Filed 1/25/16 P. v. Lewis CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
 California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
                                     or ordered published for purposes of rule 8.1115.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                       E062850

v.                                                                       (Super.Ct.No. FVI1301449)

KAROME DYNELL LEWIS,                                                     OPINION

         Defendant and Appellant.




         APPEAL from the Superior Court of San Bernardino County. Debra Harris,

Judge. Affirmed.

         Loleena Ansari, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, and A. Natasha Cortina and

Christine Levingston Bergman, Deputy Attorneys General, for Plaintiff and Respondent.
                                   I. INTRODUCTION

       Defendant and appellant, Karome Dynell Lewis, and codefendant, James Michael

Wilson, were charged with one count of kidnapping Willy Neal from an apartment

complex in Las Vegas, Nevada and with transporting Neal into California. (Pen. Code,

§ 207, subd. (d).) Defendant and Wilson were tried separately and a jury convicted

defendant as an aider and abettor to the kidnapping. The trial court found defendant had

three prior strike convictions based on one incident in 1995, and denied defendant’s

Romero1 motion to dismiss two of his three prior strikes. Defendant was sentenced to an

indeterminate term of 25 years to life.

       On appeal, defendant contends his kidnapping conviction must be reversed

because there was insufficient evidence connecting him to the kidnapping and, thus,

insufficient evidence to support his conviction. He further contends the trial court abused

its discretion in denying his Romero motion to dismiss two of his prior strike convictions.

We affirm the judgment, as substantial evidence supported defendant’s kidnapping

conviction, and as the trial court did not abuse its discretion in declining to dismiss two of

defendant’s prior strike convictions.

                               II. STATEMENT OF FACTS

A. Prosecution Evidence

       At approximately 11:00 a.m. on May 21, 2013, witnesses who were at an

apartment complex in Las Vegas, Nevada heard screams of “I didn’t take it,” “I don’t

       1   People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).
have it,” or “I didn’t do it,” and saw Neal being forced into the backseat of a vehicle.

According to eyewitnesses, Neal resisted attempts to be forced into a gray sports utility

vehicle until Wilson subdued Neal by slamming Neal’s head against the door of the

vehicle and then forcing Neal into the driver’s side rear seat. One witness identified the

vehicle’s license plate number. Other witnesses testified that Wilson was wearing a

white shirt, Neal was wearing a red shirt, and Wilson was significantly larger in stature

than Neal. One witness told police that Wilson had an accomplice seated in the

passenger’s side rear seat of the vehicle, and that the accomplice grabbed and held a

bloodied Neal down after Neal had been forced into the backseat. Although the

witnesses at the scene in Las Vegas were generally able to describe Wilson, Neal, and the

vehicle, none of the witnesses were able to provide a description of the accomplice.

       A few hours later, a California Highway Patrol officer who was in Barstow

received a dispatch to be on the lookout for the vehicle. Around 2:00 p.m.,

approximately three hours after witnesses saw Neal being forced into the backseat of the

vehicle, the officer spotted a vehicle matching the description and license plate of the

vehicle the witnesses described. The officer followed the vehicle as it exited the freeway

and pulled into a gas station. The officer conducted a felony stop and all three

individuals were placed in handcuffs. At the time of the felony stop, two of the

individuals were seated in the backseat of the vehicle. The officer ran all three

occupants’ driver’s licenses and identified them as Wilson, Neal, and defendant, with

Wilson being the driver. The officer testified that Wilson was wearing a gray shirt and
that Neal was wearing a red shirt. Neal was crying and saying, “Take me away from

them. Take me away from them.” The officer also observed that Neal was smaller in

build compared to both defendant and Wilson, and that the victim had bruising on both

sides of his neck. Neal told the officer that the bruising was the result of being held down

by the collar. The officer arrested defendant and Wilson.

B. Defense Evidence

       At trial, defendant did not testify and presented no other affirmative defense.

                                    III. DISCUSSION

A. Substantial Evidence Shows Defendant Aided and Abetted the Kidnapping

       Defendant contends his kidnapping conviction must be reversed because there was

insufficient evidence that he was the person in the backseat of the vehicle who aided and

abetted Wilson in kidnapping Neal in Las Vegas. Thus, he argues his kidnapping

conviction was not supported by substantial evidence. Not so.

       Where the sufficiency of the evidence is challenged on appeal, the appellate court

“must determine from the entire record whether a reasonable trier of fact could have

found that the prosecution sustained its burden of proof beyond a reasonable doubt. In

making this determination, the reviewing court must consider the evidence in a light most

favorable to the judgment and presume the existence of every fact the trier could

reasonably deduce from the evidence in support of the judgment. The test is whether

substantial evidence supports the decision, not whether the evidence proves guilt beyond

a reasonable doubt. [Citations.]” (People v. Mincey (1992) 2 Cal.4th 408, 432, fn.
omitted.) “‘“Although it is the duty of the jury to acquit a defendant if it finds that

circumstantial evidence is susceptible of two interpretations, one of which suggests guilt

and the other innocence [citations], it is the jury, not the appellate court[,] which must be

convinced of the defendant’s guilt beyond a reasonable doubt. ‘“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.”’ [Citations.]”’” (People v. Rodriguez (1999) 20

Cal.4th 1, 11.) Substantial evidence includes circumstantial evidence and the logical

inferences that the jury may have drawn from the evidence. (People v. Zamudio (2008)

43 Cal.4th 327, 357.) Circumstantial evidence may be used to establish identity. (People

v. Romero and Self (2015) 62 Cal.4th 1, 33.) It can also be used to connect a defendant to

the commission of a crime. (People v. Allen (1985) 165 Cal.App.3d 616, 625.)

       Section 207, subdivision (d), of the Penal Code provides that: “Every person who,

being out of this state, abducts or takes by force or fraud any person contrary to the law

of the place where that act is committed, and brings, sends, or conveys that person within

the limits of this state, and is afterwards found within the limits thereof, is guilty of

kidnapping.” All persons concerned in the commission of a crime, whether as a direct

perpetrator or as an aider and abettor, are principals in the crime. (People v. McCoy

(2001) 25 Cal.4th 1111, 1116-1117.) An aider and abettor is equally as culpable as the

actual perpetrator. (Id. at p. 1120.) To be convicted as an aider and abettor, there must

be proof that the “aider and abettor act[ed] with knowledge of the criminal purpose of the
perpetrator and with an intent or purpose either of committing, or of encouraging or

facilitating commission of, the offense.” (People v. Beeman (1984) 35 Cal.3d 547, 560;

People v. Swanson-Birabent (2003) 114 Cal.App.4th 733, 740.) Because it is difficult to

prove one’s intent through direct evidence, the intent to commit an act may be proven

circumstantially. (In re Jorge M. (2000) 23 Cal.4th 866, 884.) For example, “‘the act

itself, together with its surrounding circumstances [may] generally form the basis from

which the intent of the actor may legitimately be inferred.’ [Citation.]” (People v.

Edwards (1992) 8 Cal.App.4th 1092, 1099.)

       Here, witnesses testified that a man in a white shirt forced a much smaller victim

in a red shirt into the back of a sports utility vehicle and that an accomplice held the

victim down as the driver drove away. The officer testified that, approximately three

hours after the abduction, defendant, Wilson, and Neal were in the vehicle when it was

stopped in California, and that defendant and Neal were in the backseat. Wilson and

Neal matched the descriptions given by the witnesses, and the officer observed that both

defendant and Wilson were significantly larger than Neal. Neal also had bruising around

his neck, was crying, and implored the officer to “take me away from them. Take me

away from them.” Based on this evidence, the jury could have reasonably inferred that

defendant was the person who was holding Neal down in Las Vegas as Wilson drove the

vehicle away, and that, by holding Neal down, defendant intended to encourage or

facilitate the kidnapping of Neal. Thus, defendant’s conviction for aiding and abetting

the kidnapping of Neal is supported by substantial evidence.
B. The Trial Court Did Not Abuse Its Discretion in Denying Defendant’s Romero Motion

       Defendant next contends the trial court abused its discretion when it refused to

strike two of his three prior strike convictions that arose from the same 1995 offense. We

reject this contention.

       The “Three Strikes initiative, as well as the legislative act embodying its terms,

was intended to restrict courts’ discretion in sentencing repeat offenders.” (Romero,

supra, 13 Cal.4th at p. 528.) Thus, when a court is asked to dismiss prior strikes in

“furtherance of justice” (Pen. Code, § 1385, subd. (a)), it “must consider whether, in light

of the nature and circumstances of his present felonies and prior serious and/or violent

felony convictions, and the particulars of his background, character, and prospects, the

defendant may be deemed outside the scheme’s spirit, in whole or in part, and hence

should be treated as though he had not previously been convicted of one or more serious

and/or violent felonies.” (People v. Williams (1998) 17 Cal.4th 148, 161.) Examples of

factors that a court may consider include the defendant’s age (People v. Gaston (1999) 74

Cal.App.4th 310, 321-322), the length of time between the commission of the prior

strikes and the current crime (People v. Bishop (1997) 56 Cal.App.4th 1245, 1251), or

whether the current or past offenses involved violence (People v. Myers (1999) 69

Cal.App.4th 305, 308-310). Most importantly, the court must look to the defendant’s

conduct between the commission of the strike and the current crime. (People v. Williams,

supra, at p. 163.) Whether a defendant has suffered misdemeanor violations, or violated

parole or probation, are aggravating factors that the court may consider in denying a
Romero motion. (People v. Barrera (1999) 70 Cal.App.4th 541, 553-555; People v.

McGlothin (1998) 67 Cal.App.4th 468, 475.) Also, a defendant who suffers multiple

convictions for violent crimes arising out of a single act, but that affects multiple victims,

can be deemed to have suffered multiple strikes under the “Three Strikes” law. (People

v. Rusconi (2015) 236 Cal.App.4th 273, 280-281.)

       A court’s failure to dismiss or strike a prior conviction allegation is subject to

review under the deferential abuse of discretion standard. (People v. Carmony (2004) 33

Cal.4th 367, 374.) “‘“[T]he burden is on the party attacking the sentence to clearly show

that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such

a showing, the trial court is presumed to have acted to achieve legitimate sentencing

objectives, and its discretionary determination to impose a particular sentence will not be

set aside on review.”’” (Id. at pp. 376-377.) The trial court is not required to “‘explain

its decision not to exercise its power to dismiss or strike’ . . . . [Citation.]” (Id. at p.

376.) Any error in declining to strike a prior felony conviction “must affirmatively

appear on the record. On a silent record in a post-Romero case, the presumption that a

trial court ordinarily is presumed to have correctly applied the law should be applicable.

[Citations.]” (People v. Gillispie (1997) 60 Cal.App.4th 429, 434.) “[T]he trial court

may ordinarily rely on the record of conviction to justify the denial of relief under Penal

Code section 1385.” (Ibid.)

       Here, the court summarily denied defendant’s Romero motion without explaining

its grounds for denial. Defendant thus contends that the court abused its discretion in
denying the motion, because the record does not indicate why the court denied the

motion. But the trial court was not required to explain its reasons, and the record

supports its decision to deny defendant’s Romero motion. Defendant’s three prior strikes

arose from a 1995 incident where defendant, who was then 19 years old, and two

companions committed an armed robbery of a restaurant. Defendant was convicted of

one count of burglary, six counts of robbery, one count of attempted robbery, and seven

counts of false imprisonment, and received a prison sentence of 10 years 4 months. He

was released from prison around 2001, but violated parole in 2002 and 2003. He was

also charged in New Mexico, Connecticut, and California with drug-related offenses in

2005, 2008, and 2011, respectively, before being arrested in 2013 for the current offense.

       Both the past strikes and the current offense involved the use of violence, and

defendant has repeatedly run afoul of the law between the commission of the prior strikes

and of the current crime. Defendant points out that he “had been out of custody for

around 13 years [since his three prior strikes], where he did not sustain any new

convictions.” But as noted, between the time he was released from prison in 2001 and

the kidnapping in 2013, he violated parole twice and was arrested three times for drug-

related offenses. Based on his conduct between the commission of the prior strikes and

the current crime, the trial court reasonably determined that defendant fell within the

spirit of the Three Strikes law, and it did not abuse its discretion when it declined to

dismiss two of defendant’s three prior strikes.
                                 IV. DISPOSITION

     The judgment is affirmed.

     NOT TO BE PUBLISHED IN OFFICIAL REPORTS


                                                   KING
                                                          J.


We concur:

HOLLENHORST
          Acting P. J.

MILLER
                       J.
