Filed 12/9/13 P. v. Riley 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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,                                       E056633

v.                                                                       (Super.Ct.No. FSB1100293)

DEWAYNE MAURICE RILEY,                                                   OPINION

         Defendant and Appellant.



         APPEAL from the Superior Court of San Bernardino County. Duke D. Rouse,

Judge. (Retired judge of the San Bernardino Super. Ct. assigned by the Chief Justice

pursuant to art. VI, § 6 of the Cal. Const.) Affirmed in part; reversed in part with

directions.

         Richard de la Sota, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Meagan J. Beale, and William M.

Wood, Deputy Attorneys General, for Plaintiff and Respondent.
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                                               I

                                     INTRODUCTION1

       A jury convicted defendant Dewayne Maurice Riley of 12 offenses arising from

the gang-related robbery of about $169 from a Jack in the Box restaurant, while

accompanied by codefendant Calvin Ray Vance, a fellow gang member.2 Defendant was

the gunman. The court sentenced defendant to an aggregate prison term of 243 years

(225 years to life plus 18 years).

       On appeal defendant challenges the five convictions of aggravated kidnapping for

robbery (§ 209, subd. (b)(1), counts 1 through 5). We reverse defendant’s conviction on

count 1 for aggravated kidnapping and order the trial court to impose the stayed sentence

for robbery (§ 211) on count 6. Otherwise, we reject defendant’s contentions and affirm

the judgment.

                                              II

                                 STATEMENT OF FACTS

A. The Jack in the Box Robbery

       About 9:00 p.m. on January 18, 2011, five employees were working at a Jack in

the Box restaurant located in Colton, California: Javid Bholat, the manager; Monica

Ramirez, the cashier; Guadalupe Moreno and Carlos Melendez, both cooks; and Ariadne

Cedillo, the team leader.


       1   All statutory references are to the Penal Code unless stated otherwise.
       2 Vance’s appeal is the subject of a separate appeal, People v. Vance, E054460.


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       In addition to a kitchen area, the food restaurant has an interior manager’s office,

five by 13 feet, with two safes. The sink area is behind the office and the break room is

behind the sink area. The sink area and the break room are at the back of the restaurant.

       Bholat, Melendez and Cedillo were standing in the kitchen near the deep-fat fryer.

Near the back of the restaurant, Moreno was washing dishes at the sinks and Ramirez was

coming out of the break room. A hooded, masked man—wearing gloves and carrying a

handgun—jumped over the front counter, demanded money, and herded all five

employees into the manager’s office in the center of the restaurant. All the employees

were afraid and felt threatened.

       Bholat, the manager, testified that the gunman singled him out and, pointing the

gun, asked, “Where is the money?” Although there were two open cash registers at the

counter and the drive-through window, Bholat told him there was cash in a safe in the

office. At direction of the gunman, Bholat and the other employees went into the office.

       After Bholat opened one safe and gave the robber the small amount of money

($17) inside, the robber demanded money from the other safe. Bholat explained that it

was equipped with a 10-minute delay. When the robber objected to waiting, Bholat

instructed Cedillo to get money from the cash register at the counter. Cedillo retrieved

some cash and gave it to the robber who jumped the counter and ran out the north door of

the restaurant.

       While Bholat called 911, Cedillo watched the robber get in a black four-door

vehicle positioned outside the north door. Defendant later identified the car as a



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Chevrolet Caprice, owned by codefendant Vance’s mother. The vehicle left the

restaurant and proceeded at a high speed to the 215 freeway.

B. The Apprehension of Defendant

       The black Caprice led two Colton police officers, Gary Gruenzner and Roberto

Dimas, in a high speed chase on the freeway until the Caprice exited the freeway and

collided with a truck before stopping. After the collision, the truck driver saw a person

exit the black vehicle and take off running.

       When Dimas arrived at the scene, he watched a Black male, identified as

defendant, exit on the driver’s side and start running. The front passenger door had been

damaged and could only be opened by force. Dimas chased defendant and captured him

in the backyard of a nearby house, where he was taken into custody after a brief struggle.

The police found a black cotton glove near the scene. Defendant had a wad of cash3 in

his pocket, corresponding to the money that Cedillo had given the masked robber.

Defendant wore a pair of Nike shoes, which matched the shoe print lifted from the dining

room floor of the restaurant.

       Vance was discovered hiding next to a hedge in a nearby church courtyard. The

Caprice contained a hooded sweatshirt, various hats and gloves, and a loaded .38 special

Rosse handgun, resembling the gun used in the robbery.




       3   Forty-four $1 bills, nineteen $5 bills, and three $10 bills.

                                                4
C. Gang Evidence

       A gang expert, San Bernardino Police Officer Raymond Bonshire, testified that

defendant and Vance are both active members of the Projects criminal street gang.

Defendant and Vance both had multiple gang tattoos, indicating long-time gang

membership. The gang territory is west of the 215 freeway in San Bernardino.

       Bonshire described the history and culture of the Projects gang, its name, color,

and symbols. He explained how gang admission works and the gang’s activities. He

estimated the Projects’s membership was about 100. The primary activities of the

Projects street gang are narcotics sales, firearm possession, burglaries, robberies, and

shootings, including murders. Gang members commit crimes together. Committing a

robbery elevates a gang member’s status in several ways: it is “putting in work . . . for

the gang”; it demonstrates active membership and “good standing”; it provides money to

buy clothing and other status symbols and recruit new members; and it provides money to

finance the gang’s other activities.

       Bonshire described three predicate offenses: a 2009 grand theft committed by

gang member, Tommy Walker; two 2009 armed robberies with a gang enhancement

committed by gang member, Cedric Timmons; and two 2008 robberies committed by

gang member, Broderick Moore.

       Based on hypothetical questions, Bonshire opined that the Jack in the Box crimes

and flight were committed by gang members working together and would enhance their

status and reputations by demonstrating their willingness to commit crimes with other

gang members, their disregard of the law, and their willingness to do anything for the

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gang. Choosing to commit the crimes outside the gang’s territory facilitates commission

of the crimes because it occurs away from the local police department familiar with the

gang, its members, and the gang injunction. Bonshire said that the crimes would be

discussed within the gang community and the community in general, thereby enhancing

the gang’s reputation and the fear and intimidation experienced by potential crime

victims and witnesses. He also testified that gang members typically order victims to

move around during robberies in order to intimidate them.

                                             III

                              AGGRAVATED KIDNAPPING

       Defendant challenges the sufficiency of evidence on all five of his convictions for

aggravated kidnapping for robbery.4 (§ 209, subd. (b)(1).) Under section 209,

aggravated kidnapping, requires “movement of the victim . . . beyond that merely

incidental to the commission of, and increases the risk of harm to the victim over and

above that necessarily present in, the intended underlying offense.” (§ 209, subd. (b)(2);

In re Earley (1975) 14 Cal.3d 122, 128.) Defendant contends the movement of all five

employees was insufficient evidence of asportation because it was “merely incidental” to

accomplishing the robbery and did not increase the risk of harm to them. As discussed

below, we conclude that the conviction on count 1 for aggravated kidnapping of Bholat,

the manager, should be reversed but the remaining convictions are affirmed.




       4   Implicit in our analysis is our conclusion that defendant committed kidnapping.

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       In People v. Daniels (1969) 71 Cal.2d 1119, 1138, the California Supreme Court

cited a comment by “[t]he learned draftsmen” of the Model Penal Code about the

“‘absurdity of prosecuting for kidnapping in cases where the victim is forced into his own

home to open the safe, or to the back of his store in the course of a robbery.’” The court

reviewed this issue comprehensively in People v. Vines (2011) 51 Cal.4th 830, 869-871,

in which defendant moved the employees between 80 and 200 feet and locked them

downstairs in a walk-in freezer to accomplish a robbery. Vines, at page 869, applied a

deferential standard of review. The Vines court commented that the two elements of

incidental movement and increased risk of harm “are not mutually exclusive but are

interrelated.” (Id. at p. 870, citing People v. Rayford (1994) 9 Cal.4th 1, 12.) With

regard to the first prong, the jury considers the scope and nature of the movement—

including the actual distance a victim is moved—but there is no minimum distance.

(Vines, at p. 870.) The second prong involves consideration of factors such as the

decreased likelihood of detection, the danger inherent in the victims’ foreseeable attempts

to escape, and the attacker’s enhanced opportunity to commit additional crimes. (Ibid.)

Although these principles seem fairly straightforward, California courts have applied

them differently depending on the factual circumstances.

       Some California cases have found the brief movement of robbery victims within a

business establishment or residence insufficient to constitute aggravated kidnapping:

“[I]ncidental movements are brief and insubstantial, and frequently consist of movement

around the premises where the incident began.” (People v. Diaz (2000) 78 Cal.App.4th

243, 247; People v. Williams (1970) 2 Cal.3d 894 [service station attendant locked inside

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station bathroom and then moved around premises]; People v. Mutch (1971) 4 Cal.3d

389, 397-399 [movement of victims 30 to 40 feet through different rooms inside a

business]; People v. Morrison (1971) 4 Cal.3d 442, 443 [movement of victim up and

down stairs and into rooms of private residence]; People v. Smith (1971) 4 Cal.3d 426,

427 [movement of hotel clerk from office to second floor room of hotel]; People v. John

(1983) 149 Cal.App.3d 798, 804, [movement of victim through different buildings in

residence]; People v. Hoard (2002) [Fourth Dist., Div. Two] 103 Cal.App.4th 599, 607

[movement of two victims to the back office of a jewelry store]; People v. Washington

(2005) 127 Cal.App.4th 290, 295-296 [a bank officer and teller moved into a bank

vault].)

       On the other hand, in cases that are factually similar, courts have concluded that

brief movement was not incidental to robbery and increased the risk of harm to the

victims. (People v. James (2007) 148 Cal.App.4th 446, 457, [coerced movement of one

person when the intended target of the robbery was another person]; People v. Corcoran

(2006) 143 Cal.App.4th 272, 279 [movement of victims about 10 feet from outside a

bingo hall to a windowless back office].)

       In Vines, as in this case, the forcible movement of the victims was also limited to

movement inside the premises when a masked, armed robber herded a McDonald’s

restaurant manager and other employees into the manager’s office where a safe was

located. In Vines, however, the defendant also directed the victims from the front of the

store, down a hidden stairway, and into a locked freezer. The scope and nature of this

movement was not “merely incidental” to the commission of the robbery Additionally,

                                             8
the victims suffered an increased risk of harm because of “the low temperature in the

freezer, the decreased likelihood of detection, and the danger inherent in the victims’

foreseeable attempts to escape such an environment.” (People v. Vines, supra, 51 Cal.4th

at p. 871.) On this record, the Supreme Court concluded sufficient evidence of

asportation supported defendant’s convictions for aggravated kidnapping.

       It is difficult to extract a rule from these cases which seem to reach opposing

conclusions. Nevertheless, a significant factor in all the cases is whether the

movement—whatever the distance—was necessary to obtain control of the property and

facilitate the robbery.

       In People v. Hoard, supra, 103 Cal.App.4th at pages 601-602, 607, the defendant

entered a jewelry store and moved two female employees 50 feet at gunpoint to the back

office, where he bound them with duct tape. After confining them to the back room, he

robbed the store. In reversing the convictions for aggravated kidnapping, this court noted

that “[c]onfining the women in the back office gave defendant free access to the jewelry

and allowed him to conceal the robbery from entering customers who might have

thwarted him.” (Id. at p. 607.) Accordingly, “[d]efendant’s movement of the two women

served only to facilitate the crime with no other apparent purpose.” (Ibid.) The

asportation of the victims was “merely incidental” to the robbery and did not increase the

risk of harm.

       In People v. Washington, supra, 127 Cal.App.4th at pages 295-296, two

defendants robbed a bank. While armed with a gun, one defendant jumped over the front

counter and directed two tellers to empty the cash drawers. The second defendant, also

                                             9
armed, entered the bank manager’s office and demanded money. The manager asked a

teller to assist her in the vault. The manager and teller moved 14 or 15 feet into the vault.

In holding that the movement of both victims was incidental to the robbery and did not

increase the risk of harm, the court observed “robbery 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.” (Id. at p. 300.) Crossing thresholds

within the business to obtain property cannot elevate robbery to aggravated kidnapping.

(Ibid.) Given that the primary object of a robbery is to obtain money, the movement of

employees to that area to facilitate that crime must be deemed incidental. (Id. at p. 303.)

       Corcoran, the bingo hall robbery, recognized some distinctions in its discussion of

Hoard and Washington. In Washington, “movement was necessary to obtain the money

and complete the robbery[. I]n the present case the victims were not taken to the location

of the money the robbers sought to obtain. In Washington, ‘there was no excess or

gratuitous movement of the victims over and above that necessary to obtain the money in

the vault.’ (Washington, supra, 127 Cal.App.4th at p. 299.) In the instant case, the

movement of the victims had nothing to do with facilitating taking cash from the bingo

hall; defendant and his accomplice had aborted that aim, and their seclusion of the

victims in the back office under threat of death was clearly ‘excess and gratuitous.’”

(People v. Corcoran, supra, 143 Cal.App.4th at pp. 279-280.) Similarly, when compared

with Hoard, “the movement of the victims did not serve to facilitate the forcible

attempted taking of money from the bingo hall. Rather, it served other purposes squarely

recognized by the Supreme Court . . . as supporting a finding of a substantial increase in

                                             10
danger: removing the victims from public view, decreasing the odds that the attempted

robbery of cash from the bingo hall would be detected, increasing the risk of harm should

any victim attempt to flee, and facilitating the robbers’ escape. Indeed, there was no

purpose for moving the victims to the back office except to facilitate these aims. In

context, this movement was not merely brief and trivial; to the contrary, it substantially

increased the risk of harm beyond that inherent in the crime of attempted robbery.”

(Corcoran, at p. 280.)

        In this case, a masked, armed robber, later identified as defendant, burst into the

Jack in the Box, making demands for money. Bholat, the manager, told defendant the

money was in the safe and defendant demanded Bholat open the safe. At the same time,

the robber directed the other four employees to go into the manager’s office while Bholat

opened the safe. Because there was very little money in the safe, Bholat—not

defendant—instructed Cedillo to get money from the cash register at the counter. The

evidence shows that defendant told Bholat to retrieve money from the safe in the office to

facilitate the robbery, making the movement of Bholat incidental to the robbery of the

safe.

        Based on Vines, Corcoran, Hoard, and Washington, we conclude the brief

movement of Bholat to the office where the safe was located was incidental to the

robbery. As conceded by the People, there was no way to accomplish the robbery from

the safe except for Bholat to go into the office. Furthermore, although there was also

money in the cash register, when Cedillo went to the cash register, she was instructed to

do so by Bholat, not defendant. However, the movement of the four employees, other

                                              11
than Bholat, into the office, was not done to facilitate the robbery. Placing them in the

enclosed space of the manager’s office, out of public view, and threatened with a gun

certainly caused them to suffer the threat of increased risk of harm. Accordingly,

viewing the evidence in the light most favorable to the People (People v. James, supra,

148 Cal.App.4th at p. 453), the record was insufficient as a matter of law to support the

verdict as to count 1 (Bholat) but substantial evidence supported the kidnapping

convictions as to counts 2 through 5.

                                            IV

                                        DISPOSITION

       We reverse count 1 for aggravated kidnapping and direct the trial court to impose

the stayed sentence on count 6 and to forward a corrected abstract of judgment to the

Department of Corrections and Rehabilitation. Otherwise, we affirm the judgment.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS

                                                                CODRINGTON
                                                                                            J.

We concur:


McKINSTER
                 Acting P. J.


RICHLI
                           J.




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