers told her
―not to do anything stupid because I didn‘t want to get hurt.‖
Both Chavarria and Garcia got down by their registers.
Another man wearing a black and white striped sweater
stayed by the door. Another man wore a red sweater, and
another wore a sweater with red stripes on one arm. One of
the robbers went to the break room and told Cruz to get
down on the floor, taking her cell phone. The robber with
the red striped sweater pushed Gray to the back of the store
and into the break room, holding his forearm across her
throat. A robber in a red sweater pushed Chavarria by her
lower back to the break room, about 50 feet away, and
ordered her to lie face down on the floor where Gray was
already lying.
A robber wearing a white T-shirt and a beanie, a black
and white bandanna, dark shorts, and Air Jordan shoes
18
lifted Garcia up by his shirt collar and pushed him toward
the back. Garcia heard the front door being locked from
inside. The robbers pushed Garcia face down on the break
room floor and asked him, ― ‗where‘s the stuff.‘ ‖ Garcia
pointed to the door between the break room and the vaults.
A robber lifted him up and ordered him to use the code to
open the vault door. They pushed Garcia inside and ordered
him to open the safes containing the iPhones and other
merchandise, which they subsequently loaded into a big
green bag. They ordered Garcia back to the break room and
told everyone to lie down and count to 100. The robbers
removed Garcia‘s wallet from his back pocket, and took $800
in hundred-dollar bills. The robbers also took cash from the
cash safe.
When Chavarria saw on the television showing the
store video that the robbers had left the store, they got up,
locked the doors, pulled the alarms, and called the police.
Surveillance video showed the robbery, including the robbers
loading merchandise into the car.
One of the stolen phones and the stolen cash contained
GPS tracking devices. Responding to a robbery call
identifying a light-blue Camry carrying three black men, a
police officer spotted the car, and followed it to a parking lot
at Cal Poly Pomona. The car stopped; two passengers fled
on foot; the driver stayed in the car. The police detained
both passengers. A robber wearing a bright red sweatshirt
and identified as Jonathan carried $800 in hundred-dollar
bills. The other, later identified as James, wore Jordan
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shoes, a white T-shirt, and a dark do-rag, and carried a
knife. The driver, later identified as Alphonso, wore a black
and white striped sweatshirt. The police brought Chavarria
and Garcia to Cal Poly, where they identified the three men
as the robbers.
The Camry contained boxes of electronics, six pairs of
gloves, a beanie, a bandanna, a gray ski mask, a cell phone,
a GPS tracker, and over $3,000 in cash. Alphonso‘s wallet
and driver‘s license were in the center console. The car was
registered to Alphonso‘s grandfather. Forensic investigators
found fingerprints matching Alphonso, Jarrod and Jonathan
in the car, and DNA on the gray mask matched Jarrod‘s.
Text messages on Alphonso‘s cell phone between Alphonso,
Jarrod, and James contained messages on June 19, July 3,
July 23, July 30, and July 31, discussing dividing up money,
scheduling, directions, driving, and pickup. On the dates of
the robberies, records reflected significant call activity
between Jarrod, Alphonso, and James. Alphonso‘s and
James‘s phones, and a phone registered to James‘s wife
Anisha, pinged cell towers in the specific robbery vicinities
during several of the robberies.
9. Counts 23, 24, Harbor City, August 29
(attempted robbery) (Jarrod)
On August 29, Alexis Alvarez and Juan Batz were
working at the Harbor City Radio Shack on Sepulveda (the
same Batz, and the same store, as was involved in the
July 30 kidnapping of Renfroe). About 6:40 p.m., two black
men ran into the store wearing cloth masks and gloves; one
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had a black gun. The men ordered Alvarez and Batz to the
floor and asked who had the keys. Batz had the keys, and
when they told him to lock the door, Batz went to the door
but ran out. One of the men yelled, ―‗Abort, abort,‘‖ and the
other ran to the back. Alvarez ran out the door and to other
stores in the area, and was telling other people what had
happened when she saw the two men run out of the Radio
Shack with their masks on. The men got into a small black
SUV with a license plate she remembered as 2GCV150 or
6GCV150.
10. Counts 25, 26, 27, Willow Street/Long
Beach, September 13 (robbery, kidnapping) (Jarrod)
On September 13 at 8:00 p.m., Ricky Ixtlilco was
working at the Willow Street/Long Beach Radio Shack. He
knew about the June 19 robbery at the store and usually
kept the front door locked, but after he let in a customer and
her daughter, he forgot to relock the door. Juan Mares, the
manager, was counting the money from the cash till in the
backroom with the door locked, a precaution after the
previous robbery.
At 8:15 p.m., two men entered the store yelling, ―‗get
down to the floor, get down on your stomach, don‘t look up‖;
Ixtlilco and the customers obeyed. The men wore black
hoodies and gloves. The taller one wore a leather face mask
and the other a blue bandanna covering his face. The robber
wearing the blue bandanna directed Ixtlilco to walk to the
back of the store and lie face-down on the floor. No one could
see Ixtlilco from the street. The robber took the keys from
21
Ixtlilco‘s pocket, asked him where the good stuff was, and
ran to the back room. Later, the robbers forced Ixtlilco to
return to the counter and lie down near the registers.
Mares heard the second door chime, looked at a video
monitor, and saw the robbers grabbing and pushing
customers. He immediately called 911. A robber wearing a
Halloween mask and cargo pants let himself into the back
room with keys and asked who was on the phone; Mares said
a customer, and hung up. The 911 operator called back and
Mares answered, put the phone on the desk, and got down
on the floor. The robber picked up the phone and went along
with the call. When the robbers heard sirens, they ran
around trying to leave, and Mares called 911 again. One
robber ran out the front door and the other ran out the back.
They took $1,300 in cash but left a duffel bag behind.
A police officer saw a suspected robber running out of
the back door with something in his hands; the individual
was wearing a white hockey-type Halloween mask, a dark
hooded sweatshirt, and cargo pants. The suspect saw the
officer and ran into an alley. Another officer saw Jarrod
hunkered down behind a retaining wall a block away from
the Radio Shack. The officer detained him and on the walk
to a police vehicle, Jarrod said, ― ‗Man, I did not use a gun to
rob that place.‘ ‖ The officer asked him if he had anything
illegal, and Jarrod said, ― ‗Just the money from the Radio
Shack.‘ ‖ Two rolls of cash were in his pocket. From the
back seat of the police car, Jarrod explained that he had
worked at a Radio Shack before, and was trying to help a
22
friend rob the store; he knew there was money in the
register and that Radio Shack kept electronic items in the
back. He had planned the robbery just to take cash, but he
got greedy and stole stuff from the back. He did not answer
and looked away when the officer asked if he had been
involved in any other robberies. A second suspect (not one of
appellants) was also detained. Shown the detained men,
Ixtlilco identified one as the robber with the bandanna, and
Mares identified both individuals as the robbers.
B. Trial evidence: the investigation
A Long Beach detective investigating the June 19
robbery at the Willow Street/Long Beach Radio Shack
learned of similar robberies before and after the June 19
robbery, including one on September 6. The robberies
involved common vehicles, including a green or blue Toyota
Camry; common methods (wearing gloves, covering the face,
ordering the victims to lie face down and count); common
victims (Radio Shacks or cell phone stores); and common
products stolen (Samsung and Apple). The same methods
were commonly used in the large number of robberies of cell
phone stores throughout the state.
The detective also investigated the September 13
robbery at the same Radio Shack. In a recorded jail call on
September 14, Jarrod called his wife Anisha and told her to
pick up her truck at a Long Beach intersection near a Radio
Shack, to retrieve his cell phone, and to remove the battery.
The detective learned that a black SUV had been used in the
Harbor City robbery, and that Anisha was the registered
23
owner of a black Ford Escape. In an interview the same day,
Jarrod told the detective that the night before he went with
his sister‘s boyfriend to the store, got the keys from another
employee, and went into the back, where he found the
manager on the phone with the police. He had no weapons,
grabbed the cash and some equipment, exited through the
rear door, and ran about a block. Jarrod claimed it was his
first robbery although he had been accused of others.
Jarrod‘s wife Anisha sold a Camry and bought a 2008
Ford Escape on August 27.
II. Defense evidence
A. Jarrod
Jarrod testified that he had worked at the Riverside
Diamond Wireless store and admitted he had worked with
Monique H., but insisted he had never seen Aguilar before
trial. Jarrod stored Prado‘s stolen merchandise in his car as
a favor. Jarrod was in Long Beach for business on June 19;
at home in Corona on July 3; in St. Louis for a fraternity
reunion on July 30; picking up his paycheck at a shoe store
on July 31; and he had been in Alphonso‘s car a number of
times. He used the ski mask with his DNA on it when the
weather was cold. The fraternity backpack was from a
sponsored event and not one he would carry. Jarrod owned a
music management company as well as managed a band.
Alphonso was one of his artists, and he knew Jonathan and
James (who was a drummer in the band) from church. The
text messages about money referred to the band, and the
texts about time referred to rehearsal schedules.
24
Jarrod described confessing to the September 13
robbery. He said he knew it was wrong, and he was there to
help someone out. He denied being anywhere that his cell
phone pinged. The Ford Escape with license number
6GBC159 was his wife‘s car.
B. Alphonso
Alphonso presented testimony that Renfroe told a
deputy investigating the July 30 kidnapping that the driver
was black, six feet tall, and 160 pounds, but she could not
identify any of the men if she saw them again. A coach at
Los Angeles Harbor College testified that Alphonso was an
assistant coach and was at the college on July 30 from
4:30 p.m. to 7:30 p.m., and thereafter got into his car with a
player to drive him home. Alphonso drove his grandfather‘s
green Camry. Alphonso‘s grandfather Willie Williams
testified that Alphonso visited him in the hospital on the
morning of July 30 and that he saw Alphonso again at the
house (where Alphonso lived with him and his wife) around
7:30 p.m. Alphonso‘s girlfriend testified that he responded to
her on Twitter on July 30 at 9:44 p.m.
Psychologist Dr. Mitchell Eisen testified that human
memory is affected by time, and additional information
learned later can affect what a person thinks he or she
remembers. Stress, trauma, and exposure duration can
affect memory, and photographic lineup identifications such
as six-packs are not always reliable. Cross-racial
identification is more difficult.
25
C. James
James‘s and Jonathan‘s mother testified that they are
identical twins and James is one inch taller and left-handed.
She agreed that their voices sound the same, but as their
mother she could distinguish them. James lived with her in
July. A cell tower near her home affected reception. On
July 30, James was home all day with his girlfriend, who left
at 1:00 a.m.
D. Jonathan
Jonathan did not testify and presented no evidence.
III. Rebuttal
The human resources coordinator for the shoe store
where Jarrod worked on Wednesdays testified that he
stopped working on April 13, was terminated on May 4, and
came into the store for the last time on April 30.
IV. Verdicts
The jury found Jarrod not guilty on count 1
(commercial burglary, Fontana, April 24), as well as
counts 23 and 24 (attempted robbery, Harbor City,
August 29). The jury found Jarrod guilty as charged on 20
counts (3, 4, 5, 6, 7, 8, 9, 11, 12, 13, 14, 15, 17, 19, 20, 21, 22,
25, 26, 27). The jury found Jarrod guilty of the lesser offense
of false imprisonment by violence (§ 236) on counts 2 and 10;
and of the lesser offense of kidnapping (§ 207, subd. (a)) on
counts 16 and 18.
The jury found Alphonso not guilty on counts 4, 5, and
6 (robbery and kidnapping, Fontana, May 8). The jury found
Alphonso guilty as charged on counts 8, 9, 11, 12, 14, 15, 17,
26
19, 21, and 22. The jury found Alphonso guilty of the lesser
offense of false imprisonment by violence on counts 7, 10, 13,
16, 18, and 20.
The jury found James guilty as charged on counts 7, 8,
9, 11, 12, 13, 14, 15, 17, 19, 20, 21, and 22. The jury found
James guilty of the lesser offense of false imprisonment by
violence on count 10, and guilty of the lesser offense of
kidnapping on counts 16 and 18. The jury found the knife
allegation true.
The jury found Jonathan guilty as charged on counts
17, 19, 20, 21, and 22; and guilty of the lesser offense of
kidnapping on counts 16 and 18.
V. Sentencing
The court sentenced Jarrod to a total term of 69 years
to life in state prison; Alphonso to 24 years to life in state
prison; James to 48 years four months to life in state prison;
and Jonathan to 20 years eight months in state prison. All
received presentence custody credits.
All four filed timely appeals. Each appellant joins in
the opening briefs of the other.
27
DISCUSSION
I. Insufficient evidence supported the convictions
for kidnapping to commit robbery and kidnapping,
but sufficient evidence supported the convictions for
felony false imprisonment.
A. Kidnapping to commit robbery (aggravated
kidnapping)
Jarrod, James and Jonathan were convicted of
kidnapping to commit another crime (robbery) (aggravated
kidnapping), in violation of section 209, subdivision (b)(1)
(Jarrod: counts 4, 7, 13, 20, 25; James: counts 7, 13, 20;
Jonathan: count 20). Jarrod, James, and Jonathan argue
there was insufficient evidence to support those convictions,5
and we agree.
On a challenge to the sufficiency of the evidence, our
task is to view the evidence in the light most favorable to the
prosecution to determine whether any rational trier of fact
could have found the elements of the crime beyond a
reasonable doubt. (People v. Young (2005) 34 Cal.4th 1149,
1175.) We ― ‗ ―presume in support of the judgment the
5
The jury also convicted Jarrod, Alphonso, and James
on count 15, kidnapping to commit robbery (Renfroe) on
July 30, but appellants do not argue that insufficient
evidence supports their convictions on that count. James
includes count 15 in his list of counts of aggravated
kidnapping, but argues only that ―[a]ll the movements were
within the store,‖ and so makes no arguments as to count 15
which took place entirely outside the store.
28
existence of every fact the trier could reasonably deduce from
the evidence.‖ ‘ ‖ (Ibid.)
Aggravated kidnapping for the purpose of robbery
under section 209, subdivision (b)(1), ―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. [Citations.] ‗These two aspects are
not mutually exclusive, but interrelated.‘ [Citation.] [¶] 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.] [¶] ― ‗The second prong . . . 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 victim‘s foreseeable
attempts to escape, and the attacker‘s 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.‘ ‖ (People v.
Martinez (1999) 20 Cal.4th 225, 232–233 (Martinez).)
―Whether the forced movement of the victim was merely
incidental to the target crime, and whether that movement
29
substantially increased the risk of harm to the victim, ‗is
difficult to capture in a simple verbal formulation that would
apply to all cases.‘ ‖ (People v. Curry (2007) 158 Cal.App.4th
766, 780.)
―[W]hen in the course of a robbery a defendant does no
more than move his victim around inside the premises in
which he finds him—whether it be a residence . . . or a place
of business or other enclosure—his conduct generally will
not be deemed to constitute the offense proscribed by section
209. Movement across a room or from one room to another,
in short, cannot reasonably be found to be asportation ‗into
another part of the same county.‘ (Pen. Code, § 207.)‖
(People v. Daniels (1969) 71 Cal.2d 1119, 1140.) ― ‗ ― ‗It is a
common occurrence in robbery, for example, that the victim
be confined briefly at gunpoint or bound and contained, or
moved into and left in another room or place.‘ ‖ [Citation.]
Our Supreme Court concluded that ―such incidental
movements are not of the scope intended by the Legislature
in prescribing the asportation element.‖ ‘ ‖ (People v. Leavel
(2012) 203 Cal.App.4th 823, 833, citing People v. Daniels,
supra, 71 Cal.2d at p. 1134.) ―[T]he Daniels court recognized
‗ ―the absurdity of prosecuting for kidnapping in cases where
the victim is forced . . . to the back of his store in the course
of a robbery.‖ ‘ Generally, brief movement inside the
premises where a robbery is being committed is considered
incidental to the crime and does not substantially increase
the risk of harm otherwise present.‖ (People v. Hoard (2002)
103 Cal.App.4th 599, 603.) ―[F]or aggravated kidnapping,
30
the victim must be forced to move a substantial distance, the
movement cannot be merely incidental to the target crime,
and the movement must substantially increase the risk of
harm to the victim. Application of these factors in any given
case will necessarily depend on the particular facts and
context of the case.‖ (People v. Dominguez (2006) 39 Cal.4th
1141, 1153.)
Count 4 (Jarrod) charged the aggravated kidnapping of
Vanessa Martinez at the Fontana Diamond Wireless Store
on May 8. Martinez was working in the front of the store
when a robber ran in, grabbed her by the arm, pushed her 40
feet to the back of the store and into the break room, and
then took Martinez about another 20 feet into the conference
room/storeroom behind the break room, where Aguilar was.
Aguilar thought he recognized the robber‘s voice from
company training. The robbers took merchandise from the
vault. The robber moved Martinez a total of 60 feet, from
the front of the store to the conference room/storeroom where
the unlocked vault containing the merchandise was located.
The conference room could not be seen from the street.
Count 7 (Jarrod and James) charged the aggravated
kidnapping of Jorge Magana at the Willow Street/Long
Beach Radio Shack on June 19. Magana was in the front of
the store when a robber made him lie down on the floor and
two other robbers went to the back room. Eventually the
robbers moved Magana about 40 to 50 feet to the back room,
where they took merchandise from the cage. The robbers
also emptied the cash register.
31
Count 13 (Jarrod and James) charged the aggravated
kidnapping of Tam Doan at the Torrance Radio Shack on
July 17. As Doan headed to the front of the store from the
back room, three robbers intercepted him in the hallway.
They grabbed Doan‘s collar, pushed him to the cage in the
back room, and then pushed him to the back of the back
room, for a total movement of about 40 feet. The back room
could not be seen from the street. The robbers took
merchandise from the cage.
Count 20 (Jarrod, James, and Jonathan) charged the
aggravated kidnapping of Caroline Chavarria at the AT&T
store in West Covina. Four men entered the store, and one
robber pushed Chavarria to the back of the store to the
break room, a distance of about 50 feet from her cash
register. The robbers took merchandise from the vaults,
reached through a door in the break room.
Count 25 (Jarrod) charged the aggravated kidnapping
of Ricky Ixtlilco at the Willow Street/Long Beach Radio
Shack on September 13. Two robbers entered; one robber
made Ixtlilco walk to the back of the store from the sales
floor, where no one could see him from the street. Later, the
robbers made him walk back to the counter and lie down
near the registers. The cash till was in the back room and
Jarrod told police he knew they kept the electronics in the
back.
The evidence in each of the five counts on which the
jury convicted Jarrod, James, and Jonathan of aggravated
kidnapping shows movement of the employee victims
32
distances of 60, 50, and 40 feet, always inside the store, from
locations closer to the front of the store (and visible from
outside) to the rears of the store or to back rooms, where the
merchandise and/or cash was kept. Consistently, these
movements were incidental to the robberies, which all
followed the same pattern. The robbers entered the stores
through the front doors and moved the employee victims to
areas closer to the merchandise they planned to take. None
of the movements was unnecessary to the robbery. (People v.
Leavel, supra, 203 Cal.App.4th at p. 835.) ―[R]obbery of a
business owner or employee includes the risk of movement of
the victim to the location of the valuables owned by the
business that are held on the business premises. Many
retail businesses hold large amounts of cash or other
valuable personal property on the business premises,
frequently in a secure area away from public view, often in a
safe or a vault. . . . The fact thresholds within the business
are crossed cannot elevate robbery to aggravated
kidnapping, given that all of the movement occurred within
close proximity to where the robbery commenced and the
only thresholds crossed were those that separated appellants
from the . . . property.‖ (People v. Washington (2005) 127
Cal.App.4th 290, 300.)
Respondent argues that the backs of the stores were
―shielded from view,‖ and thus the movements from ―a
relatively safe public sales area‖ put the victims at an
increased risk of harm. We disagree. In People v. Hoard,
supra, 103 Cal.App.4th at page 607, ―defendant robbed the
33
jewelry store by forcing the two employees to move about 50
feet to the office at the back of the store. Confining the
women in the back office gave defendant free access to the
jewelry and allowed him to conceal the robbery from any
entering customers who might have thwarted him.
Defendant‘s movement of the two women served only to
facilitate the crime with no other apparent purpose.‖ (Ibid.)
While ―a rape victim is certainly more at risk when
concealed from public view and therefore more vulnerable to
attack,‖ the same is not necessarily true for a robbery victim.
(Ibid.) In People v. Leavel, supra, 203 Cal.App.4th at
page 836, the court concluded that ―forcing the [robbery
victim] outside in the dark increased the risk of harm to her
from a possible escape attempt,‖ and noted that the
defendant ―could have secured her in one spot in the home
and left her alone while he searched the house and escaped
with the loot. He had no reason to manhandle the [victim] to
achieve his robbery objective.‖ Here, the robbers had good
reason to move the victims to the back of the store to achieve
their objective of emptying the cages and safes of
merchandise without detection by customers or other people
outside the store. Their objective was robbery, not harm to
the store employees, and the record does not contain
sufficient evidence that moving the victims to the backs of
the stores resulted in a substantially increased risk of harm
from the robberies.
Thus, the convictions of aggravated kidnapping on the
following counts must be reversed: As to Jarrod, counts 4, 7,
34
13, 20, and 25; as to James, counts 7, 13, and 20; as to
Jonathan, count 20. We therefore need not reach Jonathan‘s
argument that section 209, subdivision (b) is void for
vagueness, nor his argument that his life sentence for
robbery and aggravated kidnapping is cruel and unusual.
B. Lesser included offenses (kidnapping and
false imprisonment)
Each defendant argues that his convictions of
kidnapping and/or false imprisonment, which are lesser
included offenses of aggravated kidnapping, must also be
reversed for insufficient evidence, as follows: Jarrod,
counts 16 and 18 (kidnapping) and counts 2 and 10 (false
imprisonment); Alphonso, counts 7, 10, 13, 16, 18, 20 (false
imprisonment); Jonathan, counts 16 and 18 (kidnapping);
and James, counts 16 and 18 (kidnapping) and count 10
(false imprisonment). The defendants moved to dismiss the
aggravated kidnapping counts before trial, and the court
denied the motions.
1. Kidnapping
Section 207, subdivision (a), defines simple kidnapping:
―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 part of the same county, is guilty of kidnapping.‖
The prosecution must prove that the defendant unlawfully
moved the victim by the use of physical force or fear, without
the person‘s consent, and the movement was for a
substantial distance (the asportation element). (People v.
35
Bell (2009) 179 Cal.App.4th 428, 435.) For simple (rather
than aggravated) kidnapping, the jury is to ― ‗consider the
totality of the circumstances,‘ ‖ not simply distance, in
deciding whether the movement was substantial. (Id. at
p. 436, quoting Martinez, supra, 20 Cal.4th at p. 236.) ―[I]n 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 forseeable
attempts to escape and the attacker‘s enhanced opportunity
to commit additional crimes.‖ (Martinez, at p. 237.)
Unlike asportation for aggravated kidnapping,
asportation for simple kidnapping does not require a finding
of ―an increase in harm, or any other contextual factors,‖ so
long as the victim was moved a substantial distance.
(Martinez, supra, 20 Cal.4th at p. 237.) However, ―in a case
involving an associated crime, the jury should be instructed
to consider whether the distance a victim was moved was
incidental to the commission of that crime in determining
the movement‘s substantiality. . . . [S]uch consideration is
relevant to determining whether more than one crime has
been committed, and is amply supported by the case law.‖
(Ibid.) An associated crime for the purposes of simple
kidnapping ―is any criminal act the defendant intends to
commit where, in the course of its commission, the defendant
also moves a victim by force or fear against his or her will. It
36
is not more complicated than that.‖ (People v. Bell, supra,
179 Cal.App.4th 438–439.)
Jarrod, Jonathan, and James were convicted of simple
kidnapping of security guard Teresa Gray (count 16) and
employee Sergio Garcia (count 18) during the July 31
robbery at the AT&T store in West Covina. Four robbers ran
into the store. One pushed Gray, the security guard, from
the front to the back of the store and into the break room
(about 50 feet), holding his forearm across her throat, and
ordered her to lie face down on the floor. Another robber
lifted Garcia up by his shirt collar and pushed him from the
register in the front of the store to the break room, then to
the floor, face down. They next pushed Garcia into the
adjoining vault room and ordered him to open the safes. The
robbers ordered Garcia back to the break room, told those
inside to lie down and count to 100, and left the store. We
must determine whether substantial evidence supports the
convictions for simple kidnapping with an associated crime,
with robbery constituting a criminal act the defendants
intended to commit when, in the course of its commission,
they forcibly moved Gray and Garcia against their will.
We have already concluded that the asportation of
Garcia‘s colleague Chavarria, whom the robbers also forced
from a cash register into the back room about 50 feet away
during the July 31 robbery, was insufficient to support
convictions of aggravated kidnapping in count 20 because it
was within the store and incidental to the robbery. The
robbers moved Gray and Garcia roughly the same distance.
37
To determine whether the movement was substantial for the
purpose of kidnapping with an associated crime of robbery,
we examine whether the distance Gray and Garcia were
moved was incidental to the commission of robbery. We
again conclude that it was. Both victims were moved from
the front of the store to the back room, and Garcia through a
door to the vault room, where the robbers took the
merchandise from the safes. The movement of Gray and
Garcia was merely incidental to the robbery, and was
therefore not substantial. The convictions of simple
kidnapping on counts 16 and 18 must be reversed as to
Jarrod, Jonathan, and James.
2. Felony false imprisonment by violence
or menace
Section 236 defines false imprisonment as ―the
unlawful violation of the personal liberty of another.‖ False
imprisonment occurs ―when ‗the victim is ―compelled to
remain where he does not wish to remain, or to go where he
does not wish to go.‖ ‘ ‖ (People v. Reed (2000) 78
Cal.App.4th 274, 280.) False imprisonment is a felony if, as
stated in section 237, subdivision (a), ―false imprisonment
[is] effected by violence [or] menace.‖ Violence is ― ‗ ― ‗the
exercise of physical force used to restrain over and above the
force reasonably necessary for such restraint.‘ ‖ ‘ ‖ (Reed, at
p. 280.) ― ‗Menace‘ ‖ is defined as ‗ ― ‗a threat of harm
express or implied by word or act.‘ ‖ ‘ ‖ (Ibid.) When a
defendant ordered his victims to sit and when they resisted,
told them ― ‗If you don‘t, then I will do something,‘ ‖ ―[t]hese
38
words alone, in context, constituted evidence of an implied, if
not express, intent to harm them‖ and established menace.
(People v. Aispuro (2007) 157 Cal.App.4th 1509, 1513,
criticizing People v. Matian (1995) 35 Cal.App.4th 480.)
―Threats can be exhibited in a myriad number of ways,
verbally and by conduct.‖ (Ibid.)
No asportation is required. ―[K]idnapping, be it simple
or aggravated, requires a degree of asportation not found in
the definition of false imprisonment. Indeed, false
imprisonment can occur with any movement or no movement
at all.‖ (People v. Reed, supra, 78 Cal.App.4th at p. 284.) In
People v. Reed, the court found sufficient evidence of felony
false imprisonment when the robbers directed the victims, at
gunpoint, to get down and stay down on the floor; placed the
gun against two female victims‘ heads and pistol-whipped a
male victim; and both women believed they would be killed.
(Id. at p. 281.)
The jury convicted Jarrod of false imprisonment by
violence of Monique H. (count 2) during the April 25 robbery
at the Diamond Wireless store in Riverside. A robber
holding a knife to Monique H.‘s throat pulled her to a back
room, and a few minutes later, made her lie on the floor face
down while he and another robber (whose voice Monique H.
recognized as Jarrod) took cell phones. The use of a weapon
escalated the force used to more than was reasonably
necessary for the restraint, and constitutes sufficient
evidence of felony false imprisonment by violence.
39
The jury convicted Alphonso of false imprisonment by
violence of Jorge Magana (count 7) during the June 19
robbery of the Willow Street/Long Beach Radio Shack. A
robber holding a knife told Magana to lie face-down on the
floor or he would ―shank‖ him. (Alphonso was identified as
the driver bringing the robbers to the scene.) The robbers
moved Magana to the back room, holding something shiny to
his head, and made him lie face down while they took
merchandise from the cage. A threat, a knife, and a shiny
object held to Magana‘s head were used to force Magana to
the back room and to the floor to stay face-down during the
robbery. The use of a weapon and the threat to harm
Magana is sufficient evidence of felony false imprisonment
by violence or menace.
The jury convicted Jarrod, Alphonso, and James of
felony false imprisonment of John Johnston in count 10
during the July 3 robbery at the Corona Radio Shack. Three
robbers ran into the store, ordered Johnston to lie face down
on the floor, then made him get up and pushed him to the
back room where they made him open boxes of merchandise
and then again commanded him to lie face down and count
to 100. Johnson testified that he feared for his safety. The
jury may properly consider fear as evidence of menace.
(People v. Islas (2012) 210 Cal.App.4th 116, 127.) The jury
could reasonably infer that the robbers ―coerced [Johnson]
into cooperating with their demands through an implied
threat of harm‖ (id. at p. 128) when they commanded that he
lie down and count to a hundred, with the implication that
40
he would be harmed if he did not remain still for the full
count. This constitutes sufficient evidence of menace to
support Jarrod‘s, Alphonso‘s and James‘s convictions for
felony false imprisonment in count 10.
The jury convicted Alphonso of felony false
imprisonment in count 13 (Doan), during the July 17 robbery
at the Torrance Radio Shack. Three robbers grabbed Doan‘s
collar and shoved him to the back room, where they made
him kneel down, and one held his collar while the others
took merchandise from the cage. They then told Doan to lie
face down and count to 100, and were gone by the time he
finished. As was the case for Johnston in count 10, this
constitutes sufficient evidence of menace. The robbers
repeatedly asked Doan for the combination (which he did not
have), making Doan fear they would hurt him. They then
forced Doan to his knees, and one robber held his collar
while the others took merchandise from the cage; Doan
feared for his life. The robbers ordered him to lie face down
and count to 100. Doan completed the count and waited a
few minutes before locking the door and calling 911. On this
evidence the jury could find implied threats of harm to Doan
sufficient to support Alphonso‘s conviction for felony false
imprisonment in count 13.
The jury convicted Alphonso of felony false
imprisonment in counts 16 (Gray), 18 (Garcia), and 20
(Chavarria), during the July 31 robbery at the West Covina
AT&T store. Four robbers entered the store, and according
to Chavarria, said not to do anything stupid if they didn‘t
41
want to get hurt. The robbers pushed Gray with an arm
across her neck, and Garcia by the shirt collar, to the break
room, made both lie down on their faces, made Garcia get up
to open the vault, stole merchandise, and then forced him
back down to the floor face-down and made him count to 100
while they left the store. One of four robbers pushed
Chavarria by her lower back to the break room and ordered
her to lie face down on the floor while they made Garcia open
the safes and took the merchandise, and then told everyone
to count to 100. Viewing the evidence in the light most
favorable to the prosecution, sufficient evidence showed that
the robbers used menace in the form of a threat (made when
they entered, and when all three victims were in the front of
the store) to hurt the victims if they did anything stupid, to
make the victims go to the back room, get down on the floor,
and stay face-down while the robberies took place and the
robbers left the store. Substantial evidence supported
Alphonso‘s convictions of felony false imprisonment on
counts 16, 18, and 20.
II. Evidence of uncharged robberies was improperly
admitted but did not prejudice Jarrod.
Jarrod argues that the trial court improperly admitted
into evidence three uncharged robberies (on June 6,
August 20, and September 6) which lacked any evidence
establishing identity. We agree, but we also find the error
harmless.
Alphonso and James objected to the admission into
evidence of three robberies not charged in the information,
42
on the ground that two of the three robberies occurred after
July 31, when they were in custody. Jarrod did not object.
The trial court denied the objection, stating that
identification was not the only issue, but modus operandi
was involved: wearing all black and gloves, targeting the
end of the day, and moving the individuals from the front to
the back of the store to avoid detection. ―That goes beyond
just the I.D. of the person,‖ and the probative value exceeded
the prejudicial effect. Before the testimony regarding the
August 20 uncharged robbery, the trial court instructed the
jury that events after July 31 had no application to
Alphonso, James, or Jonathan.
The prosecution introduced testimony regarding three
uncharged robberies. On June 6, at a Radio Shack in
Corona, around 9:00 a.m. a tan Camry backed up into a
parking spot in front, left the scene, and returned. Two
black men got out of the car, and ran in the front door
wearing jeans, gloves, hoodies, and bandannas across their
faces. One pointed a knife at the store manager and yelled,
― ‗You know what to do.‘ ‖ Holding the knife to the back of
the manager‘s neck and telling him that if he did what he
was told, he could see his family again, the robber grabbed
him by the collar and shoved him to a corner of the back
room 40 or 50 feet away. The other robber took the keys to
the cages from the manager, and when he found no iPhones,
forced the manager to the front of the store to input the code
for the safes. The robber then shoved the manager to the
back room. The robbers cut the surveillance feed and took
43
the iPhones from the safe, sat the manager at the desk and
told him to keep his head down and count to 50, and left the
store with approximately $33,000 in merchandise.
On August 20, at 9:00 a.m., a sales associate in the
Norco Radio Shack noticed a brown/gold car (shown on video
as a tan Camry) in the parking lot driving forward as a
young black man carrying a duffel bag and wearing gloves, a
bandanna, and a hat came into the store. The young man
jumped over the counter, grabbed her shoulder, and asked
where the phones were. She told them they were in the back
office, and he made her lock the front door and forced her to
the back office through a hallway, gripping her shoulder.
She unlocked the cabinet door and he told her to go under
the desk, lie face down on her stomach, and count to 100. He
took merchandise from the cabinet and cash from the cash
register, then exited by the back door.
On September 6, about 8:40 p.m., a sales associate at
the Atlantic/Long Beach Radio Shack saw two black men
enter the store, wearing hoodies and gloves, with bandannas
covering their faces. One jumped over the counter, grabbed
the back of her neck, and walked her toward the back room
where a co-worker was in the restroom. The robbers made
her lie down on the ground face-down and then kicked the
bathroom door open and made her co-worker lie down next
to her. The robbers filled the same bag twice with
merchandise, going in and out the back door, and then made
her open the safe, from which they took a deposit bag and
44
more merchandise. They told the employees to count to 100,
and walked out the back door.
In closing argument, the prosecutor argued that the
uncharged incidents were ―there to show you the
M.O. . . . Those all show you that they are doing the same
thing on prior occasions, and you are allowed to use that to
help show you . . . that they did all the other crimes.‖
Although Jarrod did not object, we retain discretion to
review claims affecting his substantial rights. (In re
Sheena K. (2007) 40 Cal.4th 875, 887, fn. 7.) Evidence Code
section 1101, subdivision (a) ―prohibits admission of evidence
of a person‘s character, including evidence of character in the
form of specific instances of uncharged misconduct, to prove
the conduct of that person on a specified occasion.‖ (People v.
Ewoldt (1994) 7 Cal.4th 380, 393 (Ewoldt).) Subdivision (b),
however, allows ―the admission of evidence that a person
committed a crime, civil wrong, or other act when relevant to
prove some fact (such as motive, opportunity, intent,
preparation, plan, knowledge, identity, absence of mistake or
accident . . .) other than his or her disposition to commit
such an act.‖ ―[E]vidence of a defendant‘s uncharged
misconduct is relevant where the uncharged misconduct and
the charged offense are sufficiently similar to support the
inference that they are manifestations of a common design
or plan.‖ (Ewoldt, at pp. 401–402.) ― ‗Because this type of
evidence can be so damaging, ―[i]f the connection between
the uncharged offense and the ultimate fact in dispute is not
clear, the evidence should be excluded.‖ ‘ ‖ (People v. Felix
45
(1993) 14 Cal.App.4th 997, 1004.) We review for abuse of
discretion. (Ewoldt, at p. 405.)
The trial court instructed the jury that they could
consider the uncharged crimes to show the defendants‘
common plan, intent, identity, motive, knowledge, means, or
the existence of a conspiracy. On appeal, respondent argue
that ―evidence of Jarrod‘s participation in three additional
strikingly similar robberies was admitted . . . to show intent,
motive, and common plan.‖ We must decide whether the
uncharged robberies were probative of intent, motive, or
common plan, and if so, whether any probative value was
outweighed by the robberies‘ prejudicial impact as character
evidence.
The prosecutor presented no evidence of Jarrod‘s
participation in the three uncharged crimes to support their
admission into evidence. None of the witnesses to the
uncharged crimes identified Jarrod, or testified to any detail
that demonstrated that Jarrod (or any other defendant)
participated in the uncharged robberies. The robberies lack
any connection to Jarrod beyond similarity to the crimes for
which he was on trial, and they therefore had no probative
value regarding his guilt of the charged crimes.
Testimony also established that the elements shared
by the charged and uncharged robberies were typical of a
large number of robberies statewide. Detective Donald
Collier testified that the charged crimes had common
vehicles and a common modus operandi (the robbers wearing
gloves, covering the face, having the victims lie face down
46
and count to 50 or 100, targeting Radio Shack or cell phone
stores, and taking Apple and Samsung products). He also
agreed that the same modus operandi was ―a very common
practice‖ in the large number of robberies of cell phone
stores throughout California. Such a common statewide
pattern is not probative of a common scheme or plan which
is detailed or distinctive enough to tend to show a single
robber (or robbers) committed all the crimes in this case,
whether charged or uncharged. Two of the uncharged
robberies involved a tan Camry. A tan Camry was used by
the robbers on April 25, Jarrod was arrested in a gold
Camry, a gold car was involved in the kidnapping for
robbery of Renfroe, and Jarrod‘s wife sold a Camry on
August 27. A Camry or other gold or tan car is not
distinctive enough to mandate a conclusion that the
uncharged crimes were committed by Jarrod.
Even if the uncharged crimes were similar in every
detail and if the details were distinctive, rather than
common, the uncharged crimes would have no probative
value as to Jarrod‘s guilt of the charged crimes. ―Evidence of
a common design or plan is admissible only to establish that
the defendant engaged in the conduct alleged to constitute
the charged offense, not to prove other matters, such as the
defendant‘s intent or identity as to the charged offense.‖
(Ewoldt, supra, 7 Cal.4th at p. 406, italics added.) We repeat
that the prosecution did not show any link between Jarrod
and the uncharged crimes. Lacking a connection to Jarrod,
the uncharged crimes tend to show only that similar crimes
47
had been committed around the same time as the charged
crimes for which Jarrod had been charged, but not yet
convicted. The evidence would tend to prove only that the
same person or persons had committed all the crimes. The
evidence would not tend to prove that person was Jarrod.
Where ―[l]ittle independent evidence was presented that
defendant committed the [uncharged] crimes . . . only if the
jury found defendant committed the crimes in this case
would it find he committed the [uncharged] crimes.‖ (People
v. Carpenter (1997) 15 Cal.4th 312, 380.) Therein lies the
snag.
A brief description of the evidence in cases cited by the
court in Ewoldt, supra, 7 Cal.4th 380 illustrates the
circumstances under which uncharged misconduct can be
used to show a common design or plan. Where defendant
was on trial for the murder of his wife and there was
testimony that he and a confederate had killed her to obtain
the proceeds of an insurance policy, evidence that three
years earlier, the defendant had murdered his former wife
(also insured) for financial gain was admissible. (Id. at
pp. 394–395.) Where a physician defendant was on trial for
raping a patient after administering an injection that made
her dizzy, the court properly admitted the testimony of two
former patients and a former employee stating that the
physician had also raped them after he administered
injections. (Id. at p. 396.) Where the defendant was on trial
for murdering two of his wives and his nephew with a lethal
dose of insulin, evidence that the defendant had used the
48
same method to murder a third wife, the ex-husband of
another wife, and a friend, was admissible ― ‗to show a
common plan or scheme.‘ ‖ (Id. at p. 397.) In Ewoldt itself,
the court concluded that the trial court did not abuse its
discretion in admitting evidence that the defendant, on trial
for molesting his young stepdaughters, had molested other
stepdaughters in a very similar fashion. (Id. at p. 403.) In
each case the evidence established that the defendant was
the perpetrator of the uncharged crimes, and those crimes
were so similar as to show common design or plan with the
crimes for which the defendant was on trial. By contrast,
here there is no evidence whatsoever that Jarrod was the
perpetrator of the uncharged crimes.
The uncharged crimes evidence therefore had little
probative value, as it did not link Jarrod with the uncharged
crimes. For the same reason, the evidence had little
potential for prejudice. ― ‗[C]learly, if the defendant cannot
be connected to the prior [uncharged] act, admission of
evidence concerning it will not normally prejudice him.‘ ‖
(People v. Carpenter, supra, 15 Cal.3d at p. 380.) ―Erroneous
admission of other crimes evidence is prejudicial if it appears
reasonably probable that, absent the error, a result more
favorable to the defendant would have been reached.‖
(People v. Felix, supra, 14 Cal.App.4th at pp. 1007–1008.)
The potential for some prejudice arises from the danger that
adding three similar uncharged robberies to the 10 charged
robberies helped to persuade the jury that Jarrod was guilty
of the charged crimes. Nevertheless, we see no reasonable
49
probability that the jury would not have convicted Jarrod if
the evidence had been excluded. The evidence against
Jarrod in the charged robberies was strong, and it is not
reasonably probable that the jury would have acquitted him
if the trial court had excluded the evidence of the uncharged
crimes.
III. Renfroe’s identification of James’s voice was
inadmissible hearsay.
Jarrod, Alphonso, and James argue that the trial court
erred when it allowed evidence that Renfroe had identified
their voices.
Renfroe, the victim in count 15 (July 30, aggravated
kidnapping with knife use) testified that six months later in
January 2013, she identified Jonathan in a photo lineup as
the man who held the knife to her neck in the car. Two days
later, shown another photographic lineup, she wrote under a
photo of James, ―It could be one or the other. They both look
really alike‖ (referring to her earlier identification of
Jonathan), and said the one in her car had a thinner face. In
a sidebar, the prosecutor stated that Detective Matute had
played voice recordings for Renfroe to determine which of the
two twins was at the scene. From their voices, Renfroe had
identified Alphonso as the driver of the teal Camry, James
as the man who got into her car and held the knife to her
throat, and Jarrod as the passenger in the Camry.
Alphonso filed a motion to exclude any testimony by
Detective Matute that Renfroe had made voice
identifications from recordings, arguing that the voice
50
identification procedure was unduly suggestive and
Detective Matute‘s testimony was hearsay. Jarrod and
James joined in the objection. The trial court denied the
motion, stating that the testimony was not offered for the
truth of the matter. Renfroe had already identified Alphonso
in a photographic lineup. The sole purpose of the voice
lineup was to prove whether Renfroe could distinguish
James from his twin Jonathan. The court offered to give a
limiting instruction.
Detective Matute testified that after Renfroe was
unable to choose between Jonathan and James to make a
photo identification of the man who got into her car, he
recorded ordinary conversations with all four defendants
speaking naturally. He went to Renfroe‘s house with a
partner, and played the recordings to see whether she
recognized the voices. She identified Alphonso and Jarrod
by their voices, but she did not recognize Jonathan‘s voice.
The minute she heard James‘s voice, she began to cry and
shake: ―She said he was the guy that got in the back seat
and put the knife to her throat.‖ On cross-examination,
Detective Matute refreshed his recollection with the police
report, and testified: ―She was not sure but thought the
voice belonged to the suspect who entered her car.‖ He had
not recorded the voice identification procedure and did not
keep track of what parts of the recorded conversations he
played for Renfroe.
Later, the court instructed the jury: ―Remember back
Detective Angel Matute was talking about one of the
51
witnesses recognizing a voice? The whole idea behind that
was only to distinguish the voice of defendant no. 3, that
James Wilson, and defendant no. 4, Jonathan Wilson, if at
all. It is not to be considered and not to be held against
anybody else. [¶] I know that he has taken the voice
of . . . Jarrod Williams and Alphonso Williams. That is not
to be held against Williams and Williams whatsoever. You
are not to consider that for any other purposes except to
distinguish the voice of the two Mr. Wilsons, if it does that at
all.‖ After James‘s mother testified, the trial court repeated
the instruction: ―Remember Detective Matute was getting
voice exemplars from the two Mr. Williams and two
Mr. Wilsons. That is not to be used in any way in this
particular case and not to be held against Mr. Alphonso
Williams or Jarrod Williams. [¶] The whole idea behind
that was to see if the witness could distinguish between
Mr. Wilson and Mr. Wilson. For the limited purpose that is
allowed to be considered if you find it credible. It cannot be
used for any other purpose and cannot be held against
Mr. Williams and Mr. Williams.‖ When in closing, the
prosecutor mentioned that Renfroe had identified Alphonso‘s
voice, the court sustained an objection by Alphonso‘s lawyer
and repeated: ―Ladies and gentlemen, you will remember
my limiting instruction that the voice identification is solely
to distinguish James and Jonathan Wilson. It is not to be
attributed to or considered for any purpose as to Jarrod and
Alphonso Williams.‖
52
James argues that the voice identification procedure
was unfair because Renfroe must have known that the
recordings were of James and Jonathan and that
Detective Matute wanted her to try to distinguish between
them. He also contends that Detective Matute should have
included additional, unrelated voices, should have played the
recordings for Renfroe sooner than six months after the
kidnapping, and should have recorded appellants‘ voices
talking like ―gangster[s]‖ as Renfroe testified they did during
the crime.
In People v. Osuna (1969) 70 Cal.2d 759, the victim
testified that he identified the defendant at the district
attorney‘s office by standing outside the door to listen to him
talk to the district attorney for 10 or 15 minutes, and then
coming in to the office and confronting him. The court
concluded that since the victim ―had heard the robbers talk
for over two hours but had not seen them unmasked, it was
reasonable to seek a voice identification.‖ (Id. at p. 765.)
While it might have been preferable to have the victim hear
others speak, ―in view of the length of time he was able to
hear the robbers talk during the crime, it was not
unreasonable to have him confront a single suspect.
[Citations.] Moreover, there is nothing in the record to show
that the district attorney in any way suggested the response
[the victim] should make. . . . [T]he procedure was not so
suggestive as to give rise to a substantial likelihood of
misidentification.‖ (Ibid.)
53
Here, six months after the crime, Renfroe identified
one of the twins (Jonathan) in a photo lineup as the person
who entered her car and held a knife to her throat; all the
robbers had concealed their faces from the nose down. Two
days later, when she saw a photo lineup with James‘s photo
she said it also could be him because they looked so alike.
The voice identification, shortly after she identified James,
was therefore not unnecessary. The men all were partially
masked. Presented with four voice recordings, Renfroe
identified the voices of Jarrod and Alphonso. She also failed
to recognize Jonathan‘s voice, but recognized James‘s. As in
People v. Osuna, supra, 70 Cal.2d 759, she had ample
opportunity to hear the voice of the man with the knife who
gave her directions from the back seat, and so it was not
unreasonable (though not the best practice) not to include
other, unrelated voices. As in that case, she identified
James‘s voice from conversation after the crime. It would
have been more, rather than less, suggestive to use a
recording of James talking like a ―gangster‖ than to present
her with James‘s voice in conversation about unrelated
subjects. James makes no argument that Detective Matute
suggested how Renfroe should respond. We do not see a
substantial likelihood of misidentification.
James also argues that Detective Matute‘s testimony
that Renfroe identified James‘s voice was inadmissible
hearsay because it was offered for its truth, to show that
Renfroe identified his voice as the man with the knife.
Renfroe had already identified photographs of both Jonathan
54
and James, and said she could not distinguish them,
although she thought Jonathan‘s face was slimmer.
Respondent argues that the voice identification was offered
only to show that Renfroe could tell their voices apart, and
Detective Matute was a percipient witness to Renfroe‘s
identification of James and could testify to the fact of her
identification. This contention is disingenuous.
Although Renfroe did not testify regarding the voice
identification, she did testify about her earlier identification
of first Jonathan and then James in photographic lineups.
At trial she was at first unable to say which of the twins was
the man with the knife, and after a lunch break said she had
gotten a better look, and identified James. The only purpose
of the voice identification evidence was to prove that Renfroe
recognized James‘s voice and not Jonathan‘s and that James
was therefore the man who held the knife to her throat.
There is no meaningful distinction between Renfroe saying
that she recognized James‘s voice and not Jonathan‘s, and
Renfroe saying James, not Jonathan, was the man who held
the knife to her throat. Further, Detective Matute testified
not that she said they sounded different, but that when she
heard James‘s voice, Renfroe said ―he was the guy that got in
the back seat and put the knife to her throat.‖ Detective
Matute‘s testimony was hearsay, offered for the truth that
Renfroe identified the voice of James, rather than the voice
of Jonathan, as belonging to the man with the knife.
The erroneous admission of the hearsay evidence that
Renfroe had identified James as the man with the knife by
55
listening to his voice was clearly prejudicial to James‘s
defense. Renfroe initially identified Jonathan in the photo
lineup, and when she later identified James, she said they
looked alike and she was not sure which of them held the
knife to her neck. At trial, she was unable to choose between
Jonathan and James at first, and only chose James after a
lunch break. The men had their faces partially covered
during the robbery, and Renfroe‘s inability to choose
between identical twins, and her hesitation even at trial, is
understandable.
Only Detective Matute‘s testimony provided an
immediate and unequivocal identification of James. The
importance of Detective Matute‘s testimony was highlighted
by the instructions given by the trial court to impress upon
the jury that they could not use the testimony against Jarrod
and Alphonso, whose voices Renfroe also recognized. Three
times, the jury heard the court instruct it to use the
testimony only to distinguish between James and Jonathan.
The sole reason for the jury to distinguish between them was
to choose which one had committed the kidnapping in
count 15.
It is reasonably possible that the jury would have
acquitted James if it had not heard Detective Matute testify
that Renfroe immediately and emotionally recognized
James‘s voice as the voice of the man who held the knife to
her throat. Renfroe never conclusively identified James in
photo lineups, and identified him in court only after first
saying she could not tell whether the man with the knife was
56
Jonathan or James. Without Detective Matute‘s testimony,
it is reasonably possible that the jury would not have
concluded beyond a reasonable doubt that James was the
man with the knife.
We must reverse James‘s conviction on count 15.6
Jarrod and Alphonso argue that the admission of the
voice identification evidence was also reversible error as to
each of them. We disagree. The same instructions that
repeatedly told the jury that they could use the evidence to
distinguish between James and Jonathan explicitly forbade
them to use the voice identifications against Jarrod and
Alphonso. Assuming as we must that the jury followed those
instructions, we see no reasonable possibility that the result
as to Jarrod and Alphonso would have been different if the
jury had not heard the evidence. (People v. Seumanu (2015)
61 Cal.4th 1293, 1336 (Seumanu); People v. Watson (1956)
46 Cal.2d 818, 836.)
IV. Prosecutorial error or misconduct
All the appellants argue that prosecutorial error and
misconduct deprived them of a fair trial, citing multiple
examples regarding the prosecutor‘s examination of
witnesses, her inadvertent placement of her notes on the
overhead projector, and her arguments in opening and
closing. We address each in turn and then collectively,
6
We therefore need not consider James‘s argument
that the trial court erred when it denied his request to allow
a voice demonstration by James and Jonathan be played for
the jury.
57
keeping in mind: ― ‗ ―A prosecutor‘s conduct violates the
Fourteenth Amendment to the federal Constitution when it
infects the trial with such unfairness as to make the
conviction a denial of due process. Conduct by a prosecutor
that does not render a criminal trial fundamentally unfair is
prosecutorial misconduct under state law only if it involves
the use of deceptive or reprehensible methods to attempt to
persuade either the trial court or the jury.‖ ‘ ‖ (Seumanu,
supra, 61 Cal.4th at pp. 1331–1332.) The prosecutor‘s
conduct need not be intentional to constitute reversible
error. (People v. Hill (1998) 17 Cal.4th 800, 822–823.)
―[T]he rule requiring claims of prosecutorial
misconduct be preserved for appellate review by a timely
and specific objection and request for admonition is well
established [citations]. (Seumanu, supra, 61 Cal.4th at
pp. 1340–1341.) ― ‗The reason for this rule, of course, is that
―the trial court should be given an opportunity to correct the
abuse and thus, if possible, prevent by suitable instructions
the harmful effect upon the minds of the jury.‖ ‘ ‖ (Id. at
p. 1341.)
A. Cross-examination of Jarrod
Jarrod testified that the fraternity backpack in
evidence (found after the June 19 robbery) was not like the
one he would carry, because it came from a sponsored event.
During cross-examination, the prosecutor asked him
whether the backpack was his, and he said it was not. She
then asked, ―Why would your wife tell Detective Collier after
seeing a photo of that backpack that that backpack was
58
yours?‖ Jarrod‘s counsel made a hearsay objection which the
court sustained, telling the prosecutor to rephrase the
question. She asked whether his wife had seen the backpack
and he answered, ―She‘s seen a backpack, yes ma‘am.‖ She
then asked, ―Can you explain why your wife would tell
Detective Collier that that backpack that is . . . ,‖ and
Jarrod‘s counsel asked to approach. At sidebar, after
argument, the court again ruled the statement by Jarrod‘s
wife (which appeared in the police report) was hearsay.
Asking questions that the prosecutor knows call for
inadmissible evidence can be misconduct. (Seumanu, supra,
61 Cal.4th at pp. 1348–1349.) As Jarrod‘s wife declined a
defense request to testify at trial, her statement to
Detective Collier was inadmissible as hearsay offered for its
truth, for the purpose of discrediting Jarrod‘s testimony that
he was not the owner of the backpack. Even assuming the
prosecutor committed misconduct by phrasing the question
as she did, Jarrod denied it was his backpack, and the
prosecutor did not mention the backpack after the court
sustained the objection to her rephrased question. The court
instructed the jury not to guess what the answer might have
been to a question if an objection was sustained, and also:
―Do not assume to be true any insinuation suggested by a
question asked a witness. A question is not evidence and
may be considered only as it helps you to understand the
answer.‖ We must assume the jury followed this instruction,
and therefore the prosecutor‘s question was not prejudicial.
(Id. at p. 1349.)
59
The prosecutor also asked Jarrod whether his wife had
traded in the Camry for a black Ford Escape and he
answered yes. The prosecutor then asked, ―Your black Ford
Escape was seen at the crime scene on August 29th [counts
23 and 24]. Did you loan your car out then?‖ Jarrod began
to answer that the car was not seen that night, and the court
interrupted to say, ―No, no. You can‘t argue. That
question—the objection is it‘s argumentative.‖ The
prosecutor continued, ―Mr. Williams somebody took down a
license plate of 6 GBC 150 or 2 GBC 150. Is it just a
coincidence. . . .‖ Jarrod‘s counsel objected that the question
was argumentative and misstated the testimony. The court
stated, ―Here is the deal. Let‘s keep it simple. 6 GBC 150,
are either of those two license plates to a black Ford Escape
owned by you?‖ Jarrod answered, ―Absolutely not.‖ The
prosecutor asked, ―Is 6 GBC 159 yours?‖ Jarrod answered,
―That‘s my wife‘s.‖ Counsel asked to approach and the court
responded, ―No, we just did. Next.‖ Counsel renewed his
objection after Jarrod‘s testimony ended, arguing that the
prosecutor referred to ―my client‘s car having a 6 GBGC 150
or 2 GBC 150 license plate‖ although when those numbers
were run they came back to a black Jeep SUV. The
prosecutor responded that the 6 GBC 159 license number of
the black Ford Escape was very similar: ―The witness got it
almost right, and that is what I was referring to.‖ The court
construed this and another objection (to the publication of
the prosecutor‘s notes, addressed below) as a motion for
mistrial, and denied the motion.
60
Jarrod argues that the prosecutor knew that the
license plate numbers ending in 150 had actually been run
and came back to a black Jeep SUV, and committed
misconduct in referring to those numbers in her question.
We disagree. The prosecutor explained that had she been
allowed to finish her question, she would have pointed out
that the witness had testified to a number very similar to
the license number of the black Ford Escape. She argued in
closing that the Ford Escape‘s license number was close to
the number given by the witness. Further, even if
misconduct occurred, Jarrod alone was charged in counts 23
and 24 related to the August 29 attempted robbery, and the
jury acquitted him on those counts. Clearly, no prejudice
occurred.
B. Exposing notes to the jury
At sidebar after Jarrod‘s testimony, his counsel told the
court, ―The district attorney published to the jury via the
ELMO,7 her notes, which were typed. These include the
sentencing ranges for all these crimes. They include the
other information that was not admitted into testimony.
They include a telephone number under my name, which
belonged to one of the recently retired former heads of the
district attorney‘s office.‖ Alphonso‘s counsel had advised
him of the problem, and Jarrod‘s counsel immediately picked
7
It appears that Jarrod‘s counsel referred to the
prosecutor‘s projection onto a screen using an ELMO brand
document camera and projection system. (People v. Centeno
(2014) 60 Cal.4th 659, 665, fn.4.)
61
it up. He was ―beyond shocked.‖ He added, ―It‘s not an error
that one just does in a brain-dead state.‖ James‘s attorney
stated that the notes were incriminatory and concerned
―pings. ‖ The prosecutor responded that if she accidentally
put her notes on the projector, ―none of us saw it,‖ and ―I
don‘t know what was on there. It‘s all folded up. It‘s been in
my little purse folded and I was using it to look up the date
of the license plate that was found by the witness. If
anybody saw it on the defense, they should have told us.‖
She added, ―It was inadvertent.‖ The trial court responded
that it had looked at the paper. The telephone numbers
were for the defendants‘ counsel and would not make a
difference if the jury saw them. The summary was not
notes, but ―a grid of what are the dates and the locations and
the charge‖ which the lawyers might read as sentencing
ranges but the jury would not know. ―This is not evidence,
and I will give the instruction of what evidence is. This will
not go before the jury. I‘ll give the instruction that evidence
is something that is marked as evidence.‖ The court denied
the motion for mistrial, told counsel to be more careful
around the ELMO, and said, ―I don‘t find anything unfairly
prejudicial or that sort. The jury would have alerted the
court.‖ ―It‘s innocuous.‖
We granted James‘s motion to settle the record. The
trial court held a hearing, and a copy of the page placed on
the ELMO is in the augmented record on appeal. The page
is a grid organized by six counts and summarizing the
evidence for each with ―STRENGTHS 1-3 (weak)‖ at the top.
62
No sentencing information, and no telephone numbers
(except for a fax number at the top of the page), appear.
Even if the prosecutor‘s inadvertent placement of the sheet
on the ELMO was error or misconduct, no prejudice resulted
as the jury saw no inadmissible evidence.
C. Opening and closing argument
1. Puzzle analogy
In her opening argument, the prosecutor began, ―A
trial is like a jigsaw puzzle. A jigsaw puzzle, let‘s say an
Eiffel Tower . . . . [¶] The trial will be putting the pieces
together. When you have a jigsaw puzzle, you have a box of
pieces. They don‘t go in any particular order. You might
look for blue sky to start, and you will see green grass and
put that in, and then you go get the blue sky in order. We
have over 50 witnesses. We have 29 counts. We have 23
victims. They all can‘t come in a chronological order. . . . [¶]
Once you get all the pieces of a puzzle in about two weeks or
so . . . you‘ll be able to see if it is the Eiffel Tower. You will
see the Eiffel Tower even though some pieces might be
missing just like from a jigsaw puzzle. You get past two-
thirds of it. You say it is the Eiffel Tower. You know what it
is. You will know what it is when you get to the end of trial.‖
She concluded, ―Ladies and gentlemen, you‘re going to get
pieces of this puzzle in just a minute. You will put them
together at the end. When the puzzle comes to light. You‘ll
see not only the Eiffel Tower, but you will see all 29 counts
charged to each of these defendants as listed in your grid.
That‘s the evidence upon which you will deliberate.‖ In
63
closing, the prosecutor argued, ―You have at this point all
the pieces to the puzzle. You can see that Eiffel Tower.
Remember I talked about a jigsaw puzzle four weeks ago.
When you [are] making a jigsaw puzzle, you may not have
all the pieces, and there‘s even an instruction you heard
yesterday that not all the evidence or witnesses need to come
forward, as long as you can see what you have got and you
have an Eiffel Tower here.‖ At no time did any defense
counsel object.
The appellants now contend that the prosecutor
committed misconduct in this portion of the opening and
closing arguments by telling the jury that it could find
defendants guilty beyond a reasonable doubt if only two-
thirds of the evidence supported guilt.
The failure to object forfeited the claim that the
prosecutor‘s argument was improper. ―As a general rule,
‗ ―[a] defendant may not complain on appeal of prosecutorial
misconduct unless in a timely fashion, and on the same
ground, the defendant objected to the action and also
requested that the jury be admonished to disregard the
perceived impropriety.‖ ‘ ‖ (People v. Centeno, supra, 60
Cal.App.4th at p. 674.) Counsel‘s silence will be excused
only if an objection would have been futile, or if an
admonition would not have cured the harm caused by the
prosecutor‘s statement. (Id. at p. 663.) ―A prosecutor‘s
misstatements of law are generally curable by an admonition
from the court. [Citation.] . . . [citation]. Nothing in this
record indicates that an objection would have been futile.
64
Nor was the prosecutor‘s argument so extreme or pervasive
that a prompt objection and admonition would not have
cured the harm.‖ (Id. at p. 674.) A defense objection, if
sustained, would have given the trial court the opportunity
to correct any misunderstanding of the burden of proof the
prosecutor may have caused by using the jigsaw puzzle
analogy. Defendants have forfeited the issue.
James argues that trial counsel‘s failure to object
constituted ineffective assistance of counsel. To prevail, he
must demonstrate that counsel‘s performance fell below an
objective standard of reasonableness, and that there is a
reasonable possibility that but for the counsel‘s errors, the
result would have been different. (People v. Rodrigues
(1994) 8 Cal.4th 1060, 1126.) ―[D]eciding whether to object
is inherently tactical, and the failure to object will rarely
establish ineffective assistance.‖ (People v. Hillhouse (2002)
27 Cal.4th 469, 502.) Further, here the trial court gave
proper instructions defining reasonable doubt. We presume
the jury followed those instructions, and that no prejudice
resulted.
Our Supreme Court has emphasized that the use of
―innovative but ill-fated attempts to explain the reasonable
doubt standard‖ by analogies or diagrams presents
difficulties, and courts have discouraged their use. (People v.
Centeno, supra, 60 Cal.4th at p. 667.) For example, when
the prosecutor used a slide show to show a puzzle that, after
six of eight pieces were in place, was easily recognizable as
the Statue of Liberty, the presentation misrepresented the
65
standard of proof by using an iconic image, which invited the
jury to jump to a conclusion long before six pieces were in
place. (Id. at p. 668.) Although the defendants objected and
the error was harmless, the appellate court discouraged the
use of visual aids. (Ibid.) The same impropriety arose when
the prosecutor used an image of the shape of California
(again, found harmless when the court admonished the jury
after objection). ―The use of an iconic image like the shape of
California or the Statue of Liberty, unrelated to the facts of
the case, is a flawed way to demonstrate the process of
proving guilt beyond a reasonable doubt. These types of
images necessarily draw on the jurors‘ own knowledge
rather than evidence presented at trial. They are
immediately recognizable and irrefutable.‖ (Id. at p. 669.) It
is ―misleading to analogize a jury‘s task to solving a picture
puzzle depicting an actual and familiar object unrelated to
the evidence.‖ (Id. at p. 670.)
Although the prosecutor here did not project a graphic
image of the Eiffel Tower, and did not tell the jury she was
defining reasonable doubt, her verbal description asked the
jurors to imagine a similarly iconic image which risked
misleading the jury about the standard of proof. Although
the failure to object forfeited the issue, we strongly
discourage such practice.
2. False argument
In closing, James‘s counsel stated, ―So did he do that?
Yes,‖ regarding the July 31 incident (for which James was
arrested, and was charged with four counts of robbery), and
66
argued that the issue was whether the prosecution had
proven kidnapping for robbery. James‘s counsel also argued
that the jury could not jump to the conclusion that James
was involved in the other robberies. Jonathan‘s counsel
stated, ―[A]cknowledging and respecting your collective
intelligence and street smarts, Mr. Jonathan Wilson will not
dispute the charges of robbery in this case. Not whatsoever,‖
and proceeded to argue that no kidnapping occurred during
the July 31 robbery (the sole incident charged against
Jonathan, with four counts of robbery). Alphonso‘s counsel
stated: ―I‘m not going to sit here and insult your intelligence
and say these aren‘t robberies,‖ but challenged the evidence
identifying Alphonso. Counsel for two of the four
defendants, James and Jonathan, conceded that their
respective clients were guilty of robbery on July 31.
In her rebuttal, the prosecutor stated, ―Let‘s go to
James. Okay. Okay. You notice the defense attorneys have
all admitted that they are guilty of robbery. So that‘s 18
counts. You‘re done. You don‘t have to spend much time on
that . . . .‖ The defendants moved for mistrial regarding this
―active misrepresentation of . . . all those positions of all
these defendants.‖ The trial court denied the motion.
―[W]ith respect to . . . [¶] . . . the misrepresentation of not
contesting to certain facts, you know that is the art of
advocacy. What one person may think is contested, another
person may think is conceding. . . . [The prosecutor] did
that, and I think that‘s fair argument.‖
67
The prosecutor‘s argument, made after she referred to
James, overreached by stating ―all‖ defense attorneys
admitted their clients were guilty of robbery and that 18
counts were therefore easy for the jury. In light of the entire
lengthy closing arguments, however, we see no possibility
that the statement justified a mistrial, given that two
defendants, James and Jonathan, each admitted to four
counts of robbery, and the prosecutor also argued forcefully
that the identifications and other evidence placed all the
defendants at the scenes of all the robberies charged.
3. Impugning the integrity of defense
counsel
In closing argument, the prosecutor pointed out that
Jarrod had testified he attended Bible study on Wednesday
nights while the evidence showed he was at work, adding:
―So whatever they said and whatever their lawyers argue in
a few minutes take it with a grain of salt.‖ The prosecutor
referenced a jury instruction that a witness who testified
falsely should be distrusted in all of their testimony.
Jarrod‘s counsel objected and asked for a mistrial, and
all counsel joined. The prosecutor stated that in saying
―grain of salt‖ she had not meant to infer that the defense
lawyers were not to be believed. The trial court denied the
motion for mistrial, stating that ―[t]he comment about liars
was as to your client Jarrod Williams,‖ and the comments of
lawyers were not evidence.
We agree that in context the comment referred to
Jarrod and so did not tell the jury that the lawyers were
68
liars, and it was not an abuse of discretion to deny the
motion for mistrial. While consistent denigration of defense
counsel is improper, the prosecutor‘s single remark was
―clearly recognizable as an advocate‘s hyperbole‖ regarding
discrepancies in Jarrod‘s testimony and was a small part of a
very lengthy argument. Therefore, it is not reasonably
probable the comment influenced the result. (People v.
Sandoval (1992) 4 Cal.4th 155, 184.)
4. Shifting the burden of proof
At the end of her rebuttal argument, the prosecutor
claimed that defense counsel did not have the facts or the
law on their side and instead ―just argued. The defense
never came up with one fact that disproved they are not part
of these robbery kidnappings.‖ Defense counsel did not
include this comment in their motion for mistrial. This
failure to object forfeits defendants‘ claim on appeal that the
prosecutor told the jury that they had to offer evidence to
disprove their guilt, rather than properly allocating the
burden of proof to the prosecution.
The prosecutor‘s statement could, however, be
considered a misstatement of the law, implying that she did
not have the burden of proving every element of all the
charged crimes by a reasonable doubt, and insinuating that
the defense had to produce some affirmative evidence to
raise a reasonable doubt in the jury‘s mind. (People v. Hill
(1998) 17 Cal.4th 800, 831–832.) ―On the other hand, [the
prosecutor] may . . . have been exhorting the jury to consider
the evidence presented, and not attorney argument, before
69
making up its mind.‖ (Id. at p. 832.) The jury instructions
properly stated that that the burden of proof was on the
prosecutor. Because a timely objection and admonition
would have cured any remaining prejudicial confusion, the
failure to object waives a claim of misconduct. (People v.
Gonzalez (1990) 51 Cal.3d 1179, 1215.)
James argues that counsel‘s failure to object to the
prosecutor‘s statement constituted ineffective assistance.
We presume, however, that the jury followed the court‘s
instructions, which properly explained that the prosecution
had the burden of proof. Even if the failure to object to the
prosecutor‘s statement fell below an objective standard of
reasonableness, there is no reasonable possibility that but
for counsel‘s silence, the result would have been different.
(People v. Rodrigues, supra, 8 Cal.4th at 1126.)
5. Misstating the law of aggravated
kidnapping
The court instructed the jury with CALJIC No. 9.50.1,
which stated that to determine whether a defendant moved a
victim a substantial distance and substantially increased the
risk of harm, the jury was to consider the scope and nature
of the movement and its environment, including whether the
movement decreased the likelihood of detention, decreased
the likelihood of detection, increased the danger inherent in
foreseeable attempts to escape, or enhanced the opportunity
to commit other crimes. The court also gave CALJIC
No. 9.54, which stated that brief movements to facilitate the
crime of robbery were merely incidental to the robbery. In
70
closing, the prosecutor put on the board what she
represented to be instructions, including cited cases that
removing a victim out of public view could be substantial
movement that increased the risk of harm, even if it was
from the front to the back of the store, and if the victim
might less easily sound an alarm. Counsel objected that the
cases were inapplicable, as they involved kidnapping for
rape. The trial court denied the defense motion for mistrial
on this basis: ―If there is a discrepancy between the law that
is given by Ms. Rose and law given by the court, it is the law
by the court that governs. And I have instructed the jury on
that.‖
The cited cases in the description shown to the jury did
involve kidnapping to commit rape, not robbery. As we have
stated above, while a rape victim is more at risk and more
vulnerable to attack if concealed from public view, the same
is not necessarily true for a robbery victim. (People v.
Hoard, supra, 103 Cal.App.4th at p. 607.) ―Where a
defendant drags a victim to another place, and then
attempts a rape, the jury may reasonably infer that the
movement was neither part of nor necessary to the rape,‖
and that the movement was therefore was not incidental to
the rape, justifying a conviction of aggravated kidnapping.
(People v. Shadden (2001) 93 Cal.App.4th 164, 169.) By
contrast (as we also stated above), in the case of a robbery,
movement from the front of the store to the back area away
from public view cannot elevate robbery to aggravated
kidnapping where the thresholds crossed (as in the robberies
71
in this case) separated the defendants from the property.
(People v. Washington, supra, 127 Cal.App.4th at p. 300.)
The prosecutor displayed to the jury descriptions of
kidnapping for robbery that, based as they were on cases
involving kidnapping for rape, misstated what movement
would be substantial enough to increase the risk of harm to
the victim.
The prosecutor‘s argument misstated the relevant law
by substituting the standard for kidnapping for rape, under
which a jury would be more likely to convict the defendants
for movements like the ones in the robberies charged here,
from the fronts to the backs of the stores, to a place out of
public view. The jury did convict Jarrod, James, and
Jonathan of kidnapping for robbery, and we have reversed
those convictions, concluding that the evidence was
insufficient under the correct definition of the crime. The
difference between the two standards mattered in this case,
and the trial court should have admonished the jury that the
prosecutor had misstated the law of aggravated kidnapping
for robbery. Nevertheless, the trial court gave the jury
correct instructions on kidnapping for robbery. Further, we
reverse the aggravated robbery convictions for insufficient
evidence under the proper standard.
The conduct by the prosecutor which the defendants
preserved for appeal by properly objecting, whether
considered individually or cumulatively, did not deny the
defendants a fair trial.
72
V. Judicial misconduct
Defendants, citing multiple examples, argue the trial
court committed misconduct by acting as an advocate for the
prosecution when the court posed its own questions to
witnesses, citing multiple examples. We describe each
instance in chronological order, and then consider whether
the trial court‘s questioning improperly conveyed that it was
partial to the prosecution.
A. Trial court statements
1. Cross-examination of Magana
Magana testified that on the morning of the Willow
Street/Long Beach robbery on June 19 he saw a green
Camry circling the parking lot, driven by a man who looked
like the rapper Drake, and identified the driver as Alphonso.
On cross-examination, Alphonso‘s counsel asked, ―This
rapper Drake, he‘s actually light-skinned, right?‖ The
prosecutor objected, and the court stated, ―That is a matter
of perspective. Compared to you, he would be dark.‖
Counsel continued, ―But compared to the defendants here,
compared to Mr. Wilson over there on the left wearing the
burgundy shirt, he‘s lighter skinned than that?‖ The
prosecutor again objected that the question was not relevant,
and counsel responded that it went to identification; the
prosecutor pointed out that it was two years later. The court
intervened, ―Let‘s cut to the chase. Okay. [¶] Did the guy
that looked like Drake—okay. Was he—did he look like an
African-American man?‖ Magana answered yes. The court
continued, ―Kind of like the same color, same haircut, same
73
features?‖ Magana answered, ―He even had—I don‘t know
what you would say, a goatee.‖ The court said, ―There you
go, a goatee. That‘s the description that you get. We‘re not
going to go through the—‖ Counsel went on, ―Does Drake
have a goatee? Is that what you said?‖ Magana answered,
―Sometimes.‖
Alphonso‘s counsel asked Magana if during his earlier
identification of exhibit 4 as the knife used in the robbery, he
had recognized the knife by the holes in its handle, and he
said yes. Counsel asked, ―You see on the knife there where
it says Smith and Wesson?‖ The court told counsel ―[b]efore
you do that, foundation,‖ and asked if Magana remembered
seeing a Smith and Wesson brand name. Counsel said,
―That‘s what I was getting to if you let me,‖ and then asked
Magana whether he remembered seeing the brand name on
the knife blade. The prosecutor objected that Magana had
said he did not see it, and counsel responded, ―That‘s what I
said.‖ The court admonished the prosecutor not to make a
speaking objection, and told counsel to keep the question
simple. The court asked Magana, ―When the knife was
pointed to you, were you looking at the brand name?‖ and
Magana answered, ―No.‖ Counsel asked Magana if he
should have seen the brand name. The court sustained an
objection to the question, and asked Magana how long he
observed the knife pointed at him. Magana answered, ―Not
very long, your honor. I was scared.‖
74
2. Cross-examination of Detective Matute
During Alphonso‘s counsel‘s cross-examination of
Detective Matute regarding Renfroe‘s voice identification,
the court intervened (―[l]et me clear this up‖), and asked a
series of questions to clarify when the voice identification
had taken place and how Detective Matute had conducted
the identifications. The questions resulted in testimony that
Renfroe had identified Alphonso, Jarrod‘s, and James‘s
voices and had not identified Jonathan‘s, and the court then
concluded: ―There you go. [¶] Next.‖ When counsel
established that Detective Matute played only one voice
recording at a time, and then asked Detective Matute if
showing a victim one photograph in a photographic lineup
would be unduly suggestive, the court reminded counsel that
a photographic lineup was not similar to a voice
identification and told counsel to move on.
When counsel for James cross-examined Matute about
showing Renfroe two six-pack photographic identification to
distinguish between Jonathan and James after the voice
identification, counsel asked whether Detective Matute could
have arranged a live lineup and the detective said that was
an option. The court asked, ―[D]id any of the attorneys,
including the defense attorneys, ask for a live line-up in this
case?‖ Detective Matute answered that they did not. The
court continued to ask whether Detective Matute, the
prosecutor, or any of the defense attorneys could have asked
for a lineup, and whether any of them did, and Detective
Matute answered no.
75
James‘s counsel moved for a mistrial joined by all
defense counsel, arguing that asking whether the defense
had asked for a live lineup of James and Jonathan could lead
the jury to think ―[p]erhaps the judge is taking sides.‖ The
trial court denied the motion, stating that the questions
merely clarified that anyone, including the prosecution,
could ask for a live lineup. ―If we‘re searching for the truth
in a trial, it is not gamesmanship; Oh, he didn‘t ask for a
line-up; therefore, it is this person‘s fault or that person‘s
fault. [¶] Everyone is entitled to ask for a line-up. So that
was clarified to the jury . . . . None of them asked for one.‖
3. Examination of Dr. Eisen
Alphonso‘s counsel questioned Dr. Eisen, the defense
expert on how memory works, about a person‘s ability to
make a cross-racial identification. The court asked, ―Does
that really work, doc, cross-racial?‖ Dr. Eisen responded
that it was more difficult to differentiate faces from a
different race. The court asked whether ―it‘s like saying that
all Asians look alike,‖ and Dr. Eisen agreed. The trial court
then said, ―Let me give you the challenge,‖ and asked that if
he was from all-white ―Podunk, Alabama,‖ and saw ―one
Asian dude doing something. . . . Do all Asians look alike to
all people that have not seen an Asian?‖ Dr. Eisen
responded that the identification should not be difficult in
that situation. The court asked whether cross-racial
difficulties applied where ―[w]e are the melting pot of the
world,‖ and Dr. Eisen answered that he saw cross-race
76
effects in his laboratory at Cal State Los Angeles: ―We get
cross-racial effects, that‘s not as powerful as Podunk.‖
On cross-examination by James‘s counsel, Dr. Eisen
discussed research that once a witness identified a suspect‘s
photograph, it was difficult later to back off the
identification. The court asked, ―[If] somebody makes
identification and subsequently says I‘m not so sure and
reaffirms that identification subsequent, does that make the
identification stronger, weaker or the same?‖ Dr. Eisen
answered, ―Actually, it‘s all just data.‖
B. Analysis
Appellants argue that the trial court‘s manner when it
participated in, and initiated, the questioning of witnesses
conveyed to the jury that it was aligned with the
prosecution, and minimized the credibility of the defense.
A trial court may control the examination of witnesses
with the goal of ascertaining the truth, and may examine
witnesses on its own motion. (§ 1044; Evid. Code, §§ 765,
subd. (a), 775.) ― ‗[I]t is not merely the right but the duty of
a trial judge to see that the evidence is fully developed before
the trier of fact and to assure that ambiguities and conflicts
in the evidence are resolved insofar as possible.‘ ‖ (People v.
Mayfield (1997) 14 Cal.4th 668, 739.) The court has the
power and the duty to question witnesses in an effort to elicit
material facts or to clarify confusing testimony. (People v.
Cook (2006) 39 Cal.4th 566, 597.) Nevertheless, jurors rely
on the fairness of judges, and if the trial court makes
discourteous and disparaging remarks to defense counsel
77
and witnesses ― ‗so as to discredit the defense or create the
impression that it is allying itself with the prosecution,‘ ‖ the
resulting lack of judicial fairness requires a new trial.
(People v. Sturm (2006) 37 Cal.4th 1218, 1233.)
Failure to object to the trial court‘s remarks ordinarily
forfeits a claim of judicial misconduct on appeal, unless
objection could not have cured the prejudice or would have
been futile. (People v. Houston (2012) 54 Cal.4th 1186,
1220.) Here, the sole objection made was the motion for
mistrial after the cross-examination of Detective Matute.
While a defendant‘s failure to object will not forfeit a claim of
misconduct if the hostility of the court is evident, or the
court has made extensive, numerous disparaging remarks
(ibid.), such is not the case here.
During defense cross-examination of Detective Matute,
the court intervened to clarify that no party requested a live
lineup for Renfroe to identify her kidnappers. It was not an
abuse of discretion to deny a motion for mistrial based on
that objected-to conduct by the court.
Further, if we were to consider all the court‘s remarks
on the merits, the trial court did not commit misconduct.
While the court actively managed the testimony and was
occasionally abrupt and impatient with defense counsel, it
did not disparage counsel. Our reading of the trial
transcript shows that the court also repeatedly admonished
the prosecutor to ―cut to the chase‖ and ―move on,‖ and did
not hesitate to intervene in questioning to clarify witness
testimony favorable to the defense. In managing five
78
defense counsel and a prosecutor over the long trial, the
court‘s interventions and questioning were not so extreme
and one-sided as to convey to the jury that the court was
partial to the prosecution. The trial court did not ―deviate[]
so far from its duty to conduct [the] jury trial in a fair and
impartial manner as to require reversal of the conviction.‖
(People v. Santana (2000) 80 Cal.App.4th 1194, 1209.)
We have found that insufficient evidence supports a
number of the defendants‘ convictions for aggravated
kidnapping and kidnapping. As to their other claims of
error, we see no cumulative error sufficient to require us to
reverse the convictions that remain.
VI. Sentencing issues
A. False imprisonment and section 654
Jarrod, Alphonso, and James argue that the trial court
erred in refusing to stay their sentences for false
imprisonment under section 654, as the false imprisonment
in each count (counts 2, 7, 10, 13, 16, 18, and 20) was
indivisible from and part of the robberies and pursuant to a
single objective.
Alphonso argued in his sentencing memorandum that
section 654 applied. At sentencing, the trial court did not
address the section 654 issue, imposing eight months for
each false imprisonment conviction, and running each such
sentence consecutive to the second degree robbery
convictions. Nevertheless, where there is no express
discussion of section 654 on the record, a finding that the
79
crimes were divisible is inherent in the judgment. (People v.
Latimer (1993) 5 Cal.4th 1203, 1208.)
Section 654 ―generally precludes multiple punishments
for a single physical act that violates different provisions of
law [citation] as well as multiple punishments for an
indivisible course of conduct that violates more than one
criminal statute.‖ (People v. Newman (2015) 238
Cal.App.4th 103, 111–112.) Section 654 does not bar
multiple punishments for an act of violence against multiple
victims, or if during a course of conduct, ―the defendant
‗ ―entertained multiple criminal objectives which were
independent of and not merely incidental to each other.‖ ‘
[Citation.] The application of this second exception
‗ ― ‗depends on the intent and objective of the actor. If all of
the offenses were incident to one objective, the defendant
may be punished for any one of such offenses but not for
more than one.‘ ‖ ‘ ‖ (Id. at p. 112; Neal v. State of California
(1960) 55 Cal.2d 11, 19.)
Section 654 bars multiple punishment for separate
offenses arising out of a single occurrence where all of the
offenses were incident to one objective. Here, the false
imprisonment and the robberies of each victim in counts 2, 7,
10, 13, 16, 18, and 20 were an indivisible course of conduct
committed ―pursuant to a single intent or objective,‖ that is,
to rob the victims of the cell phones, cash, and other
merchandise in the back rooms of the stores. (People v.
Beamon (1973) 8 Cal.3d 625, 639.) In People v. Newman,
supra, 238 Cal.App.4th 103, the false imprisonment charges
80
were based on the robber‘s turning and pointing his gun at
customers trying to leave the restaurant and yelling that no
one should move, which constituted a separate criminal
objective from the robbery of the restaurant cashier and
justified separate punishment. (Id. at pp. 106, 112–113.) In
this case, in count 2, Jarrod‘s fellow robber ordered
Monique H. to lie face down next to Prado in the back room,
from which the men took phones and left the store. In
count 7, a robber forced Magana to the back room, where
they made him lie face down while they took merchandise
from the cage. In count 10, robbers forced Johnson to the
back room, where they made him open boxes of merchandise,
took merchandise from the cage, and commanded him to lie
down and count to 100. In count 13, robbers shoved Doan to
the back room and repeatedly demanded a combination
which he did not have; they made Doan kneel and held his
collar while they stole merchandise from the cage, and then
told him to lie face down and count to 100. In counts 16, 18,
and 20, robbers including Alphonso pushed Gray, Garcia,
and Chavarria to the break room and ordered them to lie
down and count to 100 while the robbers took phones and
cash from the safes in the vault and robbed Garcia of his
wallet and $800. The false imprisonments were part of an
indivisible course of conduct with the objective of robbery of
merchandise from the backs of the store.
Accordingly, the sentences for the false imprisonment
convictions on count 2 (Jarrod), count 7 (Alphonso), count 10
(Jarrod, Alphonso, and James), count 13 (Alphonso), and
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counts 16, 18, and 20 (Alphonso) must be stayed pursuant to
section 654.
B. Restitution amount
Alphonso and James contend that the trial court erred
in ordering them to pay restitution related to the Riverside
Diamond Wireless robbery on April 25 (counts 2 and 3) and
the Fontana Diamond Wireless robbery on May 8 (counts 4,
5, and 6). The information did not charge Alphonso or
James in count 2; James was not charged in counts 4, 5, and
6, and the jury acquitted Alphonso on those counts.
At his sentencing hearing, Alphonso stipulated to a
total amount of restitution after reviewing with his counsel
some paperwork provided by the prosecutor. The paperwork
does not appear in the record. The trial court ordered
Alphonso to pay total restitution of $140,556.84, which
included $43,416.09 to Verizon Wireless and $1,179.77 to
Diamond Wireless. At James‘s sentencing hearing, the court
asked, ―Is the defendant stipulating to restitution?‖ and
counsel answered, ―Yes.‖ The court then ordered James to
pay ―Verizon Wireless for the April 25th, robbery and
kidnapping $43,416.09.8 [¶] Diamond Wireless for the
May 8th, robbery and kidnapping $1.179.77,‖ along with
8
Respondent acknowledges that the April 25 robbery
occurred not at a Verizon store but at the Diamond Wireless
in Riverside. On remand, the trial court must correct the
restitution order to reflect the correct recipient of restitution
for the April 25 robbery.
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other amounts, for the same total restitution amount of
$140,556.84.
We quickly dispose of respondent‘s argument that
Alphonso and James forfeited any objection to restitution by
stipulating to the restitution amount. ―Factual issues may
be subject to the waiver rule, but an objection may be raised
for the first time on appeal where it concerns an
‗unauthorized‘ sentence, i.e., one that ‗could not lawfully be
imposed under any circumstance in the particular case.‘ ‖
(People v. Percelle (2005) 126 Cal.App.4th 164, 179.) They
have not forfeited the purely legal issue whether the court
imposed the restitution order in excess of its statutory
authority. (Ibid.)
We review the trial court‘s order of restitution for an
abuse of discretion. (People v. Foalima (2015) 239
Cal.App.4th 1376, 1395.) The trial court abused its
discretion when it ordered Alphonso and James to pay
restitution for crimes with which they were not charged or
crimes of which they were acquitted. ―[S]ection
1202.4 . . . limit[s] restitution awards to those losses arising
out of the criminal activity that formed the basis of the
conviction.‖ (People v. Woods (2008) 161 Cal.App.4th 1045,
1049, italics added.) Section 1202.4, subdivision (f) provides
for restitution when a victim suffered economic loss ― ‗ ―as a
result of the defendant’s criminal conduct. . . .‖ [T]he term
―criminal conduct‖ as used in subdivision (f) means the
criminal conduct for which the defendant has been
convicted.‘ ‖ (Ibid.) A restitution order is not authorized if
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the defendant‘s relationship to the victim‘s loss is through a
crime of which the jury acquitted the defendant, which is
equally true when the defendant is not charged with the
crime. (Id. at p. 1050, fn. 3.) Respondent cites People v.
Carbajal (1995) 10 Cal.4th 1114, but that case addresses
restitution as a condition of probation, and courts have ―a
much freer hand‖ to impose restitution as a probation
condition: ―The scope of the court‘s duty—and power—to
order restitution turns on whether the court imposes
judgment or instead places the defendant on probation.
When judgment is imposed and the defendant sentenced to a
period of incarceration (in prison or jail), the court may order
restitution only for losses arising out of the ‗criminal conduct
for which the defendant has been convicted.‘ ‖ (People v.
Walker (2014) 231 Cal.App.4th 1270, 1274.)
The portion of the restitution order requiring Alphonso
and James to pay restitution related to the Riverside
Diamond Wireless robbery on April 25 (counts 2 and 3) and
the Fontana Diamond Wireless robbery on May 8 (counts 4,
5, and 6) must be stricken.
C. Joint and several liability
Respondent concedes that the abstracts of judgment for
Jarrod, Alphonso, and James should be modified to reflect
joint and several liability for the restitution orders. (People
v. Blackburn (1999) 72 Cal.App.4th 1520, 1535.) This
excludes Jonathan. The prosecution withdrew its request for
a restitution hearing as to Jonathan, and he was not ordered
to pay restitution.
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DISPOSITION
Jarrod Williams‘s convictions on counts 4, 7, 13, 16, 18,
20, and 25 are reversed. The judgment is modified to stay,
pursuant to Penal Code section 654, Jarrod Williams‘s
sentences on count 2 and 10. The restitution order shall be
modified to state Diamond Wireless as the recipient of
restitution for the April 25, 2012 robbery on count 3.
The judgment is modified to stay, pursuant to Penal
Code section 654, Alphonso Williams‘s sentences on counts 7,
10, 13, 16, 18, and 20. The portion of the restitution order
requiring Alphonso Williams to pay restitution in counts 2,
3, 4, 5, and 6 is ordered stricken.
James Wilson‘s convictions on counts 7, 13, 15, 16, 18,
and 20 are reversed. The judgment is modified to stay,
pursuant to Penal Code section 654, James Wilson‘s
sentence on count 10. The portion of the restitution order
requiring James Wilson to pay restitution in counts 2, 3, 4,
5, and 6 is ordered stricken.
Jonathan Wilson‘s convictions on counts 16, 18, and 20
are reversed.
The abstracts of judgment for Jarrod Williams,
Alphonso Williams, and James Wilson shall be modified to
reflect joint and several liability for restitution.
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The trial court shall amend the abstract of judgment
accordingly, and forward the amended abstract of judgment
to the California Department of Corrections and
Rehabilitation.
In all other respects, the judgments are affirmed.
CERTIFIED FOR PUBLICATION.
JOHNSON, J.
We concur:
ROTHSCHILD, P. J.
LUI, J.
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