Filed 8/12/16 P. v. Jackson CA3
                                           NOT TO BE PUBLISHED
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
                                      THIRD APPELLATE DISTRICT
                                                     (Sacramento)
                                                            ----




THE PEOPLE,                                                                                  C077072

                   Plaintiff and Respondent,                                     (Super. Ct. No. 13F03496)

         v.

KHALIL OSHAR JACKSON et al.,

                   Defendants and Appellants.




         Convicted in a number of robberies in south Sacramento in May 2013, defendants
Khalil Oshar Jackson and Nico Maurice Pagan appeal, contending mostly that the
evidence was insufficient to support some of their convictions. Jackson also contends he
was denied one day of presentence custody credit. We agree with Jackson regarding the
custody credit and agree with Pagan regarding two of his four convictions but otherwise
find the evidence sufficient. Accordingly, with respect to Jackson, we will modify the
judgment and affirm it as modified. With respect to Pagan, we will reverse his



                                                             1
convictions on counts six and seven, modify his sentence accordingly, and affirm the
judgment as modified.
                  FACTUAL AND PROCEDURAL BACKGROUND
                  The Robbery Of Suzie’s Adult Bookstore -- May 9, 2013
       At approximately 1:00 a.m. on May 9, 2013, Robert Schrader, who was taking his
lunch break from his job working security at Suzie’s Adult Bookstore at Florin and
Franklin, was on his way to his car at the far end of the parking lot when he saw three
men standing together at the front of the parking lot. When Schrader was about 100 to
150 feet from the front door of the store and probably about three feet from the driver’s
door of his car, one of the men came up to him, put a pistol to his side, and told him to
walk back inside the store, which he did. All three men had their faces partially covered
and were carrying guns. One of them had a long shotgun.
       Once inside the store, Schrader was instructed to go behind the “cash wrap” and
lie face down, which he did. One of the men with a pistol ordered the employee working
the cash register, Richard Abodeely, to put the money from the register into a bag.
Abodeely put approximately $700 from two registers and from underneath one of the
registers into the bag.
       According to Abodeely, the barrel of the shotgun “looked a little bit longer than
the average shotgun would look.” According to another person in the store at the time of
the robbery (Robert Gillies), the gun appeared to be a 12-gauge shotgun with a ribbed
barrel. Still photographs taken from a surveillance video recorded inside the store during
the robbery show a man wearing a grey hooded sweatshirt and a white shirt covering the
lower half of his face holding a long-barreled shotgun. Other photographs show this
person wearing dark sweat pants with white stripes and athletic shoes.
       A week after the robbery, Sacramento County Sheriff’s Detective Mike French
obtained the surveillance video from the store and familiarized himself with the shotgun,


                                             2
the athletic shoes, and the exposed portion of the face of the person who held the shotgun.
At trial, he described the shoes as “a unique pair of athletic high-top basketball-type
shoes” that “were multicolored with a unique design on the sides, as well as having a
white sole.”
       When Detective French later learned that Jackson had been arrested, and that
Jackson and his partner were in possession of a full-length shotgun, Detective French
believed there was a very good possibility the shotgun could be related to the one used in
the bookstore robbery because robberies committed with shotguns are relatively rare.
Accordingly, on July 1, 2013, Detective French obtained from a detective with the
Sacramento Police Department the shotgun and photographs of the shoes Jackson was
wearing when he was arrested. When he compared the shoes Jackson was wearing with
those shown in the surveillance video, they appeared to him “to be one and the same from
every angle that you could view them.”
                    The Robbery Of Lichine’s Liquors -- May 21, 2013
       Around 9:00 p.m. on May 21, 2013, Edward Cooper and Gerald Okumura were
working at Lichine’s Liquor on South Land Park Drive near Florin Road, when two men
entered the store. Both men had shirts covering their faces, and one of them had a long-
barreled, 12-gauge pump shotgun. The man with the shotgun asked, “Where is the
money?” Okumura opened the cash register, and the other man (whom the parties
stipulated was Jeremiah Botley) went behind the counter and dumped the bills and the
coins from the register drawer into a bag or a shirt. The two men then ran out the door.
                             The Traffic Stop -- May 21, 2013
       Around 9:15 p.m. on May 21, 2013, Sacramento Police Detective John Montoya
was working a uniformed patrol assignment in a marked police car in south Sacramento
when he noticed a white Acura Integra traveling southbound on 24th Street make a left
turn onto eastbound Meadowview Road at a rate of speed faster than surrounding traffic.


                                             3
At the time, Detective Montoya was northbound on 24th Street, getting ready to turn
eastbound on Meadowview. As his was the first car at the limit line, he figured that the
occupants of the Integra would have had to see him.
       Detective Montoya saw the Integra travel eastbound on Meadowview for a
distance of 50 to 100 yards and then very quickly make a U-turn in front of an apartment
complex and drive back westbound toward 24th Street. The detective followed. At the
corner of Meadowview and 24th, the Acura turned right onto 24th without stopping at a
red light, then very quickly pulled into the parking lot of a liquor store. Detective
Montoya pulled in behind them.
       There were three men in the Acura. The driver was Pagan. Jackson was in the
right front passenger seat, and Botley was the rear passenger. Detective Montoya patted
them all down for weapons but did not find any. He later placed Pagan in the back of his
patrol car, where Pagan can be seen on video counting bills that he removed from his
pocket. About 18 minutes later, Pagan was still in the back of the patrol car, now with
Jackson, and Pagan can be seen on video removing a handful of coins from his pocket
and passing them back and forth from one hand to the other.
       Detective Montoya did not find a shotgun in the Acura.
                        The Robbery Of 7-Eleven -- May 22, 2013
       During the nighttime on May 22, 2013, a man named Jaspal (no other name) was
working at a 7-Eleven on 43rd Avenue. At some point, a man came in who caught
Jaspal’s attention because he was looking around and talking on the phone. The man
eventually asked Jaspal to pay him a dollar for a scratch-off lottery ticket, and when
Jaspal opened the cash register to get the money, the man leaned forward to look into the
cash drawer. Right after the man left, two other men entered the store; one was wearing a
black Spider-Man mask and the other had his face covered with a handkerchief. The man




                                              4
in the mask showed Jaspal part of a gun in his pocket and asked Jaspal to open the
register and give him money, which Jaspal did.
                       The Robbery Of Food Stop -- May 24, 2013
       On the afternoon of May 24, 2013, Umair Aslam was working the cash register at
Food Stop in south Sacramento, off of Meadowview Road and Amherst Street, when two
men -- one carrying a “very large shotgun” and the other carrying what appeared to be a
handgun -- entered the store and robbed him. Both men had their faces covered with T-
shirts wrapped around their heads. Aslam put the money in a bag, and the men ran out.
Aslam followed and saw a white Acura, probably a late ‘90’s model Integra, speed off.
Surveillance video from the store showed that the two men got out of a white Acura
before they entered the store for the robbery.
              The Attempted Robbery Of The Arco AM/PM -- May 30, 2013
       At around 11:00 p.m. on May 30, 2013, Sacramento Police Officer Ryan
Trefethen was on patrol in south Sacramento when he noticed a dark-colored SUV
without any taillights illuminated pulling around the back of the Arco AM/PM gas station
on the northwest corner of Florin Road and Amherst Street. Officer Ryan turned north on
Amherst and looked behind the gas station but did not see the SUV, so he intended to just
keep driving north when he saw two people walking southbound toward the gas station
on the sidewalk on the west side of the street. The two individuals had hooded
sweatshirts pulled over their heads and white shirts covering their faces. As Officer
Trefethen watched the two individuals continue toward the gas station, he saw that the
“tall skinny” one -- whom Officer Trefethen identified at trial as Jackson -- was wearing
jeans and shoes that appeared to match pictures he had seen from an information bulletin
on the recent robberies in the area, including Lichine’s Liquor, Food Stop, and Suzie’s
Adult Book Store.




                                             5
         Officer Trefethen called dispatch to report the suspects, then made a U-turn. As
he did so, he lost sight of the two individuals momentarily as they were walking past a
shrub. When he regained sight of them, he saw them enter the property of the gas station,
then head toward the sidewalk on Florin Road. The second individual (Ronnie Pannell)
sat down on a bus stop bench, and Jackson walked westbound along Florin. Eventually,
another officer pulled up to the bus stop and Officer Trefethen pursued Jackson,
apprehending him at the corner of Florin Road and Freeport Boulevard. The officer did
not find any weapons on Jackson but did find a white T-shirt under the collar of his
hooded sweatshirt. Later, he found a blue walkie-talkie in Jackson’s pants pocket tuned
to channel 22.
         After placing Jackson in the back of a patrol car and seeing that Pannell was in the
back of another, Officer Trefethen retraced the course of the two men to see if they had
dropped any contraband or weapons. When he reached the shrub where he had lost sight
of them momentarily, he found a full-length pump shotgun sitting on top of the shrub.
         Kathleen Boyd, a forensic investigator with the Sacramento Police Department,
obtained 16 latent prints from the shotgun. Kathleen Modeste, a latent print examiner
with the department, matched two of the latent prints to Jackson and two of the prints to
Pagan.
                                   Postarrest Investigation
         Pagan was stopped and arrested on May 31, 2013, in a white Acura Integra. On
the front passenger seat of the Integra was a blue walkie-talkie tuned to channel 22 that
appeared identical to the walkie-talkie found on Jackson the day before.
         Sacramento Police Detective Jimmy Lee Vigon showed Pagan an image of a
person taken from surveillance video at the Food Stop on May 24, just before the
robbery, and Pagan admitted it was him. Detective Vigon also testified there were “some
very striking similarities between” the white car observed in connection with the Food


                                               6
Stop robbery and the white Acura Integra Pagan was driving when he was stopped and
arrested that led the detective to believe they were the same vehicle. When Detective
Vigon showed Pagan an image of the white car from the Food Stop video, Pagan initially
identified it as his girlfriend’s car but later said it was not and, “out of the blue,” told
Detective Vigon, “you’re not gonna trick me into admitting I drove anybody there to do a
robbery.”
       On June 13, 2013, Sacramento Police Detective Mike Mullaly was at the 7-Eleven
on 43rd Avenue on another matter, when the store manager mentioned to him that the
store clerk had seen someone suspicious in the store before the robbery on May 22 who
could be seen on the surveillance video. Detective Mullaly looked at the video and
recognized the person as Pagan.
       Detective Mullaly also conducted an investigation into some robberies that were
committed by a man named Greg Gadlin. During a search of the bedroom in Gadlin’s
residence, a black Spider-Man mask was found. On May 6, 2013, Pagan had answered
the door at Gadlin’s apartment when a parole agent came looking for Gadlin, telling the
agent that his “homeboy” was not there.
                           Charges, Convictions, And Sentencing
       Jackson was charged with the attempted robbery of the Arco AM/PM gas station
(count one), the robbery of Suzie’s (counts three and four), the kidnapping of Schrader
(count five), and the robbery of Lichine’s Liquor (counts six and seven). Pagan was
charged with the robbery of Food Stop (count two), the robbery of Lichine’s Liquor
(counts six and seven), and the robbery of 7-Eleven (count eight). The information also
alleged various firearm enhancements and a prior serious felony conviction as to Pagan.
       The jury found both defendants guilty of all charges and found all the firearm
enhancement allegations true. The trial court found that Pagan had a prior serious felony




                                                7
conviction. The court sentenced Jackson to 29 years in prison and Pagan to 18 years in
prison. Both defendants timely appealed.
                                       DISCUSSION
                                              I
                                Sufficiency Of The Evidence
                                              A
                                    Standard Of Review
       “Our role in reviewing the sufficiency of the evidence in a criminal case is a
limited one. [Citation.] We examine the entire record in the light most favorable to the
judgment below to determine whether it discloses substantial evidence such that any
rational trier of fact could find the essential elements of the crime beyond a reasonable
doubt. [Citations.] Substantial evidence is ‘ “evidence which is reasonable, credible, and
of solid value.” ’ [Citation.] Although ‘mere speculation cannot support a conviction’
[citation], the trier of fact is entitled to draw reasonable inferences from the evidence and
we will ‘ “ ‘presume in support of the judgment the existence of every fact the trier could
reasonably deduce from the evidence.’ ” ’ [Citations.] [¶] The standard of review
remains the same in a case based upon circumstantial evidence. [Citation.] ‘ “[W]e must
accord due deference to the trier of fact and not substitute our evaluation of a witness’s
credibility for that of the fact finder. [Citations.]” [Citation.]’ [Citation.] We must
decide whether the circumstances reasonably justify the jury’s findings, but ‘our opinion
that the circumstances also might reasonably be reconciled with a contrary finding would
not warrant reversal of the judgment.’ ” (People v. Bohana (2000) 84 Cal.App.4th 360,
367-368.)
       Evidence is substantial if “a reasonable and impartial mind could justifiably draw
the same inferences therefrom that the jury necessarily drew in order to arrive at its
verdict,” and “evidence does not become unsubstantial simply because other reasonable


                                              8
minds might differ as to what inferences should be drawn therefrom, or because this court
as a trier of fact might have drawn different inferences.” (People v. Bertholf (1963) 221
Cal.App.2d 599, 603.)
                                              B
                    Jackson -- The Robbery Of Suzie’s Adult Bookstore
       Jackson concedes the evidence was sufficient to convict him of attempting to rob
the Arco AM/PM gas station (count one) and of robbing Lichine’s Liquor (counts six and
seven), but he contends the evidence was insufficient to convict him of robbing Suzie’s
Adult Bookstore or kidnapping Schrader during that robbery. In Jackson’s view, “Taken
in the light most favorable to the verdict, all that connected [him] to the Suzie’s incident
was security footage showing a masked Black man carrying a shotgun that looked similar
to the shotgun [he] later used, and that the masked man was wearing typical looking
sneakers similar to those [Jackson] was apprehended wearing.” We disagree.
       Ten years ago, this court explained that “to prevail on a sufficiency of the
evidence argument, the defendant must present his case to us consistently with the
substantial evidence standard of review. That is, the defendant must set forth in his
opening brief all of the material evidence on the disputed elements of the crime in the
light most favorable to the People, and then must persuade us that evidence cannot
reasonably support the jury’s verdict. [Citation.] If the defendant fails to present us with
all the relevant evidence, or fails to present that evidence in the light most favorable to
the People, then he cannot carry his burden of showing the evidence was insufficient
because support for the jury’s verdict may lie in the evidence he ignores.” (People v.
Sanghera (2006) 139 Cal.App.4th 1567, 1574.) Though we (and other courts) have had
many occasions to repeat these principles in the decade since Sanghera, “[n]o one seems
to listen.” (Overton v. Vita-Food Corp. (1949) 94 Cal.App.2d 367, 370.)




                                              9
       The argument by Jackson’s appellate attorney that all that connected Jackson to
the Suzie’s robbery and kidnapping were some vague similarities between (1) the shotgun
that was used in that incident and the gun that was later found discarded near the Arco
AM/PM gas station and (2) the “typical looking sneakers” worn by one of the robbers
and by Jackson when he was arrested for attempting to rob the gas station is not, even by
the wildest stretch of the imagination, sufficient to comply with Sanghera. And as in
Sanghera itself, support for the jury’s verdict here lies in the evidence Jackson’s attorney
ignores.
       Take, for instance, the shoes. Counsel asserts that the shoes shown in the video
from the Suzie’s robbery on the person carrying the shotgun “are nothing more than
typical sneakers. There is nothing distinctive about them.” But that is only counsel’s
subjective characterization of them, which is directly contrary to the evidence admitted at
trial. As we have explained, at trial Sacramento County Sheriff’s Detective Mike French
described the shoes worn by the robber with the shotgun as “a unique pair of athletic
high-top basketball-type shoes” that “were multicolored with a unique design on the
sides, as well as having a white sole.” He further testified that when he compared those
shoes “to the shoes that Khalil Jackson was . . . wearing at the time of his arrest, they
appear to be one and the same from every angle that you could view them.” Detective
French then proceeded to examine the actual shoes Jackson was wearing when he was
arrested and explained to the jury the particulars in which those shoes matched the shoes
shown on the surveillance video from the Suzie’s robbery.
       We could offer similar observations about the evidence regarding the distinctive
characteristics of the shotgun. We could also explain how the evidence that Jackson
participated in the robbery of Lichine’s Liquor (which Jackson does not contest) is
further supportive of the jury’s verdict that he participated in the robbery of Suzie’s using
the very same shotgun. But it is not our job to explain to Jackson, or to Jackson’s


                                             10
appellate attorney, how the evidence supports the jury’s verdicts -- at least, not in the
absence of a legally proper argument as to why the evidence does not do so. Here,
Jackson’s appellate attorney has not offered any such argument. Viewed in the light most
favorable to the jury’s verdicts, the evidence was sufficient for the jury to find that
Jackson was the man carrying the shotgun during the robbery of Suzie’s.
                                               C
                                 Jackson -- The Kidnapping
       Jackson contends that even if there was sufficient evidence that he was the person
who wielded the shotgun in the bookstore robbery, his conviction for the kidnapping of
Schrader “must still be reversed for lack of substantial evidence that the victim was
moved a legally substantial distance.” We disagree.
       “Generally, to prove the crime of kidnapping, the prosecution must prove three
elements: (1) a person was unlawfully moved by the use of physical force or fear; (2) the
movement was without the person’s consent; and (3) the movement of the person was for
a substantial distance.” (People v. Jones (2003) 108 Cal.App.4th 455, 462.) To
constitute kidnapping, “ ‘the victim’s movements must be more than slight [citation] or
“trivial” [citation], they must be substantial in character . . . .’ ” (People v. Martinez
(1999) 20 Cal.4th 225, 233, quoting People v. Stanworth (1974) 11 Cal.3d 588, 601.)
“[I]n determining whether the movement is ‘ “substantial in character” ’ [citation], the
jury should consider the totality of the circumstances. Thus, in a case where the evidence
permitted, the jury might properly consider not only the actual distance the victim is
moved, but also such factors as whether that movement increased the risk of harm above
that which existed prior to the asportation, decreased the likelihood of detection, and
increased both the danger inherent in a victim’s foreseeable attempts to escape and the
attacker’s enhanced opportunity to commit additional crimes.” (Martinez, at p. 237.)
Also, “in a case involving an associated crime, the jury should be instructed to consider


                                              11
whether the distance a victim was moved was incidental to the commission of that crime
in determining the movement’s substantiality.” (Ibid.)
       Focusing on this last factor, Jackson contends that in this case “the movement was,
as a matter of law, slight or trivial because it was completely and merely incidental to the
robbery.” We disagree. Our Supreme Court made clear in Martinez that the
substantiality of the victim’s movements must be assessed based on the totality of the
circumstances. While the question of whether the movement was incidental to the
commission of an associated crime is one of those circumstances, it is only one. (See
People v. Bell (2009) 179 Cal.App.4th 428, 440 [jury had to take into account “(as one
factor among others) whether [the defendant’s] movement of [the victim] was merely
incidental to the [associated crime]”].)
       Thus, the question here is whether, on the evidence presented, the jurors were
foreclosed from finding that the movement of Schrader was substantial in character based
on all of the relevant circumstances. We do not believe they were. In arguing otherwise,
Jackson contends that: (1) “the movement of Schrader was all within the premises of the
bookstore; from the parking lot back into the store itself,” which “took far less than a
single minute”; and (2) “the movement of the victim was not only for a short distance,
but it was essential to the robbery” because “[t]he armed and masked perpetrators could
not walk past a security guard who they saw exiting the store that was the object of the
robbery.” Even taking these contentions as true, we do not agree that the movement of
Schrader had to be characterized as “slight” or “trivial” as a matter of law. The evidence
showed that the robbers apprehended Schrader as he was about 100 to 150 feet from the
front door of the store and probably about three feet from the driver’s door of his car. By
preventing Schrader from getting into his car and potentially leaving the vicinity of the
bookstore altogether on his lunch break, the robbers necessarily increased the risk of
harm to Schrader, as they put him back into the store, right into the middle of the armed


                                             12
robbery. At the same time, they decreased the likelihood that their crime would be
detected while it was occurring by forcing Schrader to reenter the store and lie on the
floor while they completed the robbery. Also, they increased the danger arising from
possible attempts by Schrader to interfere with the crime while it was occurring.
       Under the totality of the circumstances presented here, the jury was reasonably
justified in finding that the robbers moved Schrader a distance that was neither slight nor
trivial but was instead substantial in character. Accordingly, Jackson’s conviction for
kidnapping is supported by substantial evidence.
                                             D
                        Pagan -- The Robbery Of Lichine’s Liquor
       Pagan contends the evidence was insufficient to convict him of the two counts
(counts six and seven) relating to the robbery of Lichine’s Liquor because there was no
substantial evidence that he had the intent to aid and abet Jackson and Botley -- the
perpetrators of the Lichine’s Liquor robbery -- before or during the carrying away of the
“loot” to a place of temporary safety. According to Pagan, Jackson and Botley “had
reached a temporary place of safety prior to the traffic stop, because there was no flight,
no stolen property or weapon found inside the car, and there was no investigation into the
robbery at the time of the traffic stop.” For the reasons set forth below, we agree with
Pagan that the evidence was insufficient to support a finding that he aided and abetted
Jackson and Botley in their robbery of Lichine’s Liquor. Accordingly, we will reverse
Pagan’s two convictions related to that robbery (counts six and seven) and modify his
sentence accordingly.
       “[T]he commission of a robbery for purposes of determining aider and abettor
liability continues until all acts constituting the robbery have ceased. The asportation, the
final element of the offense of robbery, continues so long as the stolen property is being
carried away to a place of temporary safety. Accordingly, in order to be held liable as an


                                             13
aider and abettor, the requisite intent to aid and abet must be formed before or during
such carrying away of the loot to a place of temporary safety. Therefore, a getaway
driver who has no prior knowledge of a robbery, but who forms the intent to aid in
carrying away the loot during such asportation, may properly be found liable as an aider
and abettor of the robbery.” (People v. Cooper (1991) 53 Cal.3d 1158, 1161.) “A
perpetrator has reached a place of temporary safety with the property if he or she has
successfully escaped from the scene, is no longer being pursued, and has unchallenged
possession of the property.” (CALCRIM No. 1603.) “Whether a defendant has reached
a place of temporary safety is a question of fact for the jury.” (People v. Johnson (1992)
5 Cal.App.4th 552, 559.)
       Under the foregoing principles, for the jury to find Pagan guilty as an aider and
abettor of the robbery of Lichine’s Liquor, there had to be substantial evidence from
which the jury could reasonably conclude that Pagan: (1) served as the getaway driver
for Jackson and Botley; and (2) formed the intent to aid and abet the robbery before
Jackson and Botley had successfully escaped from the scene of the robbery, were no
longer being pursued, and had unchallenged possession of the money taken in the
robbery. We conclude the evidence here was not sufficient to support that conclusion.
       The evidence showed that the robbery of Lichine’s Liquor, which is located near
the intersection of Florin Road and South Land Park Drive, occurred “around 9 o’clock.”
Approximately 15 minutes later, “around 9:15,” Detective Montoya saw Pagan making a
turn at a rate of speed faster than surrounding traffic at the intersection of 24th Street and
Meadowview Road.1 No evidence was presented about where Jackson and Botley were




1      Detective Mullaly testified that “it was determined to be about 24 minutes”
“between the robbery at the Lichine’s Liquor store and the vehicle stop,” but the basis for
that determination was not supplied to the jury, and other evidence supports the

                                              14
during those 15 minutes, and no evidence was presented about where Pagan was during
that same period or at the time of the robbery. Also, there was no direct evidence that
Pagan knew Jackson and Botley were going rob the liquor store and no direct evidence
that he intended to help them do so by serving as their getaway driver. Under these
circumstances, it is reasonably possible that Pagan had no prior knowledge of the robbery
and that Jackson and Botley had already reached a place of temporary safety -- in that
they had successfully escaped from the store on foot, were not being pursued, and had
unchallenged possession of the stolen money -- before they ever got into Pagan’s car.
Thus, the evidence was insufficient to support Pagan’s conviction as a getaway driver on
an aiding and abetting theory.
       The People contend that “Pagan’s driving conduct demonstrated that he was still
acting as the getaway driver for the two robbers” when Officer Montoya encountered
Pagan’s vehicle at the intersection of 24th Street and Meadowview Road because Pagan’s
driving “demonstrate[d] that he was trying to avoid contact with the police.” The People
also rely on the fact that “Pagan was in possession of a large amount of cash and coins
when he was stopped by Officer Montoya,” that Pagan’s fingerprints were found on the
shotgun that might have been used in the robbery, and that Pagan was involved in the 7-
Eleven and Food Stop robberies days later.
       With respect to Pagan’s driving, the People fail to point to any substantial
evidence that would support a finding that Pagan’s vehicle was in continuous flight from
the scene of the robbery when Officer Montoya first saw that vehicle turning on to
Meadowview Road from 24th Street. No evidence was presented that Pagan’s vehicle
was ever near the liquor store, nor was there any evidence regarding the distance from the
store to the intersection or any evidence of any pursuit following the robbery.


conclusion that only about 15 minutes elapsed between the robbery and Officer
Montoya’s first sighting of Pagan’s vehicle.

                                             15
Furthermore, no shotgun was found in Pagan’s vehicle. Although the jury reasonably
could have found that Pagan attempted, however briefly, to evade Officer Montoya, that
evasion was more likely attributable to the fact that Pagan knew Officer Montoya had
seen Pagan speeding while turning on to Meadowview Road than to the fact that Pagan
was in continuous flight from the scene of the robbery.
        As for the fact that Pagan could be seen on video counting bills and playing with a
handful of coins that he removed from his pocket in the back of the patrol car following
the traffic stop by Officer Montoya, the People do not point to any substantial evidence
that this money was the “loot” from the liquor store robbery. One of the store clerks
testified there was “[m]aybe a hundred, 200 bucks, around there” in the cash register at
the time of the robbery, while the other testified there was “maybe about 60, 50 bucks,
something like that.” The People assert that “[r]eview of the video [from the patrol car]
demonstrates that the amount of cash and coins taken from the [liquor store] robbery was
consistent with the amount of cash and coin on . . . Pagan’s person,” but it is not readily
apparent from the video just how much cash Pagan had. Moreover, the People do not
address why Pagan, who did not personally participate in the robbery, could have been
expected to have all of the “loot” from that robbery, with Jackson and Botley having
none.
        As for Pagan’s fingerprints on the shotgun and his involvement in two other
robberies days later, that evidence -- like all of the other evidence on which the People
rely -- is not sufficient to prove that Pagan knowingly served as the getaway driver for the
robbery of Lichine’s Liquor at a time before the robbers had successfully escaped from
the scene of the robbery, were no longer being pursued, and had unchallenged possession
of the money taken in the robbery. In short, on the evidence presented, there simply was
no substantial evidence to support Pagan’s convictions for the robbery of Lichine’s
Liquor. Accordingly, those convictions must be reversed.


                                             16
       In sentencing Pagan to an aggregate prison term of 18 years, the trial court
imposed two-year sentences on each of the convictions relating to the robbery of
Lichine’s Liquor (counts six and seven) (one-third the middle term doubled under the
three strikes law). Consequently, we will modify Pagan’s sentence by striking those two
two-year terms, leaving him with an aggregate sentence of 14 years.
                                             E
                            Pagan -- The Robbery Of 7-Eleven
       Pagan contends the evidence was insufficient to prove he aided and abetted the
robbery of 7-Eleven because the entire charge against him was “based upon speculation
that Gregory Gadlin committed the robbery.” According to Pagan, the assumption “that
Gadlin was one of the robbers, is the foundation of the charge against [Pagan], and absent
this assumption the mask found in Gadlin’s home and [Pagan] being at his residence two
weeks before the robbery is irrelevant.”
       Again, however, we find that the argument by Pagan’s appellate attorney is
contrary to the principles of Sanghera in that it does not account for all of the evidence or
view all of that evidence in the light most favorable to the jury’s verdicts. The evidence
showed that Pagan entered the 7-Eleven and behaved in a manner that was consistent
with casing the store for an upcoming robbery, including looking into the cash register
drawer. Right after Pagan left, two other men entered the store; one was wearing a black
Spider-Man mask and the other had his face covered with a handkerchief. They robbed
the store. A black Spider-Man mask was found at the residence of Gadlin, whom Pagan
described as his “homeboy.” In addition, there was the evidence that Pagan participated
in a similar manner in the robbery of Food Stop -- casing the store before the actual
robbery. Taken as a whole and viewed in the light most favorable to the jury’s verdicts,
the evidence was sufficient to support the jury’s finding that Pagan aided and abetted the
robbery of 7-Eleven.


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                                             II
                                     Custody Credits
       Jackson contends his judgment must be modified to reflect one additional day of
presentence custody credits. The People agree, and so do we. At sentencing, the trial
court stated that Jackson had “428 days actual” -- that is, 428 days in presentence
custody. In fact, Jackson spent 429 days in presentence custody, from May 30, 2013,
until he was sentenced on August 1, 2014. We will modify the judgment accordingly.
                                      DISPOSITION
       Jackson’s judgment is modified to reflect that he has 429 days of actual
presentence custody credits. As modified, Jackson’s judgment is affirmed.
       Pagan’s convictions relating to the Lichine’s Liquor robbery (counts six and
seven) are reversed, and Pagan’s judgment is modified by striking the two-year prison
term imposed on each of those convictions. As modified, Pagan’s judgment is affirmed.
       The trial court is directed to prepare amended abstracts of judgment for both
defendants and to forward those amended abstracts to the Department of Corrections and
Rehabilitation.


                                                  /s/
                                                  Robie, Acting P. J.

We concur:



/s/
Duarte, J.



/s/
Renner, J.


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