Filed 10/1/14 P. v. Rodgers CA2/2
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     SECOND APPELLATE DISTRICT
                                                  DIVISION TWO

THE PEOPLE,                                                          B250622

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. YA085322)
         v.

TYLER LEE RODGERS,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County. Mark S.
Arnold, Judge. Affirmed as modified.


         Tanya Dellaca, under appointment by the Court of Appeal, for Defendant and
Appellant.


         Kamala D. Harris, Attorney General, Lance E. Winters, Assistant Attorney
General, Victoria B. Wilson and Idan Ivri, Deputy Attorneys General, for Plaintiff and
Respondent.
       Defendant and appellant Tyler Lee Rodgers (defendant) appeals from the
judgment entered upon his conviction of attempted murder, aggravated kidnapping,
robbery, and burglary. He contends that substantial evidence did not support the
aggravated kidnapping conviction, that the sentence imposed for robbery was prohibited
double punishment, and that he is entitled to three additional days of presentence custody
credit. We agree that defendant is entitled to three additional days of presentence custody
credit, but find no merit to defendant’s remaining contentions. We thus modify the
judgment to add the credits, but otherwise affirm.
                                     BACKGROUND
Procedural history
       Defendant was charged in a four-count information as follows: in count 1, with
the attempted willful, deliberate, and premeditated murder of Naveed Mirza (Mirza), in
violation of Penal Code sections 664 and 187, subdivision (a);1 in count 2, with
kidnapping to commit robbery in violation of section 209, subdivision (b)(1); in count 3,
with second degree robbery in violation of section 211; and in count 4, with first degree
residential burglary in violation of section 459. The information also alleged as to counts
1, 2, and 3, that defendant personally inflicted great bodily injury upon the victim within
the meaning of 12022.7, subdivision (a), and that defendant personally used a firearm
during the commission of the crimes within the meaning of section 12022.53, subdivision
(b). For purposes of section 667, subdivision (a)(1), and the “Three Strikes” law (§§ 667,
subd. (b)-(i), 1170.12, subd. (a)-(d)), the information alleged that defendant had suffered
a prior serious or violent felony conviction or juvenile adjudication.
       Defendant waived his right to a jury trial, and after a court trial, he was convicted
of all counts as charged. In addition, the trial court found true the allegations that the
attempted murder was willful, deliberate, and premeditated, that defendant had personally
used a firearm during the commission of the crime, that defendant inflicted great bodily
injury upon the victim, and that defendant had suffered a prior robbery conviction.


1      All further statutory references are to the Penal Code, unless otherwise indicated.

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       On June 26, 2013, the trial court sentenced defendant to a total term of 40 years
and eight months to life in prison. First, as to count 3, the court imposed the upper term
of five years for the robbery of Mirza, doubled to 10 years as a second strike, plus 10
years for the gun use (§ 12022.53, subd. (b)). The court also imposed a three-year term
for inflicting great bodily injury (§ 12022.7, subd.(a)), which the court stayed pursuant to
section 654. As to count 4, the residential burglary, the trial court imposed one-third the
middle term, 16 months, doubled as a second strike to two years eight months, to run
consecutively. As to count 2, aggravated kidnapping, the court imposed a consecutive
life term with the seven-year minimum parole period doubled to 14 years due to the
second strike, plus 10 years for the gun use, three years for inflicting great bodily injury,
and a five-year habitual criminal enhancement. As to count 1, attempted murder, the trial
court sentenced defendant to a concurrent life term, with the minimum parole period
doubled to 14 years as a second strike, to be served concurrently with count 1. The
enhancement for great bodily injury was imposed and stayed pursuant to section 654.
Defendant received credit for 306 days of actual custody and 45 days of conduct credit
for a total of 351 days. The court also imposed mandatory fines and fees, ordered
defendant to pay victim restitution, and scheduled a later hearing to determine the
amount.
       Defendant filed a timely notice of appeal from the judgment.
Prosecution evidence
       Dana Hadnett’s home was burglarized on June 4, 2012, and multiple items were
stolen. Defendant’s fingerprints were found inside the house, as well as DNA which was
determined to be a possible match to defendant.
       On August 16, 2012, shortly before 3:00 p.m., defendant appeared in the Cigar and
Smoke Shop, where shop employee Mirza was the only person present. Mirza testified to
the events of that day and narrated surveillance videos which had captured most of the
incident. Mirza was at the cash register when defendant entered the store carrying a long
cardboard box in which he was hiding a shotgun. Defendant took the shotgun from the
box, pointed it at Mirza’s chest, and forced Mirza into the back room of the store. There


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he ordered Mirza to handcuff himself and threatened to kill Mirza if he failed to comply.
Defendant then returned to the front of the store, where he closed the front door and
security gate, giving the store the appearance of being closed. When defendant returned
to the back room he pointed the gun at Mirza, loaded a bullet and asked where the money
was kept. When Mirza replied that it was kept in the cash register, defendant collected
that money and returned, asking about additional money. Mirza responded that he did
not know of any other money. Defendant threatened to kill him, but Mirza reiterated that
he did not know of any more money.
       After searching the front room again, defendant returned to Mirza, again
demanded to know where more money was kept, and threatened him. Mirza continued to
reply that he did not know of any more money. Defendant replied: “Okay. If you don’t
know the money, then I’m going to check your pants. . . . Do you have some money?”
Defendant then took Mirza’s wallet from his pants and pocketed the money he found in
it, along with Mirza’s driver’s license. Defendant then said, “If you say anything about
this incident, I’m going to shoot you. I’m going to kill you.” Defendant also threatened
to shoot Mirza until he told him where to shut down the video cameras.
       Defendant then took a knife from his pocket, cut wires until the images
disappeared from the surveillance monitors, and told Mirza to stand up and extend his
neck. When Mirza complied, defendant cut Mirza’s throat from one side to the other.
Bleeding profusely, Mirza lay down and applied pressure to the wound with his hands.
Defendant again asked him where the money was, and again Mirza said it was in the cash
register. Defendant replied, “No. You know the money. You know the money. You
work here.” When Mirza denied knowing more, defendant said, “I’ll shoot you. I’ll cut
you,” and with the same knife, stabbed him three times in the neck. Defendant then took
a long metal wire, placed it at the front of Mirza’s neck and pressed back with it, causing
more bleeding.
       When Mirza lay back down, defendant again demanded to know where the money
was, and again Mirza responded that he did not know. Defendant again threatened to
shoot Mirza and ordered him to extend his neck. Still bleeding heavily, Mirza could


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barely breathe or speak, and felt like he was dying; but afraid that he would be shot if he
did not, he complied. Defendant then stabbed Mirza in the cheek. Mirza experienced
more bleeding, pain, and loss of sensation. Defendant then stabbed Mirza multiple times
on the other side of his neck. Mirza lay down again as defendant kept asking about
money and threatening to kill him. Mirza lay there, unable to speak, falling in and out of
consciousness. Defendant went to the front, came back, again asked for money, and
when Mirza did not tell him, defendant fired the shotgun gun once and tried to fire a
second time, but nothing happened. Defendant then stabbed Mirza in one hand and
slashed the other hand.
       Defendant finally left the store and Mirza managed to stagger out the front door of
the shop, where he screamed for help. Passersby helped him and he was taken by
ambulance to the hospital, where he underwent surgery. Two days later, Mirza selected
defendant’s photograph from a photographic lineup and identified him as his assailant.
       Manhattan Beach Police Detective Michael Rosenberger investigated the incident.
He testified that the front part of the store and the back room were separated by an L-
shaped hallway, with one segment of about six feet long, and another about five feet long.
The distance between the cash register and the back room was about 40 feet. Detective
Rosenberger interviewed defendant after his arrest on August 23, 2012. A recording of
the interview was played. In essence, defendant admitted that he put the shotgun in a
box, went to the store to steal, took about $240, and cut the victim’s throat in order to
eliminate the person who could identify him; he then left and threw the shotgun, knife,
and Mirza’s wallet into the Los Angeles River.
       The defense presented no evidence.
                                      DISCUSSION
I. Kidnapping for robbery
       Defendant contends that the evidence was insufficient to support his conviction of
count 2, kidnapping to commit robbery. In particular, he contends that the evidence
showed that the movement of the victim was merely incidental to the commission of the
robbery.


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       When a criminal conviction is challenged as lacking evidentiary support, “the
court must review the whole record in the light most favorable to the judgment below to
determine whether it discloses substantial evidence -- that is, evidence which is
reasonable, credible, and of solid value -- such that a reasonable trier of fact could find
the defendant guilty beyond a reasonable doubt.” (People v. Johnson (1980) 26 Cal.3d
557, 578; see also Jackson v. Virginia (1979) 443 U.S. 307, 318-319.) We must presume
in support of the judgment the existence of every fact the jury could reasonably deduce
from the evidence. (People v. Kraft (2000) 23 Cal.4th 978, 1053.) We do not reweigh
the evidence or resolve conflicts in the evidence. (People v. Young (2005) 34 Cal.4th
1149, 1181.) Reversal on a substantial evidence ground “is unwarranted unless it appears
‘that upon no hypothesis whatever is there sufficient substantial evidence to support [the
conviction].’ [Citation.]” (People v. Bolin (1998) 18 Cal.4th 297, 331.)
       Kidnapping for robbery, a form of aggravated kidnapping, consists of two
elements: (1) “the movement of the victim is beyond that merely incidental to the
commission of [the robbery]”; and (2) the movement “increases the risk of harm to the
victim over and above that necessarily present in [the robbery].” (§ 209, subd. (b)(2).)2
The two prongs of aggravated kidnapping “are not distinct, but interrelated, because a
trier of fact cannot consider the significance of the victim’s changed environment without
also considering whether that change resulted in an increase in the risk of harm to the
victim.” (Martinez, supra, 20 Cal.4th at p. 236.) Each case turns on its own facts, which




2       In section 209, subdivision (b)(2), the Legislature codified the “Daniels test”
which, as formulated in People v. Daniels (1969) 71 Cal.2d 1119, 1139 (Daniels),
required a substantial increase in the risk of harm. (See Stats. 1997, ch. 817, § 2.)
However, the Legislature omitted that requirement, and the second element now simply
requires a risk of harm greater than necessarily present in the robbery. (People v.
Martinez (1999) 20 Cal.4th 225, 232, fn. 4 (Martinez).) A substantial increase in risk
remained the requirement only for crimes committed prior to the effective date of the
statute. (See People v. Vines (2011) 51 Cal.4th 830, 869 & fn. 20; People v. Robertson
(2012) 208 Cal.App.4th 965, 981.)


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“must be considered in the context of the totality of its circumstances.” (People v.
Dominguez (2006) 39 Cal.4th 1141, 1152.)
       Defendant contends that only the first prong need be considered here, suggesting
that the only reasonable conclusion from the totality of the circumstance was that the
movement of Mirza to the back room was merely incidental to the robbery. However,
defendant’s approach fails to take in the totality of the circumstances, as it is narrowly
focused on the circumstance that Mirza was moved to another room of the same business.
Defendant observes that some courts have found that the movement of a victim within a
business to be incidental to a robbery. However, in the cases cited by defendant, the
movement was considered incidental because it was no greater than that necessary to
facilitate the theft and did not substantially increase the risk of harm to the victim over
that inherent in the robbery. (See People v. Morrison (1971) 4 Cal.3d 442, 443; People v.
Williams (1970) 2 Cal.3d 894, 899-900, 902-903; People v. Killean (1971) 4 Cal.3d 423,
424; People v. Smith (1971) 4 Cal.3d 426, 427; People v. John (1983) 149 Cal.App.3d
798, 805-806.)
       In fact, there is no “rigid ‘indoor-outdoor’ rule” that renders the movement of a
victim within the same premises incidental as a matter of law. (People v. James (2007)
148 Cal.App.4th 446, 455-456.) Further, there is no minimum distance a victim must be
moved to satisfy the first prong of the test. (Martinez, supra, 20 Cal.4th at p. 232.)
Movement may be incidental to a crime if it is insubstantial and intended solely to
facilitate the commission of the crime. (People v. James, at p. 453.) For example,
movement of two bank employees from a public area into the area of the vault which
required two employees to open, was found to be incidental to the robbery. (People v.
Washington (2005) 127 Cal.App.4th 290, 299-301.) A hypothetical example of
incidental movement was given in Daniels: “‘A enters a liquor store and orders the clerk,
who is stocking the shelves, to go to the cash register and hand over the money. The
clerk moves ten feet to the cash register and turns over the money to A . . . .’ [Citation.]”
(Daniels, supra, 71 Cal.2d at p. 1134, fn. 8.)



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       Defendant relies primarily on a comparison with the facts of People v. Hoard
(2002) 103 Cal.App.4th 599, in which the defendant moved two employees 50 feet to the
back office of a jewelry store and tied them up, and the movement was found to have no
apparent purpose other than to facilitate the robbery. Defendant argues that securing
Mirza in the back room had no purpose other than having free access to the premises in
order to search for as much money as he could find. He thus concludes that the
movement was merely incidental to the robbery. Defendant oversimplifies the analysis in
Hoard, in which the court also considered the absence of any substantially increased risk
of harm to the victims posed by the movement. (Id. at p. 607.)
       In any event, the movement of Mirza was neither insubstantial nor intended solely
to facilitate the commission of the crime. The evidence did not merely show that Mirza
was simply moved out of sight to keep him out of view or from interfering while
defendant grabbed as much money as he could. He was moved a substantial distance
from the public area of the store, through two sections of hallway to a secluded room, so
that defendant could violently interrogate him regarding the location of money and about
the surveillance cameras, and ultimately eliminate him as a witness to the robbery. The
movement of Mirza was substantial and excessive under the circumstances, and it clearly
increased his risk of harm over and above facilitating the grabbing of money. It thus
cannot be deemed merely incidental to robbery. (Daniels, supra, 71 Cal.2d at pp. 1138-
1139; Washington, supra, 127 Cal.App.4th at p. 299.) We conclude from all the
circumstances that the evidence was substantial, such that a reasonable trier of fact could
find the defendant guilty of kidnapping for robbery beyond a reasonable doubt.
II. Section 654
       Defendant contends that the consecutive sentence imposed as to count 3 must be
stayed pursuant to section 654.
       “An act or omission that is punishable in different ways by different provisions of
law shall be punished under the provision that provides for the longest potential term of
imprisonment, but in no case shall the act or omission be punished under more than one
provision.” (§ 654, subd. (a).) Section 654 prohibits punishment for two crimes arising


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from an indivisible course of conduct. (People v. Hester (2000) 22 Cal.4th 290, 294.)
“Whether a course of criminal conduct is divisible and therefore gives rise to more than
one act within the meaning of section 654 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.” (Neal v. State of
California (1960) 55 Cal.2d 11, 19, disapproved on other grounds by People v. Correa
(2012) 54 Cal.4th 331, 334, 336.)
       “Because of the many differing circumstances wherein criminal conduct involving
multiple violations may be deemed to arise out of an ‘act or omission,’ there can be no
universal construction which directs the proper application of section 654 in every
instance. [Citation.]” (People v. Beamon (1973) 8 Cal.3d 625, 636-637 (Beamon).)
Thus, whether a course of criminal conduct is divisible presents a factual issue for the
trial court, and we will uphold its ruling if supported by substantial evidence. (People v.
Coleman (1989) 48 Cal.3d 112, 162.) “Whether section 654 applies in a given case is a
question of fact for the trial court, which is vested with broad latitude in making its
determination. [Citations.] Its findings will not be reversed on appeal if there is any
substantial evidence to support them. [Citations.] We review the trial court’s
determination in the light most favorable to the respondent and presume the existence of
every fact the trial court could reasonably deduce from the evidence. [Citation.]”
(People v. Jones (2002) 103 Cal.App.4th 1139, 1143.)
       Here, the trial court found that defendant intended two separate robberies, one to
steal from the shop and one to steal Mirza’s wallet. It was on the basis of the wallet
robbery that the court convicted defendant of count 3 and found section 654 inapplicable.
Implicit in the court’s finding is that the two robberies were incident to separate
objectives. To support his contention that the trial court erred, defendant relies on the
rule that the mere taking of multiple items in the course of a robbery does not create
multiple robberies subject to separate sentences. (See People v. Bauer (1969) 1 Cal.3d




                                              9
368, 377-378.)3 Citing Beamon, supra, 8 Cal.3d at pages 639-640, and other cases
decided on their particular facts, defendant observes that multiple punishment for
kidnapping for robbery and for committing the underlying robbery has often been barred.
(See also People v. Milan (1973) 9 Cal.3d 185, 197; People v. Thomas (1994) 26
Cal.App.4th 1328, 1335-1336; People v. Davis (1987) 191 Cal.App.3d 1365, 1368-1369.)
       The application of section 654 depends upon the circumstances of the particular
case; for example, as respondent notes, “multiple punishment may be imposed where the
defendant commits one offense with one intent, then, as an afterthought, forms the
independent intent to commit a second offense. [Citations.]” (People v. Douglas (1995)
39 Cal.App.4th 1385, 1393.) Thus, the facts may demonstrate separate objectives even
though they were carried out simultaneously. (People v. Latimer (1993) 5 Cal.4th 1203,
1211-1212.) In Latimer, the California Supreme Court cited with approval an example
more analogous to the facts of this case than those cited by defendant. (Id. at p. 1212,
citing People v. Porter (1987) 194 Cal.App.3d 34, 37-39 (Porter).) In Porter, the
defendant robbed the victim of his wallet where the victim’s ATM card was found. The
defendant then forced the victim to go to a nearby ATM to obtain more money. (Porter,
supra, at p. 38.) The court held: “A reasonable inference from the record is that
appellant and his companion initially planned only to rob the victim of the contents of his
wallet, but thereafter came up with a new idea: kidnapping the victim to his bank to
compel him to withdraw money from his account by means of what they thought was an
automated teller card. [Citation.]” (Ibid.; also cf. People v. Smith (1992) 18 Cal.App.4th
1192, 1197-1198.)
       Similarly here, substantial evidence supports the trial court’s implied finding that
defendant formed a new objective after kidnapping Mirza for the purpose of stealing the
store’s money. Between each of several searches of the store, defendant returned to
Mirza, demanded to know where more money was kept, and threatened to kill him. After

3      Defendant relies on People v. Brito (1991) 232 Cal.App.3d 316, to illustrate this
point. As that case did not involve section 654 or multiple punishment, it is unhelpful
here.

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Mirza repeatedly said that he did not know, defendant announced what appeared to be an
alternative objective: “Okay. If you don’t know the money, then I’m going to check
your pants. . . . Do you have some money?” Defendant indicated his frustration with
Mirza’s ignorance of the whereabouts of the store’s money by stabbing him in the neck
after he said, “You know the money. You work here.” A reasonable inference may be
drawn from defendant’s actions and his words, particularly “Okay” and “then,” that
defendant intended to steal money only from the store, but decided to steal from Mirza
only after he became frustrated with Mirza’s responses. We conclude that the
circumstances of this case support the trial court’s ruling that section 654 did not apply to
count 3.
III. Additional custody credit
        Defendant contends that the trial court incorrectly calculated the number of days
spent in custody prior to sentencing. Respondent agrees. “Calculation of custody credit
begins on the day of arrest and continues through the day of sentencing. [Citation.]”
(People v. Rajanayagam (2012) 211 Cal.App.4th 42, 48.) Defendant was arrested
August 23, 2012, and sentenced June 26, 2013. He was thus entitled to actual custody
credit of 308 days, not the 306 days calculated by the trial court. Defendant was entitled
to 15 percent of that number in conduct credit, which comes to 46 days, not the 45 days
awarded. (See § 2933.1, subd. (a).) As this was clerical error, we modify the judgment
to add three additional days of credit. (See People v. Duran (1998) 67 Cal.App.4th 267,
270.)




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                                      DISPOSITION
       The judgment is modified to reflect an award of 308 days of actual custody credit,
plus 46 days of conduct credit, for a total of 354 days of presentence custody credit. As
modified and in all other respects, the judgment is affirmed. The trial court is directed to
prepare an amended abstract of judgment reflecting the modified presentence custody
credit, and to forward a copy of the amended abstract to the Department of Corrections
and Rehabilitation.
       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.



                                                  ____________________________, J.
                                                  CHAVEZ

We concur:



__________________________, P. J.
BOREN



__________________________, J.*
FERNS




________________________________________________________________________
* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.


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