Filed 9/20/16 P. v. Shaver 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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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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or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION TWO


THE PEOPLE,                                                          B262579

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. MA063280)
         v.

RUSSELL WAYNE SHAVER et al.,

         Defendants and Appellants.



         APPEAL from a judgment of the Superior Court of Los Angeles County.
Charles Chung, Judge. Affirmed as modified.

         Christian C. Buckley, under appointment by the Court of Appeal, for Defendant
and Appellant Russell Wayne Shaver.


         Lenore O. De Vita, under appointment by the Court of Appeal, for Defendant and
Appellant Joshua Jesse Davis.

         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Margaret E. Maxwell and Tannaz
Kouhpainezhad, Deputy Attorneys General, for Plaintiff and Respondent.
                                        _________________________
       In an information filed by the Los Angeles County District Attorney, defendants
and appellants Russell Wayne Shaver (Shaver) and Joshua Jesse Davis (Davis) were
charged with kidnapping to commit another crime, to wit, robbery (count 1; Pen. Code,
§ 209, subd. (b)(1)),1 second degree robbery (count 2; § 211), attempted home invasion
robbery (count 3; §§ 664/211), and attempted first degree burglary (count 4; §§ 664/459),
with the special allegation that a person other than an accomplice was present (§ 667.5,
subd. (c)(2)).2 As to all counts, it was alleged that Davis personally used a deadly and
dangerous weapon, to wit, a Taser (§ 12022, subd. (b)(1)). It was further alleged that
Davis had suffered two prior convictions within the meaning of sections 1170.12,
subdivision (b), and 667, subdivisions (b) through (j), and one prior serious felony
conviction within the meaning of section 667, subdivision (a)(1).
       Defendants pleaded not guilty and denied the special allegations.
       Defendants were jointly tried before separate juries.
       As to counts 1 through 3, Davis’s jury found him guilty as charged and found the
deadly weapon enhancements to be true. As to count 4, Davis’s jury also found him
guilty of attempted second degree burglary and found the deadly weapon enhancement to
be true. And, Davis’s jury found that a person was present during the commission of
count 4. In a bifurcated proceeding, Davis waived his right to a trial on his priors and
admitted the prior conviction allegations.
       Davis was sentenced to 31 years to life under the “Three Strikes” law. Counts 2
through 4 were stayed pursuant to section 654.
       Likewise, Shaver’s jury found him guilty as charged as to counts 1 and 4. As to
count 2, Shaver’s jury found him guilty of the lesser included crime of grand theft (§ 487,




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

2     The information also charged Asia Adams (Adams), Shaver’s girlfriend, and
Daythron Lockley (Lockley) with the same offenses. They were not tried with
defendants.

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subd. (c)), and as to count 3, it found him guilty of the lesser included crime of attempted
grand theft (§§ 664/487, subd. (c)).
       Shaver was sentenced as follows: as to count 1, life in prison; as to count 2, one
year in county jail; as to count 3, six months in county jail; as to count 4, two years in
state prison. Counts 2, 3, and 4 were ordered to run concurrently with count 1.
       Defendants timely filed notices of appeal. On appeal, Shaver argues: (1) The
kidnapping for robbery conviction must be reduced to simple kidnapping because there
was insufficient evidence that (a) he knew that Davis intended to commit a robbery when
he effected the kidnapping, and (b) he had the requisite personal intent to aid and abet a
kidnap for robbery; (2) The jury was not properly instructed regarding aiding and
abetting kidnapping for robbery; and (3) The section 677.5, subdivision (c)(21), “person
present” allegation finding must be reversed. Shaver also joins in all arguments raised by
Davis to the extent that they accrue to his benefit. Davis argues: (1) The trial court erred
in refusing the defense request to instruct the jury with CALCRIM instructions instead of
CALJIC instructions; and (2) The trial court erred in ordering the sentences on counts 2,
3, and 4 to run concurrently with the sentence imposed on count 1 after staying the
sentences on counts 2, 3, and 4. Davis also joins in the issues raised by Shaver to the
extent that they accrue to Davis’s benefit.
       We affirm but modify the judgment.
                              FACTUAL BACKGROUND
I. Prosecution Evidence
       A. Evidence presented to both juries
       On June 6, 2014, at around 3:30 p.m., Gaddiel Velasquez (Velasquez) was
walking home with his headphones on when Davis approached him. Shaver stood about
two to three feet away and never got much further than that during Davis’s interaction
with Velasquez. Davis asked Velasquez if he had a cell phone. Because Velasquez did
not feel safe being approached by a “random person out on the streets,” Velasquez lied
and told Davis that he did not. Davis tapped on Velasquez’s pant pocket and asked what
was in it. Feeling intimidated, Velasquez pulled his cell phone out of his pocket and

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handed it to Davis. Davis texted someone, and defendants walked away with
Velasquez’s phone.
          Because defendants had Velasquez’s phone, Velasquez followed them. Davis
turned around with a Taser in his hand and, while Shaver stood two feet to Davis’s left,
Davis activated the Taser for a second. Startled and scared, Velasquez jumped back.
Davis told Velasquez, “‘You are walking with us now,’” and handed Shaver the Taser,
who put it in his pocket.
          While the men were walking, Davis took Velasquez’s satchel from his shoulder
and looked through it. Velasquez’s satchel contained an Xbox controller, two video
games, and his phone charger. Davis handed Velasquez’s satchel to Shaver, who kept it.
Shaver talked on his phone for about five minutes during their walk, but was not really
concentrating on his phone call.
          After walking for 10 minutes, a car pulled up to the men. Adams was in the
passenger seat with a male driver.3 Davis told Velasquez to get in the car and “smacked”
him in the back of the head. While Davis did this, Shaver got into the other side of the
car with Velasquez’s bag. Feeling threatened, Velasquez got into the back of the car with
defendants sitting on either side of him. Davis told Velasquez to tell the driver where he
lived. Velasquez gave the driver directions to his father’s home. Davis asked Velasquez
if anyone was home and what types of things and food he had at home.
          Once they arrived at Velasquez’s father’s home, defendants and Velasquez exited
the car. Davis told Velasquez to lie to his father and tell him that defendants were his
friends. Velasquez unlocked the front door, walked in, quickly turned around, and tried
to slam the door shut. Velasquez struggled to get the door shut while Davis tried to pry
the door open with his arm. Velasquez slammed his shoulder into the door, shut the door,
and then locked it. Velasquez, scared, ran around the house, screaming, trying to find his
father.



3         The driver seems to have been Lockley.

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       Detective Mark Donnel was assigned as the investigating officer. During his
investigation, Detective Donnel responded to a traffic stop of a tan Chevy Malibu.
Detective Donnel determined that a cell phone recovered from the Chevy Malibu
belonged to Velasquez. When Detective Donnel examined the phone, he noticed that it
had been reset and a photograph of Shaver had been made into the “wallpaper” on the
phone. The Chevy Malibu also contained numerous documents in Shaver’s name. A few
days later, the Taser was recovered from Shaver.
       B. Evidence presented to Davis’s jury
       During his interview with detectives, Davis initially claimed that he was too high
to remember what had happened. He said that his phone was dead or someone was using
it, so he asked Velasquez, who was walking towards him, to use his phone. Velasquez
told him that he did not have a phone, but Davis knew that Velasquez was lying.
Velasquez finally lent his phone to Davis, talked to defendants like they were all friends,
and walked down the street with them for five or 10 minutes. Davis told detectives that
they were going to let Velasquez walk home, but when he told them that he was going to
call the police, Davis told Velasquez, “‘We fitting to take you to your house.’”
Velasquez voluntarily walked defendants toward his house. Once their ride arrived,
Velasquez willingly got into the car with defendants.
       Davis also told detectives that he did not initially have the Taser, but that while
Velasquez was behind defendants, Davis briefly pressed the Taser button, causing it to
buzz. Davis also “jokingly” smacked Velasquez on the back of the head. Even though
Davis did not mean to bully Velasquez, he was sure that Velasquez “felt bullied ‘cause of
the situation he was in.” Davis got in the back of the car, behind the passenger seat,
Shaver sat behind the driver, and Velasquez sat between them.
       Eventually, Davis admitted that because Velasquez had games and a controller in
his backpack and looked like he had money, defendants “fish[ed] around” and asked him
what he had in his house. Davis admitted that if he had made it into the house, he would
have taken “[a]nything worth value.”



                                              5
       Once at Velasquez’s home, defendants walked Velasquez to his door. When
Velasquez opened the door, Davis put his foot right by the door at the threshold and, as
Velasquez screamed and tried to close the door, Davis instinctively put his arm out with
his hand on the door. Davis was not trying to fight with Velasquez; he just wanted to go
inside Velasquez’s house to see if there was “anything good” to take.
       Ultimately, Davis admitted to detectives that he played a part in the “whole thing.”
       C. Evidence presented to Shaver’s jury
       During Shaver’s interview with detectives, he initially denied all involvement. He
claimed that he was on the phone with his father when Davis robbed Velasquez and then
kidnapped him with the intention of robbing him at home. Eventually, Shaver admitted
that the Taser belonged to him and that Davis took it out of Shaver’s pocket before
activating it. Shaver told detectives that he “was really just letting the work be done.”
Shaver explained that he was on the phone with his father and “wasn’t really trying to say
too much ‘cause [Shaver] didn’t want [his] dad or nobody to hear shit”; he got off the
phone because they all got into the car and it was loud. While in the car, Shaver asked
Velasquez what types of valuable items were in his house and told him to act as though
defendants were his friends when they were in his home.
       Shaver told the detectives that they all got into the car to take Velasquez to his
house; the plan was to “run up in there” even though Shaver did not “want to do that
shit.” When asked what defendants wanted from Velasquez’s house, Shaver admitted
that they wanted whatever was worth money and that they intended to sell whatever they
retrieved.
       Shaver admitted that when they could not get into the house, both defendants ran
back to the car and took off to “stash” the items previously taken from Velasquez.
       Shaver also told the detectives that he told Velasquez to unlock his phone because
Shaver wanted to give it to Adams.
II. Defense Evidence
       Neither Davis nor Shaver testified or presented evidence.



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                                      DISCUSSION
Shaver’s Appeal
I. Sufficiency of the evidence of kidnapping for robbery
       Shaver argues that we should hold that he was only guilty of kidnapping for
robbery as an aider and abettor if the prosecution proved that he had knowledge of
Davis’s unlawful purpose to commit robbery and had the specific intent to aid and abet
Davis’s commission of the robbery at the time Davis commenced the kidnapping.
Although he concedes that he “eventually intended to aid and abet in a kidnapping, and
eventually knew that Davis intended to burglarize Velasquez’s home,” he contends that
the evidence was insufficient to prove that he knew that Davis intended to commit a
robbery when Velasquez’s kidnapping commenced or that he had personal independent
intent to aid the kidnapping for robbery when it commenced.
       A. Relevant law
       Evidence is sufficient to support a conviction is, “after viewing the evidence in the
light most favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.” (Jackson v. Virginia (1979)
443 U.S. 307, 319; see also People v. Hill (1998) 17 Cal.4th 800, 848–849.)
       Robbery is defined as “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.) “Any person who kidnaps or carries away any
individual to commit robbery” is guilty of kidnapping for robbery. (§ 209, subd. (b)(1).)
Kidnapping to commit robbery includes the following elements: (1) a person was
unlawfully compelled to move because of a reasonable apprehension of harm; (2) the
movement of such person was caused with the specific intent to rob when the movement
commenced; (3) the movement of the person was without the person’s consent; (4) the
movement of such person was for a distance more than slight, brief, or trivial; and (5) the
movement substantially increased the risk of harm to the person moved, over and above
that necessarily present in the crime of robbery. (See CALJIC No. 9.54; People v.
Gonzales (1994) 21 Cal.App.4th 1648, 1652–1653.) A completed robbery is not an

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element of kidnapping for robbery. (People v. Lewis (2008) 43 Cal.4th 415, 518–519,
overruled in part on other grounds in People v. Black (2014) 58 Cal.4th 912, 919.) All
that is required is that the defendant had the specific intent to commit robbery when the
kidnapping began. (People v. Davis (2005) 36 Cal.4th 510, 565–566.)
       A defendant who assists another to commit a crime is guilty as an aider and
abettor. (People v. Perez (2005) 35 Cal.4th 1219, 1225.) But, the mental state necessary
to convict a defendant as an aider and abettor is different from the mental state necessary
to convict an actual perpetrator. (People v. Mendoza (1998) 18 Cal.4th 1114, 1122.)
“The actual perpetrator must have whatever mental state is required for each crime
charged. . . . An aider and abettor, on the other hand, must ‘act 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.’ [Citation.]” (People v.
Mendoza, supra, at p. 1123.)
       B. Substantial evidence to support Shaver’s conviction4
       Here, substantial evidence supports Shaver’s conviction for aggravated
kidnapping. Velasquez testified that from the time Davis approached and initially robbed
him of his phone, Shaver stood only two to three feet away and maintained the distance
throughout Davis’s interaction with Velasquez, including when Davis activated the
Taser5 and threatened “‘You are walking with us now.’” Davis handed Shaver the Taser,
where it remained visible as a threat to Velasquez. Because defendants walked together
briefly before Davis used Shaver’s Taser to threaten and kidnap Velasquez, the jury could


4      Davis purportedly joins in this argument. But, Davis was not prosecuted as an
aider and abettor, and the thrust of Shaver’s argument is that there is insufficient evidence
to support his conviction for aiding and abetting. Therefore, this argument and analysis
do not apply to him.

5       In addition, Shaver told detectives that the Taser belonged to him and when Davis
took it out of his pocket to activate it, he “was really just letting the work be done.” The
jury could easily have understood this to mean that he knew what was going on, but he
was letting Davis do the more active part of the job.


                                             8
have inferred that during that time, defendants had discussed kidnapping Velasquez to
rob him of more than just his phone and were devising a plan to secure transportation to
Velasquez’s house. Velasquez’s testimony that Shaver was only a few feet away from
Davis and maintained control over the Taser provided additional evidence that Shaver
was actively assisting Davis.
       Velasquez also testified that while the men walked, Shaver spoke to someone on
the phone and constantly turned back to look at Velasquez. The jury could have inferred
that Shaver was making arrangements with Adams to pick up the men and take them to
Velasquez’s home, and that defendants followed through with the kidnapping only once
they knew that they had a ride to Velasquez’s home.
       Once defendants’ transportation arrived, without any prompting, Shaver, who was
holding Velasquez’s satchel, got into the backseat of the car on the opposite side of
Davis, sandwiching Velasquez between himself and Davis. The jury could have inferred
that Shaver was trying to keep Velasquez from escaping before defendants had the
opportunity to complete the kidnap for robbery.
       After Velasquez was trapped in the car, Davis asked him if there was any money
at his home; he then ordered Velasquez to tell the driver where he lived. Nothing
indicates that either the driver or Shaver was even remotely surprised at Davis’s demand,
further suggesting that they were aware of the plan the entire time.6
       Taken together, this evidence more than supports Shaver’s conviction.
II. Instructional error
       Shaver complains that two instructional errors occurred in his case. But, he did
not raise these objections below. Therefore, his argument has been forfeited on appeal
unless Shaver’s substantial rights were affected. (§ 1259.) As set forth below, there was
no instructional error; thus, Shaver’s rights were not adversely impacted.




6     In response to the detective’s question about the “plan,” Shaver responded that it
was “to run up in there,” further indicating that he knew what the plan was.

                                             9
       Shaver asserts that “the jury should have been instructed that [he] needed to form
the intent to aid and abet and kidnap for robbery before it commenced.” But, through
CALJIC Nos. 3.01 and 9.54, the jury was instructed on when Shaver’s intent as an aider
needed to be formed and that he intended to aid and abet the kidnapping.
       Next Shaver argues that the instructions did not allow the jury to find him guilty of
simple kidnapping even if Davis was convicted of kidnapping for robbery. Rather,
according to Shaver, “the jury was informed that Davis and Shaver were ‘equally guilty’
of whatever crime Davis committed if [Shaver] aided and abetted the kidnapping.”
Setting aside Shaver’s forfeiture of this argument (People v. Lopez, supra, 198
Cal.App.4th at pp. 1118–1119), the instructions as given permitted the jury to find Shaver
guilty of the lesser included offense of simple kidnapping if it concluded that he did not
possess all of the required elements of kidnap for robbery. The jury was not given
CALJIC No. 3.00 in a vacuum. It was also instructed pursuant to CALJIC Nos. 3.01
(aiding and abetting), 9.50 (kidnapping), and 9.54 (kidnapping to commit robbery). Read
together, the jury was instructed to evaluate Shaver’s mental state to determine whether
he aided and abetted the aggravated kidnapping or whether he was guilty of the lesser
included offense of simple kidnapping. We presume that the jury was capable of
understanding and correlating all jury instructions given. (People v. Martin (2000)
Cal.App.4th 1107, 1111.) It follows that if the jury determined that the evidence did not
establish all of the evidence of kidnapping for robbery, then it would have considered
whether Shaver aided and abetted a simple kidnapping.
       In his reply brief, Shaver asserts that the instructions were incorrect statements of
the law, which affected his substantial rights; thus, his counsel’s failure to object does not
bar him from raising these arguments on appeal. He is mistaken—courts have recognized
that CALJIC Nos. 3.00 and 3.01 are accurate statements of the law. (See People v. Perez,
supra, 35 Cal.4th at p. 1234; People v. Tillotson (2007) 157 Cal.App.4th 517, 532;
People v. Mejia (2012) 211 Cal.App.4th 586, 624.) And Shaver has not directed us to
any case that has held that CALJIC No. 9.54 is an incorrect statement of the law.
(Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 852.)

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       Even if the instructions were erroneous (which they were not), any error would
have been harmless. (Chapman v. California (1967) 386 U.S. 18, 24; People v. Watson
(1956) 46 Cal.2d 818, 836.) As set forth above, there was ample evidence that Shaver
aided and abetted Davis in committing kidnapping for robbery.7
III. Section 677.5, subdivision (c)(21), finding
       Shaver argues that the section 677.5, subdivision (c)(21), “person present”
allegation finding must be reversed. Davis joins in this argument. The People agree that
the section 667.5 allegation does not apply to attempted burglary and should be stricken.
       Because defendants were only convicted of attempted burglary, rather than first
degree burglary, subdivision (c)(21) of section 677.5 does not apply. (People v. Ibarra
(1982) 134 Cal.App.3d 413, 425.) Thus, the abstracts of judgment should be amended as
follows: For Shaver, the “violent felony” notation for count 4 should be deleted. For
Davis, who was convicted of attempted second degree burglary, both the “serious felony”
and “violent felony” notations should be deleted.
Davis’s Appeal
I. Instructional error
       Davis argues that the trial court erred in refusing a defense request to instruct the
jury with CALCRIM instructions, opting to use CALJIC instructions instead. Shaver
joins in that argument.8
       The adoption of CALCRIM instructions by the Judicial Council (Cal. Rules of
Court, rule 2.1050(e)) does not establish that the prior “CALJIC instructions [were]
invalid or ‘outdated,’” as Davis claims here. (People v. Thomas (2007) 150 Cal.App.4th


7     It follows that we reject Shaver’s claim that he was denied effective assistance of
counsel. (Strickland v. Washington (1984) 466 U.S. 668, 687, 697.)

8      Notably, while Davis objected to the use of the CALJIC instructions, Shaver did
not. Shaver’s challenge therefore has been forfeited on appeal. (People v. Franco (2009)
180 Cal.App.4th 713, 719.) Regardless, as set forth herein, the trial court did not err in
using the CALJIC instructions.


                                             11
461, 465.)9 “‘Nor did their wording become inadequate to inform the jury of the relevant
legal principles or too confusing to be understood by jurors.’” (People v. Lucas (2014)
60 Cal.4th 153, 294, overruled on other grounds in People v. Romero and Self (2015) 62
Cal.4th 1, 53.) “The Judicial Council’s adoption of the CALCRIM instructions simply
meant they are now endorsed and viewed as superior. No statute, rule of court, or case
mandates the use of CALCRIM instructions to the exclusion of other valid instructions.”
(People v. Thomas, supra, at pp. 465–466.) So long as the jury was properly instructed,
which it was, the trial court did not err. (Id. at p. 465.)
       In urging us to reverse, defendants argue that by not articulating a reason for
opting to use the CALJIC instructions instead of the CALCRIM instructions, the trial
court erred. But defendants direct us to no legal authority that requires the trial court to
explain why it chose one set of instructions over another.
       Finally, defendants claim that the “superiority of the CALCRIM [instructions] is
obvious for several reasons.” In support, defendants only indicate that CALJIC No. 2.00
is deficient. But, five years after the adoption of the CALCRIM, our Supreme Court has
held that CALJIC No. 2.00 correctly states the law. (People v. Livingston (2012) 53
Cal.4th 1145, 1166.) And, regardless of whether the CALCRIM approach is superior, as
already stated, the trial court did not err by giving the CALJIC instructions.
II. Sentencing of Davis
       Davis contends that the trial court erred in ordering the sentences on counts 2, 3,
and 4 to run concurrently with the sentence on count 1, after ordering the sentences on
those counts to be stayed. The People agree “that a sentence cannot be ordered to run
concurrent and stayed pursuant to section 654.”
       We agree with the parties that the sentences on counts 2, 3, and 4 should have
been stayed. (People v. Duff (2010) 50 Cal.4th 787, 796.) The abstract of judgment must
be corrected to delete the concurrent sentence notations for counts 2, 3, and 4.

9      Defendants ask us to decline to follow People v. Thomas, supra, 150 Cal.App.4th
461 on the grounds that it is outdated; it was published in 2007, five months after the
adoption of the CALCRIM. We see no basis to do so.

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                                     DISPOSITION
       The judgment is affirmed as modified. As to both defendants, the section 667.5,
subdivision (c)(21), sentencing enhancement is stricken from count 4. As to Davis, the
sentences on counts 2, 3, and 4 are stayed.
       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.




                                   _____________________________, J.
                                         ASHMANN-GERST
We concur:


______________________________, P. J.
           BOREN




______________________________, J.
           HOFFSTADT




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