Filed 2/15/18
                CERTIFIED FOR PUBLICATION



       IN THE COURT OF APPEAL OF THE STATE OF
                     CALIFORNIA

                SECOND APPELLATE DISTRICT

                       DIVISION ONE


THE PEOPLE,                            B279767

       Plaintiff and Respondent,       (Los Angeles County
                                       Super. Ct. No. YA093456)
       v.

LOUIS JAMES HUTCHINSON,

       Defendant and Appellant.


     APPEAL from a judgment of the Superior Court of Los
Angeles County, Mark S. Arnold, Judge. Affirmed in part
and reversed in part.
     Sunnie L. Daniels, under appointment by the Court of
Appeal, for Defendant and Appellant.
     Xavier Becerra, Attorney General, Gerald A. Engler,
Chief Assistant Attorney General, Lance E. Winters, Senior
Assistant Attorney General, Shawn McGahey Webb,
Supervising Deputy Attorney General, and Nima Razfar,
Deputy Attorney General, for Plaintiff and Respondent.
                      ——————————
       A jury convicted Louis James Hutchinson (Hutchinson)
of five counts of first degree residential robbery and five
counts of home invasion robbery. Hutchinson contends that
a 15-year-old girl inside the residence at the time of the
robbery—the homeowners’ daughter—could not be deemed a
victim of the robbery because she did not actually or
constructively possess any of the stolen property. We
disagree. Hutchinson also contends that his convictions on
counts 1 through 5 must be vacated. We agree. In all other
respects, the judgment is affirmed.
                         BACKGROUND
I.     Overview of Charges
       Hutchinson and codefendants Kwan Smith (Smith) and
Deavon Phillips (Phillips) were charged with five counts of
first degree residential robbery (Pen. Code,1 § 211; counts 1–
5) and five counts of home invasion robbery (§ 211; counts 6–
10).2 As to counts 6 through 10, the information alleged


     1 All further statutory references are to the Penal Code
unless otherwise indicated.
     2  Each count named a different victim. Daren Gaynair
was the named victim in counts 1 and 6. Daren’s wife,
Charlotte Jackson. was the named victim in counts 2 and 7.
Daren and Charlotte’s daughter, Daijanon, was the named
victim in counts 3 and 8. (Her name is spelled “Daijavon” in
the trial transcripts.) Daren and Charlotte’s daughter,



                              2
that Hutchinson, Smith and Phillips acted in concert and
entered an inhabited dwelling house during the commission
of the robbery. (§ 213, subd. (a)(1)(A).)
      The information also alleged as to all counts that
Hutchinson and Phillips personally used a Taser, (§ 12022,
subd. (b)(1)), as well as a firearm (§ 12022.53, subd. (b)), and
that a principal had been armed with a firearm (§ 12022,
subd. (a)(1)). The information also alleged that Hutchinson
suffered a prior strike conviction (§§ 667, subds. (b)-(i);
1170.12, subds. (a)-(d)), a prior serious felony conviction
(§ 667, subd. (a)(1)), and had served two prior prison terms
(§ 667.5, subd. (b)).
      Before trial, Smith and Phillips pleaded no contest to
the charged offenses and admitted the special allegations.
Hutchinson proceeded to jury trial. The jury convicted
Hutchinson on all counts and found true the allegation that
a principal had been armed with a firearm. As to the
allegation that Hutchinson had personally used a firearm
during the offenses (§ 12022.53, subd. (b)), the jury found it
to be not true as to counts 4, 5, 9, and 10, and deadlocked on
the other counts.3 The court declared a mistrial on the
deadlocked allegations and granted the prosecution’s

Dexenia, was the named victim in counts 4 and 9. Daren’s
mother, Shirley Sabido, was the named victim in counts 5
and 10.
     3 Following the prosecution’s case in chief, the trial
court dismissed the allegation that Hutchinson had used a
Taser (§ 12022, subd. (b)(1)).




                               3
subsequent request to dismiss them. Hutchinson admitted
the prior conviction allegations.
       The trial court sentenced Hutchinson to a total of 42
years, four months in state prison. The court used count 6
as the base term, imposed the upper term of nine years,
doubled to 18 years for Hutchinson’s prior strike conviction,
plus a one-year term for the firearm enhancement (§ 12022,
subd. (a)(1)). As to each of counts 7 through 10, the trial
court imposed a consecutive term of two years (one-third the
middle term of six years), doubled to four years for the prior
strike, plus four months for the firearm enhancement. The
trial court imposed additional terms of five years for the
prior serious felony and one year for the prior prison term.
The trial court stayed the remaining counts and
enhancements.
II. Prosecution Evidence
       Daren Gaynair and his wife, Charlotte Jackson, lived
in Rancho Palos Verdes with their children—daughters
Daijavon (age 19), Dexenia (age 15), Dakota (age 3), and sons
Drake and Dillon. Daren’s mother, Shirley Sabido, and
sister, Kim Gaynair, also lived at the residence. Daren
owned a tax preparation and accounting business, where
Daijavon also worked.
       On December 11, 2015, at approximately 8:30 a.m.,
Daijavon dropped off her brothers at school and returned
home. As Daijavon was about to leave again to drive her
sister Dakota to school and then go to work, she did not lock
the front door after entering the house. Daijavon went to the




                              4
kitchen area with her parents and helped Daren put on his
socks since he had a broken arm in a sling. Hutchinson,
Smith, Phillips, and another man, then suddenly appeared
inside the house. The Gaynairs did not know any of the
men.
      Hutchinson pointed a gun at the family and ordered
them to “get the fuck down.” Daren and Charlotte complied.
Daijavon asked Hutchinson if he was joking. Hutchinson
moved closer toward Daijavon and said, “Bitch, I said get
down.” Daijavon asked, “Are you serious?” Hutchinson
then ordered one of the other men to “tase that bitch.” The
man proceeded to tase Daijavon a total of 15 times, including
on her legs, back, stomach, and side. Daren implored
Daijavon to get down on the ground, which she finally did.
Hutchinson tied Daren’s wrists behind his back with a cloth.
When Daijavon told the armed man that Daren’s arm was
broken, the man replied, “I don’t care. If I don’t do this they
are going to kill me.” The man with the taser tied
Daijavon’s wrists with plastic zip ties. A third man tied
Charlotte’s wrists with zip ties. Daijavon broke apart the
ties. The man with the taser grabbed Daijavon by the head
and smashed her head on the ground several times. The
man told Daijavon not to move, retied her wrists, and tased
her again.
      Hutchinson made a phone call and told the person,
“We’re in. We got ’em.” Hutchinson told the Gaynairs that
he was there to get the money, stating, “This is an inside job.
You see, I don’t have on a mask.” Hutchinson asked where




                              5
the other family members were. Daren said they were
downstairs. Hutchinson and two of the other men then went
downstairs. One man remained with the Gaynairs in the
kitchen.
      When the men confronted the Gaynairs upstairs,
Dexenia was downstairs in her bedroom with Dakota.
Dexenia heard the commotion and initially believed
Daijavon was getting into trouble with her parents. Daren’s
sister Kim was in a nearby bathroom and heard someone
from upstairs falling on the floor. She exited the bathroom
and saw Dexenia crying. Kim then went into her mother
Shirley’s room to check on her and again heard someone
from upstairs falling on the floor. She went to Dexenia who
continued to cry. She told Dexenia to go to her room with
Dakota and lock the door.
      A minute or so later, Hutchinson and one of his
accomplices entered Dexenia’s bedroom. Hutchinson pointed
a gun at Dexenia and ordered her to get down. Dexenia was
immediately tased from behind and fell to the floor.
Dexenia pleaded with Hutchinson not to hurt Dakota.
Hutchinson told Dexenia that her father had done
“ ‘something bad.’ ” When Kim heard Hutchinson’s voice,
she told her mother Shirley that she would go get help. Kim
exited the house and made her way to a neighbor’s home.
      Moments later, Phillips entered Shirley’s room with
one of the other men, who then gave Phillips a gun and left.
Phillips saw an open door in her room and asked Shirley if
anyone had gone outside. Shirley lied and said the door was




                             6
usually left open to let in some air. Phillips threatened to
shoot Shirley but she begged him not to and defecated on
herself out of fear. Phillips ordered Shirley to get in her
wheelchair. Shirley told him she could not move herself.
Phillips noticed that Shirley was looking at him closely. He
held a pillow over her face and nearly suffocated her.
      During this time, Hutchinson took Dexenia upstairs
and placed her on the ground with her parents and Daijavon.
Her wrists were tied behind her back with a cloth. Dakota
was also brought upstairs. She stood near her family. At
some point, Hutchinson told Daren that he was going to kill
him. Daren pleaded with him to spare his daughters.
Hutchinson asked Daren where the safe was located. Daren
said it was in the hallway closet. Hutchinson then said, “ ‘I
already know where the safe is. I just wanted to see if you
were gonna lie.’ ”
      Hutchinson and the man with the taser pulled Daren
up from the ground and walked with him to the closet where
the safe was located. Once there, Daren was tased four
times and dropped to the ground. Hutchinson went inside
the closet as the other man held a gun to Daren’s head.
Hutchinson asked for the combination, which Daren
provided. Hutchinson eventually managed to open the safe
but saw no money inside. Hutchinson asked Daren,
“ ‘Where’s the fuckin’ money?’ ” Daren said he did not have
any. The men then kicked Daren. Hutchinson said, “ ‘Stop
fuckin’ with me. I know you got money.’ ” Daren told
Hutchinson that there were two cashier’s checks inside




                             7
envelopes in the safe. Hutchinson took the checks but told
Daren that if he did not get his cash, he would take Dakota
with him. Daijavon overheard Hutchinson’s threat and said
she had $3,500 in her purse. The man with the taser
grabbed her purse and took out the cash. Hutchinson also
took cell phones belonging to Daijavon, Daren, Charlotte,
and Shirley. Dexenia did not have a cell phone.
       By this time, Kim had made her way across the street
to a neighbor’s house where she called 911. The call was
made at 9:03 a.m. Deputies arrived at the Gaynair’s
residence within minutes. When he heard the sirens,
Hutchinson yelled, “TC, 1, 2, 3. Let’s go,” and fled the house
with his accomplices. Hutchinson and Smith ran into a
nearby ravine about a quarter of a mile away. Deputies
found and detained the two shortly thereafter. After
searching Smith, deputies found a loaded, 38-caliber
revolver and zip ties. Deputies recovered jewelry, including
cuff links, watches, necklaces, and a bracelet, as well as two
$50,000 cashier’s checks from Hutchinson. Phillips was
located nearby as he ran along Hawthorne Boulevard.
During a field show-up, Shirley identified Phillips as one of
the perpetrators. Deputies found zip ties in Phillips’ pocket
when they booked him into custody.
       During the investigation, deputies discovered muddy
footprints from the side of the Gaynair residence to a
backyard fence that led into a strip of land separating the
property from Hawthorne Boulevard. A taser made to look
like a cell phone was found near the fence. A parked Nissan




                              8
Maxima with the doors unlocked and key in the ignition was
located across the street from the Gaynair residence. Inside
the vehicle, deputies found Phillips’ California identification
card, a package of zip ties, and a receipt from Home Depot
for the zip ties. Deputies also found jewelry on the side of
the house. Daijavon’s purse was found in a trash bag in the
hallway. The money was not inside. The master bedroom
was ransacked, with drawers opened and clothes thrown on
the floor. Deputies never found the cell phones, watches,
and additional jewelry taken during the robbery.
III. Defense Evidence
       Los Angeles Sheriff’s Department Deputy Jamila Leal
testified that Daren told her that he would not be able to
identify any of the perpetrators since he was not wearing his
glasses and had his eyes closed for most of the time during
the incident. Dennis Robateau worked as Shirley’s
caregiver and Daren’s handyman at one of Daren’s
businesses. Robateau told deputies he saw Phillips
speaking with an employee at Daren’s tax business a couple
of months before the robbery. Although a detective spoke
with the employee, he determined there was no basis for
further investigation. The Gaynairs also said that they had
no reason to suspect anyone wanted to retaliate against
them.
                        DISCUSSION
I.     Sufficiency of the Evidence
       Hutchinson contends that the evidence was insufficient
to support his conviction for robbing Dexenia (counts 4 and




                              9
9) because Dexenia was in neither actual nor constructive
possession of any property that was taken at the Gaynair
residence. We disagree.
       A.   STANDARD OF REVIEW
       On appeal, the relevant inquiry governing a challenge
to the sufficiency of the evidence “ ‘is whether, 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.’ ” (People
v. Nguyen (2015) 61 Cal.4th 1015, 1055.) “The record must
disclose substantial evidence to support the verdict—i.e.,
evidence that 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. Zamudio
(2008) 43 Cal.4th 327, 357.) “In applying this test, we
review the evidence in the light most favorable to the
prosecution and presume in support of the judgment the
existence of every fact the jury could reasonably have
deduced from the evidence.” (Ibid.) “ ‘[I]t is the jury, not the
appellate court which must be convinced of the defendant’s
guilt.’ ” (Nguyen, at pp. 1055–1056.) “A reversal for
insufficient evidence ‘is unwarranted unless it appears “that
upon no hypothesis whatever is there sufficient substantial
evidence to support” ’ the jury’s verdict.” (Zamudio, at
p. 357.) “In our limited role on appeal, ‘[c]onflicts and even
testimony which is subject to justifiable suspicion do not
justify the reversal of a judgment, for it is the exclusive
province of the trial judge or jury to determine the credibility




                              10
of a witness and the truth or falsity of the facts upon which a
determination depends. [Citation.] We resolve neither
credibility issues nor evidentiary conflicts; we look for
substantial evidence.’ ” (People v. Letner and Tobin (2010)
50 Cal.4th 99, 161–162.)
      B.     ROBBERY AND CONSTRUCTIVE POSSESSION
      Applying the substantial evidence standard, a rational
trier of fact could have found the essential elements of the
crime beyond a reasonable doubt. (People v. Marshall (1997)
15 Cal.4th 1, 34.) 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.) “Robbery is
larceny with the aggravating circumstances that ‘the
property is taken from the person or presence of another . . . ’
and ‘is accomplished by the use of force or by putting the
victim in fear of injury.’ ” (People v. Anderson (2011) 51
Cal.4th 989, 994.) Any person who owns, or who exercises
direct physical control over, or who has constructive
possession of, any property taken may be a victim of a
robbery if force or fear is applied to such person. (People v.
Scott (2009) 45 Cal.4th 743, 749–750 (Scott).) Furthermore.
“[t]wo or more persons may be in joint constructive
possession of a single item of personal property, and multiple
convictions of robbery are proper if force or fear is applied to
multiple victims in joint possession of the property taken.”
(Id. at p. 750.)




                              11
      Constructive possession requires only “that there be
some type of ‘special relationship’ with the owner of the
property sufficient to demonstrate the victim had authority
or responsibility to protect the stolen property on behalf of
the owner.” (Scott, supra, 45 Cal.4th at p. 753.) The victim
need not have “general authority to control the owner’s
property in other circumstances.” (Id. at pp. 753–754.) A
special relationship may include close relatives who live in
the same household or visit frequently. (People v. Weddles
(2010) 184 Cal.App.4th 1365, 1369–1370 (Weddles).) When
analyzing constructive possession authorities, Scott relied on
People v. Gordon (1982) 136 Cal.App.3d 519, which found
that the defendant committed robbery when he pointed a
gun at the parents of an adult son who lived in the parents’
residence and then proceeded to the son’s bedroom to steal
property. (Gordon, at pp. 523–524.) Gordon affirmed the
defendant’s robbery convictions as against both parents,
noting that the victims were responsible for preserving the
property taken and finding constructive possession by the
parents of their adult son’s personal items. (Id. at p. 529; see
People v. DeFrance (2008) 167 Cal.App.4th 486 (DeFrance)
[mother robbed of car owned by her adult son]; Weddles, at
p. 1365 [man robbed of his brother’s money].)
      Here, substantial evidence supports the determination
that Dexenia constructively possessed the stolen property
under the special relationship doctrine. She lived at the
residence, was present inside the home during the entire
robbery, and, as with the other victims, was physically




                              12
assaulted and restrained in order to prevent her from
interfering with the crime’s commission. Furthermore.
Dexenia’s familial relationship with the stolen property’s
owners (her parents and siblings) expressly falls within the
special relationships set forth in Civil Code section 50.4 (See
Scott, supra, 45 Cal.4th at pp. 753–754, 757–758.) Thus, the
robbery conviction in this case may be affirmed based on
constructive possession of an immediate family member’s
property. (See Weddles, supra, 184 Cal.App.4th at p. 1370.)
      Hutchinson cites People v. Ugalino (2009) 174
Cal.App.4th 1060 (Ugalino), in support of his argument that
Dexenia could not constructively possess the stolen property.
In Ugalino, Joshua Johnson and Jessie Rider shared a two-
bedroom apartment with several other people. (Id. at
p. 1062.) The defendant and his accomplice entered the
apartment on the pretense of buying marijuana from
Johnson, a drug dealer. Once inside, the defendant and his
accomplice drew guns on Johnson, and the defendant
announced, “[Y]ou’re getting jacked.” (Id. at pp. 1062–1063.)
Johnson stuffed the drugs that he had been holding into his


     4   Civil Code section 50 provides: “Any necessary force
may be used to protect from wrongful injury
the . . . property . . . of a spouse, child, parent, or other
relative, or member of one’s family, or of a ward, servant,
master, or guest.” Under this statute, Dexenia had the
authority to protect the stolen property, and thus had
constructive possession of it. Her parents’ presence does not
change the analysis. (See Scott, supra, 45 Cal.4th at p. 750.)




                              13
pants and fled the apartment. The assailants followed
Johnson in pursuit. (Id. at p. 1063.) On appeal, the Third
District reversed the defendant’s conviction for attempted
robbery of Rider. (Id. at p. 1065.)
      In reversing the conviction, the Third District noted
that “Rider did not have actual possession of the marijuana,
and Johnson stored the marijuana in a locked safe in his
bedroom.” (Ugalino, supra, 174 Cal.App.4th at p. 1065.)
Rider did not have access to the safe. “In fact, Rider did not
even have a key to the apartment, most of the time coming
and going only when someone else was home.” (Ibid.)
Moreover, “there was no evidence [Johnson] expected Rider
to assist him” in protecting his belongings. (Ibid.) Lacking
any connection to Johnson other than sharing an apartment
for only three to four months, the Third District held that
Rider could not be deemed to have constructive possession of
the personal property locked away by Johnson. (Ibid.)
      In Ugalino, supra,174 Cal.App.4th 1060, there was no
“special relationship” between the owner of the stolen
property and a roommate who did not even have his own key
to the apartment. (Id. at p. 1065.) Here, it is undisputed
Dexenia resided in, and had unrestricted access to, the home
and that nearly all the stolen property, except perhaps the
cashier’s checks stored in the safe, was accessible to the
home’s residents. Thus, Ugalino is easily distinguishable.
      Hutchinson points to Dexenia’s status as a 15-year-old
minor at the time of the robbery to argue that Dexenia could
not have had constructive possession of any of the stolen




                             14
property. As noted by Hutchinson, however, no published
case in California has addressed whether a minor had
sufficient possession of his or her parents’ property, while
the parents were present, to render the minor a robbery
victim. First, we observe that the jury may have reasonably
found that some of the property taken belonged to Dexenia
personally given that her mother testified that watches
belonging to her daughters were stolen. Second,
“[c]onstructive possession does not require an absolute right
of possession.” (DeFrance, supra, 167 Cal.App.4th at p. 497.)
It is for this reason that constructive possession will be
found when the person has a special relationship with the
owner of the property. (See ibid.)
       We also note that “[b]y requiring that the victim of a
robbery have possession of the property taken, the
Legislature . . . excluded as victims those bystanders who
have no greater interest in the property than any other
member of the general population.” (Scott, supra, 45 Cal.4th
at pp. 757–758.) Dexenia plainly does not fall under that
category. Although Hutchinson cites Brooks v. The People
(1872) 49 N.Y. 436, to argue that a minor must be left in
“sole charge” of his or her parents’ residence when a robbery
occurs in order to be deemed a victim of that robbery,
California courts have expressly refused to make such a
distinction when a business is robbed and the victim is a
store employee with no security function or cash-handling
responsibilities, such as a janitor. (See People v. Gilbeaux
(2003) 111 Cal.App.4th 515, 522–523.) Given that one need




                             15
not own or have a legal right to the property in order to have
possession of it, (see People v. Galoia (1994) 31 Cal.App.4th
595, 597), as well as the codified special relationship
between Dexenia and her parents, we decline to hold that
Dexenia could not be deemed a robbery victim. Unarguably,
in effecting the theft of property, the defendants subjected
Dexenia to the same force and intimidation as her other
family members. We see no rational basis to conclude that a
minor’s constructive possession of or possessory interest in
her family’s property is non-existent if majority members of
her family are present. This is not 1872. The forcible
taking of family-owned (parents or siblings) property
impacts both children and adults within a family unit.
II. Counts 1 Through 5 Must Be Reversed
      Counts 1 through 5 of the information charged
Hutchinson, Smith and Phillips with first degree residential
robbery, in violation of section 211. Counts 6 through 10 of
the information charged Hutchinson, Smith and Phillips
with home invasion robbery, in violation of section 211. As
to counts 6 through 10, the information further alleged that
Hutchinson, Smith and Phillips acted in concert and entered
an inhabited dwelling house during the commission of the
robbery, in violation of section 213, subdivision (a)(1)(A).
      On appeal, Hutchinson argues that counts 1 through 5
must be vacated because the “in-concert” allegations
appended to counts 6 through 10 are sentencing
enhancements, not separate offenses. In other words,




                              16
Hutchinson suffered ten convictions for five substantive
offenses. The People agree.
      We also agree. Multiple convictions may not be based
on necessarily included offenses based on one criminal act.
(See, e.g., People v. Moran (1970) 1 Cal.3d 755, 763 [“If the
evidence supports the verdict as to a greater offense, the
conviction of that offense is controlling, and the conviction of
the lesser offense must be reversed”].) An offense is
necessarily included within another if the statutory elements
of the greater offense include all the elements of the lesser
offense. (People v. Reed (2006) 38 Cal.4th 1224, 1227.) As
noted above, robbery is 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.) First degree residential
robbery is robbery perpetrated in an “inhabited dwelling
house.” (§ 212.5.) Home invasion robbery is first degree
residential robbery committed “in concert” with one or more
other people. (§ 213, subd. (a)(1)(A).) An allegation that
robbery was committed in concert within the meaning of
section 213, subdivision (a)(1)(A), is an additional element of
the crime of first degree robbery; it does not create a
separate offense. (See In re Jonathan T. (2008) 166
Cal.App.4th 474, 482.) Therefore, counts 1 through 5 are
necessarily included in counts 6 through 10. As a result,
Hutchinson’s convictions on counts 1 through 5 must be
reversed.




                              17
                        DISPOSITION
      The judgment is reversed as to counts 1 through 5. In
all other respects, the judgment is affirmed.
      CERTIFIED FOR PUBLICATION.



                                  JOHNSON, J.

We concur:



             ROTHSCHILD, P. J.



             BENDIX, J.*




     * 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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