People v. Kuk CA2/8 ( 2014 )

Filed 1/14/14 P. v. Kuk CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B240585
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. KA091650)
v.
TREVOR B. KUK,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County.
George Genesta, Judge. Affirmed.
Robert Bryazman, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Steven E. Mercer and Alene M.
Games, Deputy Attorneys General, for Plaintiff and Respondent.
__________________________
Defendant and appellant Trevor B. Kuk appeals from his convictions, following a
jury trial, of second degree burglary, second degree robbery, assault with an assault
weapon upon peace officers, shooting at an occupied aircraft, possession of an assault
weapon, and felony evading.1 He contends: (1) there was insufficient evidence to
support the convictions for assault on a peace officer with an assault weapon (counts 8
and 9) and shooting at an occupied aircraft (count 10); (2) the failure to give a unanimity
instruction as to the two robbery counts was prejudicial error; and (3) failure to instruct
on theft as a lesser included offense of robbery was prejudicial error. We affirm.
INTRODUCTION
The Burro Canyon Shooting Park is a shooting range located off Highway 39 in
the San Gabriel Mountains. In the park office, merchandise for sale is displayed in glass
cases. In August 2012, defendant and Maria Martinez had been in a romantic
relationship for about six months. During that time, they had progressed from occasional
1 All undesignated statutory references are to the Penal Code. Defendant was
charged by amended information with: attempted murder of a peace officer (§§ 664, 187,
subd. (a)) (counts 1 [Michael Luther] and 2 [Karen Dearborn]); second degree
commercial burglary (§ 459) (count 3); assault with an assault weapon (§ 245,
subd. (a)(3)) (counts 4 [Matthew Skolaski] and 6 [Ines Fuentes]); felony evading an
officer (Veh. Code, § 2800.2, subd. (a)) (count 5); second degree robbery (§ 211) (counts
7 [Mathew Skolaski] and 11 [Thomas Serrato]); assault on a peace officer with an assault
weapon (§ 245, subd. (d)(3)) (counts 8 [Michael Luther] and 9 [Karen Dearborn]);
shooting at an occupied aircraft (§ 246) (count 10); and possession of an assault weapon
(§ 12280, subd. (b)) (count 12). Various gun use enhancements were also alleged
(§ 12022.5, subds. (a), (b) and (d); § 12022.53, subd. (b)). A jury found defendant guilty
of:
 Second degree burglary (count 3);
 Second degree robbery of Serrato (count 11);
 Felony evading an officer (count 5);
 Assault on a peace officer with an assault weapon (counts 8 and 9);
 Shooting at an occupied aircraft (count 10); and
 Possession of an assault weapon (count 12).
It also found true all of the enhancements relating to those counts. The jury found
defendant not guilty of the remaining counts. Defendant was sentenced to 45 years,
8 months in prison. He timely appealed.
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methamphetamine use to using three or four times a day. Defendant’s hobby was
shooting guns. In mid-July 2012, Martinez acquired a gun for defendant because he
could not purchase one in his own name; defendant modified the gun so that it would
shoot more than one bullet at a time. Armed with this gun, defendant broke into the
Burro Canyon Shooting Park in the early morning hours of August 16, 2012, while
Martinez acted as his lookout.2 The burglary was interrupted by a park employee.
Defendant led sheriff’s deputies on a high speed chase during which he shot at a Sheriff’s
Department helicopter. A television news crew videotaped the pursuit. In the following
section, we detail only those facts relevant to the issues on appeal.
FACTS
A. Count 3 (Second Degree Burglary of Burro Canyon Shooting Park), Count 7
(Second Degree Robbery of Skolaski), Count 11 (Second Degree Robbery of
Serrato)
Viewed in accordance with the usual rules on appeal (People v. Zamudio (2008)
43 Cal. 4th 327, 357-358), the evidence established that defendant and Martinez used
methamphetamine and ecstasy while together at defendant’s home the night of
August 15, 2012. At about 2:00 or 3:00 a.m. on August 16, while they were driving
around in defendant’s white Mazda pickup truck and smoking methamphetamine,
defendant told Martinez his plan to steal things from a shooting range. When defendant
stopped to remove the license plate from the truck, Martinez noticed that the gun she had
bought for him was behind the driver’s seat. Defendant drove to the Burro Canyon
Shooting Park, where he cut off the lock on the entrance gate, then drove up the hill and
parked next to a shed. Defendant cut off the lock on the shed and went in. Defendant
next moved the truck closer to the shooting range office. Martinez waited in the truck
while defendant, wearing a mask, walked up the ramp to the office. Martinez heard two
2 Martinez was jointly charged with defendant on all but the attempted murder
counts. She pled guilty in exchange for dismissal of both assault on a peace officer
counts and a six-year prison term.
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gun shots, but did not hear any breaking glass. Defendant entered the shooting park
office. A little while later, Martinez went up the ramp to urge defendant to leave.
Defendant told Martinez to put on a mask and keep watch. He handed Martinez two
cases he took from the office and instructed her to put them in the truck. Martinez put the
cases in the truck and took a second mask out of a duffel bag defendant had packed while
at his apartment; she held the mask to her face while she waited for defendant.
Defendant handed Martinez some knives and told her to put them in an empty blue bin he
had brought with them. Martinez was holding the bin of knives when a man (Serrato, the
robbery victim named in count 11) pulled up in a white truck. Martinez yelled to
defendant that someone was coming, then dropped the bin of knives and ran to
defendant’s Mazda. Defendant ran out of the store holding his gun, got into the Mazda
and drove away. At the bottom of the hill, Martinez saw another man (Skolaski, the
assault victim named in count 4 and robbery victim named in count 7) parked next to the
gate in another white truck. Defendant bumped the gate open with the front of his truck
and drove down the mountain. Skolaski followed them until defendant shot at him
through the truck’s back window.
Serrato testified that at about 5:00 a.m. on August 16, when he arrived at the park,
the front gate was locked. Serrato was on the gun range picking up shell casings when he
heard gunshots coming from the office area at about 6:00 a.m. Aware that no one should
have been in the office at that hour, Serrato drove over to investigate. Upon arriving, he
saw that the glass doors leading into the office were shattered. A white Mazda truck with
no license plate was parked nearby and a woman holding a mask to her face was standing
near the handicap ramp leading to the office. After the woman yelled, “Somebody’s
here, somebody’s here,” a masked man holding a Tec-9 pistol down by his side ran out of
the office. Frightened by the sight of the gun, Serrato put his truck in reverse and backed
up as far as possible while the man got into the driver seat and the woman got into the
passenger seat of the Mazda and drove away. Once the Mazda was out of sight, Serrato
called 911. Inside the shooting range office, he saw that the glass display cases had been
broken and various items, including scopes, pepper spray and knives, were missing.
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Serrato also discovered that a shed in which clay pigeons were stored had been broken
into. Serrato told the responding officers what was missing and that he saw a masked
man holding a pistol. Later that day, Serrato went to the San Dimas Sheriff’s Station
where he identified some of the stolen merchandise. Defendant was convicted in count
11 with the second degree robbery of Serrato.
When a second security guard, Skolaski, arrived at the park at about 6:00 or
6:30 a.m., the front gate was closed, but the lock had been cut off and was on the side of
the road. Skolaski pulled inside the gate, closed it behind him, and parked to wait for
Serrato. Skolaski saw a white Mazda pickup driving toward him at high speed. Skolaski
could see a man and woman inside, both wearing black plastic masks. After the truck
barreled through the closed gates, Skolaski followed it until the truck’s back slider
window opened and he heard four or five gunshots. Skolaski did not see a gun or any
muzzle flashes, but believed the female passenger was shooting at him. Skolaski
returned to the shooting range office to check on Serrato’s welfare. Skolaski noticed a
blue bin containing pocket knives underneath the deck in front of the office. The bin did
not belong to the park but he recognized the contents as park merchandise. Later that
day, Skolaski went with Serrato to the Sheriff’s station and identified some of the stolen
merchandise. Skolaski was the alleged victim in count 7 (second degree robbery) and
count 4 (assault with an assault weapon). The jury found defendant not guilty on both
counts.
B. Count 8 (Assault With An Assault Weapon On Peace Officer Michael Luther),
Count 9 (Assault With An Assault Weapon On Peace Officer Karen Dearborn),
Count 10 (Shooting At An Occupied Aircraft)
Afraid defendant’s erratic driving during the police pursuit was going to result in
an accident, Martinez testified that she was focusing on the road ahead when she heard
two gunshots. Turning toward defendant, Martinez saw him shoot two times out the
driver side window into the air, where the helicopter was hovering above them.
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Karen Dearborn testified that she was the co-pilot and Michael Luther was the
pilot of the Sheriff’s Department helicopter that assisted other officers in their pursuit of
defendant and Martinez that morning. After the pursuing officers lost sight of the Mazda,
a helicopter news crew that had been following the pursuit directed Dearborn and Luther
to a gas station where the Mazda was parked. When the Mazda pulled out of the gas
station, Luther followed it while Dearborn kept other law enforcement vehicles informed
of the Mazda’s location until the pursuit ended on the eastbound 10 Freeway, at the base
of Kellogg Hill. By that time, 10 or 15 law enforcement vehicles were involved in the
pursuit. During the pursuit, the Sheriff’s Department helicopter maintained a height of
between 400 and 500 feet, but after they were informed that they were being shot at, they
backed off a little. Dearborn did not see defendant display a firearm or see muzzle
flashes coming from the Mazda; no bullets hit the helicopter. A video of the pursuit
taken by a news helicopter (People’s Exhibit No. 17) was played for the jury. From the
video, Dearborn identified the Sheriff’s Department helicopter she and Luther were
piloting. Photographs of the distinctively marked helicopter were introduced into
evidence. (People’s Exhibit Nos. 34 and 35.)
In a post-arrest interview, Martinez told Detective Allen Rich that defendant shot
at the Sheriff’s Department helicopter that had been following them. Rich viewed the
news helicopter’s video of the pursuit (People’s Exhibit No. 17). When played in slow
motion, puffs of smoke can be seen coming out of the driver side and rear windows of the
Mazda. Rich created People’s Exhibit No. 33, a slow-motion version of the segment in
which the puffs of smoke are visible. Rich testified that the puffs of smoke were
produced by gunshots and based on where the puffs were coming out of the car, he
deduced that all shots were fired from either the Mazda’s driver side window or the rear
window. From the puffs of smoke, Rich could identify the direction shots were fired,
including some that were fired up at the helicopters.
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DISCUSSION
A. Substantial Evidence Supported the Convictions on Counts 8 (Assault With An
Assault Weapon on Peace Officer Michael Luther), 9 (Assault With An Assault
Weapon on Peace Officer Karen Dearborn) and 10 (Shooting At An Occupied
Aircraft)
Defendant contends the convictions on the aircraft shooting counts (8, 9 and 10)
were not supported by substantial evidence. He argues that the only evidence defendant
fired at the Sheriff’s Department helicopter occupied by pilot Luther and co-pilot
Deardon, was Martinez’s uncorroborated testimony, which was insufficient as a matter of
law because she was an accomplice. We reject this argument.
The standard of review for a challenge to the sufficiency of the evidence is well
settled. We examine the entire record to determine whether there is reasonable, credible
evidence that is of solid value from which a rational trier of fact could find the defendant
guilty beyond a reasonable doubt. (People v. Virgil (2011) 51 Cal. 4th 1210, 1263.) In so
doing, we view the evidence in the light most favorable to the prosecution and presume in
support of the judgment every fact the trier of fact could reasonably deduce from the
evidence. (Ibid.) The same standard applies whether direct or circumstantial evidence is
involved. “Although it is the jury’s duty to acquit a defendant if it finds the
circumstantial evidence susceptible of two reasonable interpretations, one of which
suggests guilt and the other innocence, it is the jury, not the appellate court that must be
convinced of the defendant’s guilt beyond a reasonable doubt. [Citation.] ‘ “If the
circumstances reasonably justify the trier of fact’s findings, the opinion of the reviewing
court that the circumstances might also reasonably be reconciled with a contrary finding
does not warrant a reversal of the judgment.” ’ ” [Citation.]’ [Citation.]” (Ibid.)
Generally, the uncorroborated testimony of a single witness is sufficient to support
a conviction unless the testimony is physically impossible or inherently improbable.
(People v. Canizalez (2011) 197 Cal. App. 4th 832, 845, citing People v. Scott (1978)
21 Cal. 3d 284, 296.) But the testimony of an accomplice is not sufficient to support
conviction unless the accomplice’s testimony is “corroborated by such other evidence as
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shall tend to connect the defendant with the commission of the offense . . . .” (§ 1111.)
“ ‘ “The corroborating evidence may be circumstantial or slight and entitled to little
consideration when standing alone, and it must tend to implicate the defendant by relating
to an act that is an element of the crime. The corroborating evidence need not by itself
establish every element of the crime, but it must, without aid from the accomplice's
testimony, tend to connect the defendant with the crime.” ’ [Citation.] ‘The evidence is
“sufficient if it tends to connect the defendant with the crime in such a way as to satisfy
the jury that the accomplice is telling the truth.” ’ [Citation.]” (People v. Williams
(2013) 56 Cal. 4th 630, 679.) In Williams, three accomplices testified against the
defendant who was charged with robbery and murder arising out of a failed drug deal.
Our Supreme Court found the accomplice’s testimony that the defendant set up the drug
deal with the victim was sufficiently corroborated by telephone records showing calls
between the defendant’s home and the victim’s work. The accomplice’s testimony was
further corroborated by other witnesses who saw the defendant leaving the house where
the robbery occurred. The victims’ wallets were found in a kitchen cabinet at the crime
scene, corroborating the accomplice’s testimony that the wallets were taken from the
victims before they were killed. (Id. at p. 679.)
Here, it is undisputed that Martinez was defendant’s accomplice. Her testimony
that defendant shot at the Sheriff’s Department helicopter while fleeing – the factual basis
of counts 8, 9 and 10 – was corroborated by the slow speed video of the pursuit (People’s
Exhibit No. 33) in which puffs of smoke can be seen coming out of the driver’s side
window of the Mazda. Detective Rich testified that the puffs of smoke were from
gunshots being fired out the driver’s side and rear windows of the Mazda. It was
undisputed that defendant was driving the Mazda during the entire pursuit. Rich testified
that the puffs of smoke appeared to be going up, which indicted that the gun was being
fired towards the helicopter. This evidence was sufficient to connect defendant with
crimes charged in counts 8, 9 and 10, and thus to corroborate Martinez’s testimony.
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B. No Unanimity Instruction Was Required
Defendant contends the trial court prejudicially erred in failing to give a unanimity
instruction with respect to the two charged second degree robberies (count 7 [Skolaski]
and count 11 [Serrato]).3 He argues that, although the amended complaint specified the
victims of those counts, the verdict forms did not. Because the jury found defendant not
guilty on count 7 (Skolaski) and guilty on count 11 (Serrato), defendant posits that some
jurors may have found defendant guilty of robbing Serrato while others may have found
him guilty of robbing Skolaski. We find no error.
“ ‘The right to a unanimous jury in criminal cases is guaranteed by the California
Constitution. (Cal. Const., art. I, § 16; [citation].) . . . [¶] It is established that some
assurance of unanimity is required where the evidence shows that the defendant has
committed two or more similar acts, each of which is a separately chargeable offense, but
the information charges fewer offenses than the evidence shows. [Citation.]’ ” (People
v. Milosavijevic (2010) 183 Cal. App. 4th 640, 645.) When the evidence suggests one
discrete crime, either the prosecution must elect among the crimes, or the trial court must
instruct the jury that it must unanimously agree that the defendant committed the same
criminal act. (People v. Hernandez (2013) 217 Cal. App. 4th 559, 569.)
Here, no unanimity instruction was required because the information did not
charge fewer offenses than the evidence showed. On the contrary, the amended
information alleged two distinct second degree robberies, specifying Skolaski as the
victim in count 7 and Serrato as the victim in count 11. As to both robbery counts, the
information alleged enhancements for personal firearm use and personal discharge of a
firearm. However, the jury was instructed that only count 7 (Skolaski) alleged an
enhancement for personal discharge of a firearm. The verdict forms for counts 7 and 11
did not specify the robbery victims. In his closing argument, the prosecutor explained:
3 The jury found defendant not guilty of the robbery of Skolaski but defendant
contends that the manner in which the jury was instructed as to both victims required a
unanimity instruction as well. The error is directed to count 11, the robbery of Serrato.
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“In counts 7 and 11, [defendant] is charged with committing robbery . . . . The
two victims alleged in . . . those counts are Thomas Serrato and Matthew Skolaski.
[¶] Now, you will find that in the charge against Thomas Serrato, the defendant is
being charged with the special allegation that he personally used a firearm. When
it comes to the count with respect to Matthew Skolaski, you will find the
allegation that he personally and intentionally discharged the firearm as to
Matthew Skolaski.” (Italics added.)
The jury found defendant guilty of count 11 (Serrato) and found true the personal use of a
firearm allegation. It found defendant not guilty on count 7 (Skolaski), which is
consistent with the not guilty verdict on count 4, which named Skolaski as the victim of
an assault with an assault weapon.
Although the better practice would have been to specify the victims in the verdict
forms, we find nothing in the record to suggest that the jury did not understand, based on
the prosecutor’s explanation, the jury instructions and the verdict forms, that count 7
referred to Skolaski and count 11 referred to Serrato. That the jury found defendant not
guilty of both counts in which Skolaski was the alleged victim (counts 4 and 7),
demonstrates that the jury understood that count 7 charged defendant with second degree
robbery of Skolaski and count 11 charged defendant with second degree robbery of
Serrato.
C. The Evidence Did Not Support Instruction on Theft as a Lesser Included Offense
of Robbery
Defendant contends it was prejudicial error not to instruct on theft as a lesser
included offense of second degree robbery.4 He argues that the evidence that defendant
used force or fear against Serrato was extremely weak. We are not persuaded.
“A trial court is obliged to instruct, even without a request, on the general
principles of law which relate to the issues presented by the evidence. (§§ 1093,
subd. (f), 1127; [citations].) When the evidence is minimal and insubstantial, there is no
4 Since defendant was found not guilty of the Skolaski robbery (count 7) we focus
only on whether a lesser included instruction was required as to the Serrato robbery
(count 11).
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duty to instruct. [Citations.] The California Supreme Court recently reiterated: ‘[T]he
existence of “any evidence, no matter how weak” will not justify instructions on a lesser
included offense, but such instructions are required whenever evidence that the defendant
is guilty only of the lesser offense is “substantial enough to merit consideration” by the
jury. [Citations.] “Substantial evidence” in this context is “ ‘evidence from which a jury
composed of reasonable [persons] could . . . conclude[ ]’ ” that the lesser offense, but not
the greater, was committed.’ [Citations.] We conduct independent review of issues
pertaining to instructions. [Citations.]” (People v. Cooksey (2002) 95 Cal. App. 4th 1407,
1410-1411.)
Robbery is “the felonious taking of personal property in the possession of another,
from his person or immediate presence, and against his will, accomplished by means of
force or fear.” (§ 211.) Theft, defined in section 484 as the felonious stealing, taking,
carrying, leading or driving away the personal property of another, is a lesser included
offense of robbery, missing only the elements of force or fear. (People v. Williams
(2013) 57 Cal. 4th 776, 786-787; People v. Whalen (2013) 56 Cal. 4th 1, 69.)
Fear may be inferred from the circumstances in which the crime is committed.
(People v. Cuevas (2001) 89 Cal. App. 4th 689, 698.) Evidence that the victim believed
the defendant was armed is sufficient to establish fear. (See e.g. People v. James (1963)
218 Cal. App. 2d 166, 170 [victim’s testimony that she thought robber had a gun and
robber shouted at her not to try anything or she would get hurt, sufficient to establish
fear]; see also People v. Jackson (1967) 253 Cal. App. 2d 68, 74 [victim’s testimony that
he gave up money because he thought the defendant had a gun and he was afraid of the
defendant was sufficient to establish fear].)
“[A] robbery is not completed at the moment the robber obtains possession of the
stolen property and . . . the crime of robbery includes the element of asportation, the
robber’s escape with the loot being considered as important in the commission of the
crime as gaining possession of the property. [Citations.]” (People v. Gomez (2008)
43 Cal. 4th 249, 255.) The use of force or fear to retain property (i.e., during the
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asportation phase) constitutes a robbery. (Id. at p. 258, citing People v. Estes (1983)
147 Cal. App. 3d 23, 26.)
Here, Serrato testified that he had a gun in his truck when he drove over to the
shooting range office to investigate the sound of gunshots coming from that location.
Notwithstanding that he himself was armed, when Serrato saw defendant run out of the
office holding a gun, Serrato backed up his truck as far as possible because he was afraid.
Serrato waited until defendant was out of sight before getting out of his truck, going into
the office and calling 911. There is no evidence from which a rational trier of fact could
infer that Serrato allowed defendant to drive away with the stolen goods for any reason
other than that he was afraid of being shot by defendant. Thus, there was no evidence
that the taking was anything other than a robbery and, therefore, no evidence to support
instruction on theft as a lesser included offense of robbery.
Even if we were to conclude the trial court erred in failing to instruct the jury on
the lesser included offense of theft, we would find the error harmless under any standard.
Serrato’s testimony was extremely strong evidence that defendant was able to escape
with the loot only because Serrato saw that defendant was armed and for this reason was
afraid to interfere with his escape. Under these circumstances, it is not reasonably
probable (People v. Watson (1956) 46 Cal. 2d 818, 836-837) that the jury would have
concluded defendant was guilty of theft but not robbery, and further, any error was
harmless beyond a reasonable doubt (see Chapman v. California (1967) 386 U.S. 18, 24).
DISPOSITION
The judgment is affirmed.
RUBIN, J.
WE CONCUR:
BIGELOW, P. J. GRIMES, J.
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