People v. Newman ( 2019 )

Filed 9/23/19 (unmodified opn. attached)
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B291412
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. MA070718)
v.
ORDER MODIFYING
ANDREW NEWMAN, OPINION
Defendant and Appellant. [No change in judgment]
THE COURT:
The opinion filed on September 19, 2019, in the above-
entitled matter is modified as follows:
On page 2, first paragraph, delete the last sentence:
“Statutory references are to the Penal Code.”
On page 4, first paragraph, change the People v. Martinez
citation after the first sentence to: “(People v. Martinez (1999) 20
Cal. 4th 225, 235 (Martinez), overruled on other grounds in People
v. Fontenot (Aug. 26, 2019, S247044) ___Cal.5th___ [2019 Cal.
Lexis 6238].)”
On page 5, delete all three paragraphs under Section III.
Replace with the following paragraph under Section III:
“The trial court had no duty to give an attempted
kidnapping instruction because, contrary to Newman’s argument,
attempted kidnapping is not a lesser included offense of
completed kidnapping. (People v. Fontenot, supra, ___Cal.5th___
[2019 Cal. Lexis 6238] [p. 24].)”
There is no change in judgment.
BIGELOW, P.J. GRIMES, J WILEY, J.
2
Filed 9/19/19 (unmodified version)
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B291412
Plaintiff and Respondent, (Los Angeles County
Super. Ct.
v. No. MA070718)
ANDREW NEWMAN,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Kathleen Blanchard, Judge. Affirmed.
Eric E. Reynolds, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General of California, Gerald A.
Engler, Chief Assistant Attorney General, Lance E. Winters,
Senior Assistant Attorney General, Scott A. Taryle, Supervising
Deputy Attorney General, Rene Judkiewicz, Deputy Attorney
General, for Plaintiff and Respondent.
____________________
Andrew Newman broke into H’s bedroom, pointed a gun at
her, and ordered her into his car. A jury convicted Newman of
first degree burglary, assault with a firearm, and kidnapping.
Newman makes three arguments: he moved H too short a
distance to count as kidnapping; the trial court incorrectly
instructed the jury; and we should strike assessments in light of
People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas). We
affirm. Statutory references are to the Penal Code.
I
H was a high school junior when she started dating
Newman in 2013. Six months into the relationship, Newman
began physically abusing H. The abuse continued almost every
day until the relationship ended in 2016.
Newman hit H with a metal pole as punishment for
“anything [she] did bad.” In one instance, Newman hit H with
the pole because she “folded a shirt that needed to be hung.” The
pole left scars. Newman also scarred H’s stomach by pinching
her hard.
Newman held H’s head underwater in a tub. She “forgot
what [she] had done wrong” for Newman to punish her this way.
Newman punched H’s face over 11 times because he
thought she said something wrong.
He also threw H’s dog next to railroad tracks and held a
knife to the dog until H apologized for something.
H was afraid to leave Newman because he threatened to
find and torture her and kill her and her family. The two broke
up several times but Newman always convinced H to get back
together by telling her things would change and she would not
have to be afraid anymore. H eventually blocked all contact.
2
On March 6, 2017 at 7:00 a.m., a loud crash woke H from
slumber in her bed. Newman broke into her locked bedroom and
pointed a gun at her chest. H was scared and screamed for help
but no one else was home. Newman said he had “nothing else to
lose.” He waved the gun and told H to go to his car. Newman
pointed the gun at H as she got out of bed and went to the front
door, which was 20 to 30 feet away.
As H opened the door, Newman got in front of her and told
her to start running. H ran about 35 feet from the front door to
the entry gate as slowly as she could. The car was parked about
550 feet from the front door. Newman turned around three times
while pointing the gun at H and told her to run faster. H ran
another 135 feet or so towards Newman’s car. H believed she
would die if she got into the car so she ran into her neighbor’s
house through their back door, which was unlocked. The
neighbors’ back door was 25 feet away from their gate, which was
past the driveway. H screamed, “He has a gun. He has a gun.
He’s going to kill me.” Neighbors helped her call the police.
Newman turned himself in to the police that day.
The jury convicted Newman of first degree burglary (count
1), assault with a firearm (count 2), and kidnapping (count 3). It
also found Newman used a pistol for the assault with a firearm
and kidnapping. The court sentenced Newman to 15 years and
imposed fines and fees.
II
Substantial evidence supports the kidnapping conviction.
We review the evidence in the light most favorable to the
People to determine whether a rational jury could have found the
crime’s essential elements beyond a reasonable doubt. (People v.
Virgil (2011) 51 Cal. 4th 1210, 1263.)
3
Newman limits his argument to the asportation element of
kidnapping, which requires movement that is “substantial in
character.” (People v. Martinez (1999) 20 Cal. 4th 225, 235
(Martinez).) He claims the distance he forced H to move was
“short” and therefore insubstantial.
This argument fails because the evidence was ample.
Newman broke into H’s bedroom. Using a gun, he ordered her to
his car. Newman pointed the gun at H as she got out of bed and
walked to the front door. He made H run towards his car. At
minimum, Newman made H move 190 feet before she broke free.
A jury considers all the circumstances to determine
whether the kidnapping movement was substantial rather than
trivial. (Martinez, supra, 20 Cal.4th at p. 237.) Based on the
evidence, a rational jury could have found Newman made H move
a substantial distance.
Newman’s substantial evidence challenge masks what is in
reality his request that we declare 190 feet to be a trivial distance
as a matter of law. He cites no precedent for this quantitative
challenge, no case holding this distance is too short. We reject
this proposal. Shorter distances are “substantial in character”
under the Martinez standard, which considers all the evidence.
(See People v. Arias (2011) 193 Cal. App. 4th 1428, 1435–1436
[moving victim 15 feet into his apartment met asportation
requirement]; People v. Shadden (2001) 93 Cal. App. 4th 164, 168–
169 [moving victim nine feet from the front to the back of a store
was substantial].)
Newman ordered H from her bed to his waiting car. He
made plain he planned to drive her somewhere. Taking a victim
from her bed, through her house, out the door, through the front
gate, and almost 200 feet towards his waiting car is not trivial
4
when the only reason the distance was not far greater was the
victim got away en route.
Newman argues he decreased the risk of harm to H when
he forced her outdoors at gunpoint from her bed towards his car.
The jury was entitled to see matters differently. H believed she
would die if she got in the car. The closer the two got to the car,
the smaller H’s window of opportunity for some sort of action.
Kidnapper and victim were not loitering but were on the move,
events were rushing to some unknown outcome, and he had a
gun. The jury could conclude the situation and the risks were
spiraling upwards. (See People v. Jones (1999) 75 Cal. App. 4th
616, 629–630 [forcing victim to move 40 feet to a car increased
risk of harm even though victim escaped from the car].)
This evidence of kidnapping was substantial.
III
The trial court had no duty to give an attempted
kidnapping instruction.
We independently review a trial court’s failure to instruct
on a lesser included offense and view the evidence in the light
favorable to the defendant. (People v. Millbrook (2014) 222
Cal. App. 4th 1122, 1137.)
A trial court must give instructions on lesser included
offenses when the evidence raises a question as to whether all the
elements of the charged offense were present. (People v.
Breverman (1998) 19 Cal. 4th 142, 154.) But the court need not do
so when there is no evidence the offense was less than charged.
(Ibid.) There is no evidence Newman committed anything less
than kidnapping, as we have just reviewed. Thus the trial court
was not obligated to instruct on attempted kidnapping.
5
IV
Newman forfeited his Dueñas claims.
He concedes he did not object to the fines and fees in the
trial court. He thus forfeited these arguments. (People v.
Frandsen (2019) 33 Cal.App.5th 1126, 1153–1155; People v.
Bipialaka (2019) 34 Cal.App.5th 455, 464.)
DISPOSITION
The judgment is affirmed.
WILEY, J.
We concur:
BIGELOW, P. J.
GRIMES, J.
6