Filed 10/6/15 P. v. Mitchell CA2/4
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   SECOND APPELLATE DISTRICT

                                                DIVISION FOUR


THE PEOPLE,                                                          B256986

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                      Super. Ct. No. PA076743)
         v.

JAMES R. MITCHELL,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Los Angeles County,
David Walgren, Judge. Affirmed.
         Rachel Lederman, under appointment by the Court of Appeal, for Defendant
and Appellant.
         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant
Attorney General, Lance E. Winters, Assistant Attorney General, Paul M.
Roadarmel, Jr., and Stephanie A. Miyoshi, Deputy Attorneys General, for Plaintiff
and Respondent.
      Defendant and appellant James R. Mitchell was convicted following a jury
trial of two counts of first degree robbery (Pen. Code, § 211),1 two counts of
kidnapping (§ 207, subd. (a)), and two counts of carjacking (§ 215, subd. (a)).
Appellant contends that the evidence was insufficient to sustain his kidnapping and
carjacking convictions. We affirm.


              FACTUAL AND PROCEDURAL BACKGROUND
Prosecution Evidence
      Around noon on April 24, 2013, Chae Soon Guziel parked her car in the
driveway in front of her house to unload groceries. She opened one of the house’s
two garage doors with a button in her car and brought a pizza into the house. Her
husband, Dr. Lawrence Guziel, had stayed at home that day due to illness.2 His
green Mercury Mariner was parked inside the garage at the time. Mrs. Guziel
called to him from the kitchen to notify him of her arrival. She then walked back
to the car to get the rest of the groceries and saw appellant holding a white gun and
standing inside or nearly inside the garage.
      Mrs. Guziel thought appellant shot her with a taser gun.3 Appellant
approached her and told her not to shout or he would kill her. He bound her hands,
legs, and mouth with tape, binding her wrist so tightly that it broke.
      After 20 or 30 minutes, Dr. Guziel went to the garage to check on his wife.
He saw that she was gagged and that appellant was pointing a gun at her.
Appellant told Dr. Guziel to lie down in the hallway adjacent to the laundry room,

1
      Further unspecified statutory references are to the Penal Code.
2
      Mrs. Guziel was 74 years old at the time of trial, and Dr. Guziel was 75.
3
      She subsequently noticed a bruise in the area where she thought she had been shot.

                                           2
and Dr. Guziel complied. Appellant bound Dr. Guziel’s wrists and legs and
gagged him. Appellant moved Mrs. Guziel into the laundry room.
        Dr. Guziel was able to speak despite the gag, so he asked what appellant
wanted. Appellant said that he wanted to use Dr. Guziel’s debit card to make a
withdrawal at a bank. Dr. Guziel told appellant to get the debit card from his
wallet in the master bedroom.
        Appellant dragged the Guziels through the kitchen down a long hallway and
into the master bedroom, where he placed them on the bed.4 The Guziels remained
on their bed for approximately three hours, while appellant roamed through the
house, pulling down the shades, opening drawers, and searching the closet in the
master bedroom.
        At some point during the three hours, appellant stated that he wanted to use
Dr. Guziel’s Mariner to drive to the bank, use Dr. Guziel’s debit card, and then
return. Dr. Guziel’s wallet and car keys were on a desk in the master bedroom,
about five feet from the bed. Dr. Guziel did not remember giving the car keys to
appellant or appellant taking the keys from him. Appellant did not ask Dr. Guziel
for the car keys. Mrs. Guziel never saw appellant take any keys or have keys in his
hand.
        Before leaving, appellant warned Dr. Guziel that he was going to return to
the house and that the “PIN number better be right, or there would be
consequences.” Appellant left and drove Dr. Guziel’s car to the bank.
        While appellant was away, the Guziels’ daughter, Marie, arrived at the
house with her one-year-old son. She heard “mumbling” from the master bedroom
and found her parents with “tape on their ankles and zip ties around their wrists” as


4
        The distance from the garage to the foot of the bed was 101 feet.

                                             3
well as duct tape around their heads and necks. After Marie removed the gag from
Dr. Guziel’s mouth, he exclaimed, “Get out, get out, he’s coming back, he has a
gun, get your son out of here right now.” Marie called 911 on speaker phone while
she tried to free her parents.
      When police officers arrived, they told Marie to leave the house, and they
freed her parents. Other officers went to a nearby Bank of America, where they
saw appellant in Dr. Guziel’s car. Appellant got out of the car, placed a tablecloth
over his head and walked to the ATM. The officers arrested him.


Defense Evidence
      The defense submitted an exhibit depicting a diagram of the Guziels’ home
and rested on the state of the evidence.


Procedural Background
      Appellant was charged with two counts of first degree residential robbery
(§ 211), two counts of kidnapping (§ 207, subd. (a)), and two counts of carjacking
(§ 215, subd. (a)). The information further alleged that appellant personally
inflicted great bodily injury on a person 70 years or older. (§ 12022.7, subd. (c).)
The information alleged as to all counts that appellant personally used a firearm
within the meaning of section 12022.53, subdivision (b). It was further alleged
that appellant served three prior prison terms (§ 667.5, subd. (b)) and suffered two
prior strikes (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), a prior serious or
violent felony pursuant to section 1170, subdivision (h)(3), and a prior conviction
pursuant to section 667, subdivision (a)(1).
      The jury found appellant guilty of all six counts and found the allegations to
be true. The trial court found the prior conviction allegations to be true. The court

                                           4
sentenced appellant to 40 years to life on count 1, 45 years to life on count 2, and
consecutive terms of 40 years to life on the remaining counts, for a total of 245
years to life. Appellant filed a timely notice of appeal.


                                    DISCUSSION
      Appellant contends the evidence is insufficient to support his convictions for
carjacking and kidnapping. We conclude that his convictions are supported by
substantial evidence.
      “When the sufficiency of the evidence to support a conviction is challenged
on appeal, we review the entire record in the light most favorable to the judgment
to determine whether it contains evidence that is reasonable, credible, and of solid
value from which a reasonable trier of fact could find the defendant guilty beyond
a reasonable doubt. [Citation.] ‘Conflicts 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 of a witness and the
truth or falsity of the facts upon which a determination depends.’ [Citation.]
Unless it describes facts or events that are physically impossible or inherently
improbable, the testimony of a single witness is sufficient to support a conviction.
[Citation.]” (People v. Elliott (2012) 53 Cal.4th 535, 585.)


I.    Carjacking Convictions
      “‘Carjacking’ is the felonious taking of a motor vehicle in the possession of
another, from his or her person or immediate presence, or from the person or
immediate presence of a passenger of the motor vehicle, against his or her will and
with the intent to either permanently or temporarily deprive the person in



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possession of the motor vehicle of his or her possession, accomplished by means of
force or fear.” (§ 215, subd. (a).)
      Appellant contends that the evidence was insufficient to establish two
elements of the offense: first, that he took the car from the victims’ immediate
presence, and, second, that he formed the intent to take the car before or during his
use of force or fear. We find the evidence sufficient to establish both elements.
      The requirement that the defendant take the car from the victim’s person or
immediate presence “is similar to the equivalent requirement for robbery.”
(People v. Johnson (2015) 60 Cal.4th 966, 989 (Johnson).) Something is within a
person’s immediate presence for purposes of section 215 “if it is ‘“‘so within his
reach, inspection, observation or control, that he could, if not overcome by
violence or prevented by fear, retain his possession of it.’”’ [Citation.] ‘Under this
definition, property may be found to be in the victim’s immediate presence “even
though it is located in another room of the house, or in another building on [the]
premises.”’ [Citation.] . . . ‘A vehicle is within a person’s immediate presence for
purposes of carjacking if it is sufficiently within his control so that he could retain
possession of it if not prevented by force or fear.’ [Citation.]” (Ibid.) “The
requisite intent – to deprive the possessor of possession – must exist before or
during the use of force or fear. [Citations.]” (People v. Gomez (2011) 192
Cal.App.4th 609, 618 (Gomez), disapproved in part on other grounds by People v.
Elizalde (2015) 61 Cal.4th 523, 538.)
      We rely on Johnson to conclude that the immediate presence element is
satisfied here. In Johnson, the defendant crashed his van after being chased by a
sheriff. He abandoned the van and fled on foot, walking five miles to the victim’s
home. The victim was in her kitchen, and her purse and car keys were on a counter
in the kitchen. The victim’s car was in the garage, which was separated from the

                                           6
kitchen by a breezeway. The defendant entered the victim’s home, killed her,
robbed her of jewelry and money, and took her car.
      The defendant in Johnson challenged his carjacking conviction on the same
two grounds relied upon by appellant here. First, the defendant claimed the
evidence was insufficient for the jury to find he intended to take the victim’s car
before he killed her. The California Supreme Court rejected this argument, stating
that “a reasonable jury could have concluded that after defendant had walked five
miles from where he had crashed his van, what he needed most was another
vehicle to escape from the area, and that he intended to steal that vehicle.”
(Johnson, supra, 60 Cal.4th at p. 989.) The defendant also argued that he did not
take the car from the victim’s presence because the car was in her garage,
separated from the kitchen where she was killed by a breezeway. The court
affirmed, stating that “the jury could reasonably find that the car keys were within
the victim’s immediate reach at the time defendant arrived at her door, and
defendant took the keys from where she had been. All of this evidence supports a
jury finding that the victim could have retained possession of her keys and car had
defendant not prevented her from doing so by force or fear—in this case, deadly
force.” (Id. at p. 990.)
      The evidence is sufficient to support the jury’s finding that appellant took
the car from the Guziels’ immediate presence. Although the Guziels were 101 feet
away from their cars in the garage when appellant obtained the car key, the key to
the car was in the master bedroom where appellant had dragged the Guziels.
Specifically, the key was on a desk in the bedroom, about five feet from the bed
where appellant placed the Guziels. Therefore, similar to Johnson, the car key
would have been in Dr. Guziel’s immediate reach and he would have retained
possession of it had appellant not prevented him from reaching it by use of force –

                                          7
here, by binding and gagging him. (Johnson, supra, 60 Cal.4th at p. 990; see
People v. Hayes (1990) 52 Cal.3d 577, 631 [“a rational trier of fact could have
found the ‘immediate presence’ element of robbery to have been proven beyond a
reasonable doubt” where the stolen property was in an office 107 feet away from
the victim’s location and thus “remained under [his] physical control”]; People v.
Hoard (2002) 103 Cal.App.4th 599, 609 [elements of carjacking established even
though the victim was not present in the parking lot when the defendant drove her
car away because the defendant forced her to relinquish her car keys].)
      Appellant relies on People v. Coleman (2007) 146 Cal.App.4th 1363
(Coleman), where the court reversed the defendant’s carjacking conviction. In that
case, the victim worked in the storefront of a glass shop. The defendant walked in,
pointed a gun at her, and demanded the keys to a truck which was owned by her
employer and parked in front of the glass shop. The court concluded that
carjacking had not been established where the victim “was not within any physical
proximity to the [truck], the keys she relinquished were not her own, and there was
no evidence that she had ever been or would be a driver of or passenger in the
[truck].” (Id. at p. 1373.) The court acknowledged that “a carjacking may occur
where neither the possessor nor the passenger is inside or adjacent to the vehicle.
[Citation.]” (Ibid.) Nonetheless, the court concluded that the purpose of the
carjacking statute was “not served by applying it under these circumstances, where
the victim’s only connection to her employer’s stolen automobile was her ability to
access the automobile’s keys left in her office of employment.” (Id. at p. 1365.)
Coleman did not rely solely on the immediate presence element of carjacking to
overturn the conviction, but on the victim’s lack of a connection to the vehicle.
Unlike in Coleman, the car belonged to the victim, Dr. Guziel. He was prevented



                                          8
from retaining possession of his car key by appellant’s use of force. The
immediate presence requirement thus was satisfied.
      The requirement that the intent to deprive the victim of possession exist
before or during the use of force or fear is easily satisfied here. (Gomez, supra,
192 Cal.App.4th at p. 618.) The Guziels were bound and gagged for
approximately three hours and therefore were constantly subject to appellant’s use
of force. At some point while they were bound and gagged, appellant said that he
wanted to take Dr. Guziel’s car to the bank to use Dr. Guziel’s debit card.
Appellant took the car while they remained bound and gagged. The evidence thus
is sufficient to establish that appellant formed the intent to take Dr. Guziel’s car at
the time of his use of force or fear against the Guziels.


II.   Kidnapping Convictions
      Simple kidnapping is defined as follows: “Every person who forcibly, or by
any other means of instilling fear, steals or takes, or holds, detains, or arrests any
person in this state, and carries the person into another country, state, or county, or
into another part of the same county, is guilty of kidnapping.” (§ 207, subd. (a).)
Appellant contends that the jury verdict on the kidnapping counts was not
supported by substantial evidence of asportation.
      “In order to establish a kidnapping under section 207, subdivision (a), the
prosecution must prove ‘“(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.” [Citation.]’
[Citation.] In determining whether the third element, asportation, has been
satisfied, a trier of fact may consider ‘not only the actual distance the victim is
moved, but also such factors as whether that movement increased the risk of harm

                                           9
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.’
[Citation.]” (People v. Arias (2011) 193 Cal.App.4th 1428, 1434-1435.)
      The California Supreme Court has explained that “‘we have resisted setting
a specific number of feet as the required minimum distance [for simple
kidnapping], and have further required that the movement must be “substantial in
character.”’ [Citation.]” (People v. Dominguez (2006) 39 Cal.4th 1141, 1155.) In
determining whether the movement is substantial in character, “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.” (People v.
Martinez (1999) 20 Cal.4th 225, 237.) Nonetheless, “[w]hile the jury may
consider a victim’s increased risk of harm, it may convict of simple kidnapping
without finding an increase in harm, or any other contextual factors. Instead, . . .
the jury need only find that the victim was moved a distance that was ‘substantial
in character.’ [Citations.]” (Ibid.)
      “‘[E]ach case must be considered in the context of the totality of its
circumstances.’ [Citation.] Thus, ‘[i]n some cases a shorter distance may suffice
in the presence of other factors, while in others a longer distance, in the absence of
other circumstances, may be found insufficient.’ [Citation.]” (People v. Corcoran
(2006) 143 Cal.App.4th 272, 279.)
      The kidnapping convictions are supported by substantial evidence.
Appellant bound and gagged the Guziels in the garage and dragged them

                                          10
approximately 101 feet to the master bedroom.5 The jury reasonably could find
that moving the Guziels 101 feet from the garage to the master bedroom was a
distance that was substantial in character, and that this movement increased the risk
of harm to the Guziels and decreased the likelihood of detection.


                                   DISPOSITION
             The judgment is affirmed.
             NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                               WILLHITE, Acting P. J.




             We concur:




             MANELLA, J.




             COLLINS, J.




5
      The prosecutor submitted into evidence photographs and a floor plan of the house,
and Dr. Guziel indicated on the floor plan the path by which appellant dragged the
Guziels through the house.
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