Opinion
B201074
5-9-2008
THE PEOPLE, Plaintiff and Respondent, v. JOHNY XI LIEU, Defendant and Appellant.
Diane Berley, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Margaret E. Maxwell and Marc A. Kohm, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
I. INTRODUCTION
Defendant, Johny Xi Lieu, appeals from his convictions for: kidnapping to commit robbery (Pen. Code, § 209, subd. (b)(1)); first degree residential robbery (§ 211); four counts of firearm assault (§ 245, subd. (a)(2)); criminal threats (§ 422); and, three counts of felony false imprisonment. (§ 236.) The jurors also found that defendant personally used a firearm in the commission of the kidnapping and robbery (§ 12022.53, subd. (b)) and in the remainder of the offenses. (§ 12022.5.) Defendant argues that there was insufficient evidence to support any of his convictions and his kidnapping for robbery purposes conviction. The Attorney General argues that the trial court should have imposed a court security fee as to each count and the record should be corrected to more accurately reflect the sentence imposed. We affirm with modifications.
II. FACTUAL BACKGROUND
We view the evidence in a light most favorable to the judgment. (Jackson v. Virginia (1979) 443 U.S. 307, 319; People v. Elliot (2005) 37 Cal.4th 453, 466; Taylor v. Stainer (9th Cir. 1994) 31 F.3d 907, 908-909.) On September 17, 2005, Frank Chung lived with his family on Glendon Way in San Gabriel. Mr. Chungs business partner was Guozhu Wu. Mr. Wu lived with his family. Mr. Wus house was at the rear of Mr. Chungs property. At approximately midnight, Mr. Chung left his home to pick up his daughter. As he approached his car, Mr. Chung heard some noise. Mr. Chung immediately saw three or four individuals jump over a low fence and run towards him. Each wore a dark hooded sweater and something covering their faces. Mr. Chung ran toward Mr. Wus residence. One individual continued to chase Mr. Chung. The man wore a dark hooded sweater and a blue and white patterned handkerchief as a triangle was tied over his face. The man wore Converse All Star shoes. Mr. Chung yelled: "`Mr. Wu, Mr. Wu, open the door. Open the door." The man caught Mr. Chung. The man held a gun to Mr. Chungs head. Mr. Chung was very scared. Mr. Chung crouched down and placed his hands behind his head. The man spoke to Mr. Chung in English. Mr. Chung was ordered to have Mr. Wu open the door. In Cantonese, Mr. Chung asked Mr. Wu to open the door. When the door did not open immediately, the man told Mr. Chung, "`I am going to count to three and if you dont open the door, I am going to shoot." Mr. Chung repeated the demand to Mr. Wu in Cantonese.
When Mr. Wu opened the door, Mr. Chung walked inside with the man. The man was pushing Mr. Chung. The assailant ordered Mr. Wu and his wife, He Hui Chang and children, to crouch down and look at the floor. Mr. Chung was also ordered to crouch down. The assailant said, "`Wheres the money?" Mr. Chung translated what the man said for the Wus. Ms. Wu said, "`No, we dont have any money." The assailant repeated what Mr. Chung had said in Cantonese, but did not appear to be very fluent. Mr. Wu took seven $100 bills and smaller denominations and some business cards from his pocket and placed them on the coffee table. The assailant asked, "`Is there any more money?" Mr. Chung translated the mans statement in Cantonese. The assailant then repeated the Cantonese phrase. The assailant then reached down and took the money. The assailant left the house. Mr. Chung immediately closed the door and called the police.
At about the same time, Mr. Chungs wife, Candy, heard someone outside her home shout loudly. Ms. Chung opened the front door and saw two individuals running past her front yard. Each wore a hood over their head. Ms. Chung closed the door and called the police. While Ms. Chung was on the phone, someone hit her front door with what sounded like their shoulder and kicked the door.
San Gabriel Police Officer James Drabos arrived at 318 West Glendon Way at 12:12 a.m. on September 18, 2005. Officer Drabos spoke to Mr. and Ms. Chung and the Wu family in the driveway. Mr. Chung explained in English what had occurred. Mr. Wu spoke to Officer Drabos through Mr. Chungs translation. Mr. Wu said he had approximately $750 folded in his pants pocket, including seven $100 bills, two $20 bills, a $5 bill, and an unknown number of $1 bills. Mr. Wu said he also had some business cards and a receipt in his pocket. Mr. Chung described the assailant as a man who was approximately 5 feet 10 inches tall, medium build, who wore a black hooded sweatshirt, and dark pants and shoes. The suspect wore a blue and white bandana over his nose and mouth. Both Mr. Wus and Mr. Chungs height estimates were based upon the fact that they believed the man was slightly taller than Officer Drabos. Both Mr. Chung and Mr. Wu indicated that assailant had used a revolver in the robbery. Officer Drabos radioed to assisting police units with a description of the suspect and the dark colored revolver.
Officer Allen Sam was assigned to the perimeter surrounding the scene of the incident at approximately 12:12 a.m. Officer Drabos broadcast a description of the robber at approximately 12:25 a.m. Officer Sam remained in his patrol car at the perimeter for approximately 5 or 10 minutes before driving around the area. Soon thereafter, Officer Sam saw defendant dressed in dark blue hooded sweatshirt and dark pants. Defendant was hiding behind a block wall. Defendant was breathing heavily and perspiring. Officer Sam handcuffed defendant and conducted a patdown search for weapons. Officer Sam located a large sum of money folded in half in defendants front pouch pocket. Defendant said that he was coming from a party at a friends house.
Thereafter, Officer Drabos admonished Mr. Chung and Mr. Wu and drove them to the location where defendant was detained. Mr. Wu and Mr. Chung indicated that defendants height, weight, and clothing matched their assailant. However, they were unable to make a positive identification.
When asked if he had any money, defendant said he had $8. However, the officers found two $100 bills and a few small bills in defendants pouch pocket. At the time defendant was booked, Officer Sam found five $100 bills in defendants shoe. Defendant had a blue and white bandana sewn into the tongue of his shoe. The screen of defendants cellular telephone depicted a blue and white bandana. Defendants sweatshirt had a white powdery residue on the sleeve. Officer Sam found that significant since the suspects had jumped over a wall during the crime. On September 18, 2005, San Duongs father, who was Mr. Chungs neighbor, found a gun in a bucket under his stairs. Also in the bucket was a blue bandana. Some papers lay beside the bucket. Mr. Duong telephoned the police.
At trial, Mr. Chung identified defendants shoes, sweatshirt, and blue bandana as the same as the assailant wore during the robbery. Mr. Wu identified defendants sweatshirt as similar to the one worn during the robbery. Mr. Wu identified the business cards and receipts, which bore his restaurants name, as those taken during the robbery.
III. DISCUSSION
A. Sufficiency of the Evidence
1. Kidnapping, robbery, assaults with a firearm, threats, false imprisonment
Defendant argues there was insufficient evidence to support his convictions because none of the victims were able to identify him. We disagree. In reviewing a challenge of the sufficiency of the evidence, we apply the following standard of review: "[We] consider the evidence in a light most favorable to the judgment and presume the existence of every fact the trier could reasonably deduce from the evidence in support of the judgment. The test is whether substantial evidence supports the decision, not whether the evidence proves guilt beyond a reasonable doubt." People v. Mincey (1992) 2 Cal.4th 408, 432, fn. omitted; People v. Carter (2005) 36 Cal.4th 1114, 1156; People v. Hayes (1990) 52 Cal.3d 577, 631; People v. Johnson (1980) 26 Cal.3d 557, 576.) Our sole function is to determine if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (Jackson v. Virginia, supra, 443 U.S. at p. 319; People v. Bolin (1998) 18 Cal.4th 297, 331; People v. Marshall (1997) 15 Cal.4th 1, 34; People v. Ochoa (1993) 6 Cal.4th 1199, 1206; People v. Barnes (1986) 42 Cal.3d 284, 303; Taylor v. Stainer, supra, 31 F.3d at pp. 908-909.) The standard of review is the same in cases where the prosecution relies primarily on circumstantial evidence. (People v. Rodriguez (1994) 20 Cal.4th 1, 11; People v. Stanley (1995) 10 Cal.4th 764, 792; People v. Bloom (1989) 48 Cal.3d 1194, 1208; People v. Bean (1988) 46 Cal.3d 919, 932.) The California Supreme Court has held, "Reversal on this ground is unwarranted unless it appears `that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction]." (People v. Bolin, supra, 18 Cal.4th at p. 331, quoting People v. Redmond (1969) 71 Cal.2d 745, 755; People v. Sullivan (2007) 151 Cal.App.4th 524, 564.)
Defendant challenges the verdicts based primarily on the inconclusive identifications by the victims. However, in addition to the tentative identifications, there was substantial circumstantial evidence from which a rational jury could find beyond a reasonable doubt that defendant committed the kidnapping, robberies, threats, and assaults. Both Mr. Wu and Mr. Chung identified their assailant as wearing a dark hooded sweatshirt, pants, and shoes. The perpetrator also wore a blue and white bandana over his face. Both described the suspect as being slightly taller than Officer Drabos, who was five feet, eight inches tall. Mr. Wu described the money taken from him as folded in his pocket along with some business cards and receipts. Mr. Wu was certain that there were seven $100 bills, two $20 bills, one $5 bill, and an unknown number of $1 bills in his pocket. Defendant was located within a half hour of the robbery hiding near a block wall. Defendant was wearing a dark hooded sweatshirt, pants, and shoes. Defendant was breathing heavily and perspiring. Defendant stated that he had only $8 in his possession. However, officers found two $100 bills and a few small bills in defendants pouch pocket. At the time defendant was booked, Officer Sam found five $100 bills in defendants shoe. Defendant had a blue and white bandana similar to the one worn by the robber sewn into the tongue of his shoe. The screen of defendants cellular telephone also depicted a similar blue and white bandana. Defendant stood five feet, eight inches tall. Defendants sweatshirt had a white powdery residue on the sleeve, possibly from jumping over a wall prior to the robbery. At the field showup, Mr. Wu and Mr. Chung indicated that defendant wore the same clothing and was the same height and weight as the robber. At trial, Mr. Wu and Mr. Chung identified the sweatshirt worn by the defendant at the time of arrest as the same as the one worn by their assailant. Mr. Chung also identified defendants shoes and blue bandana as the same as the ones worn by the assailant. In People v. Mendoza (2000) 24 Cal.4th 130, 176, our Supreme Court held: "When . . . a defendant is found in possession of property stolen in a [robbery] shortly after the [robbery] occurred, the corroborating evidence of the defendants acts, conduct, or declarations tending to show his guilt need only be slight to sustain the [robbery] convictions. [Citations.]" (See also People v. Gamble (1994) 22 Cal.App.4th 446, 453; People v. McFarland (1962) 58 Cal.2d 748, 754; People v. Anderson (1989) 210 Cal.App.3d 414, 421.) A rational jury could have reasonably determined defendant committed the kidnapping, robbery, and related assaults, threats and false imprisonment. (See People v. Bradford (1997) 15 Cal.4th 1229, 1329-1331; People v. Stanley, supra, 10 Cal.4th at pp. 792-793.)
2. Sufficient Asportation for Aggravated Kidnapping
Defendant argues there was insufficient evidence to convict him of aggravated kidnapping because the movement of Mr. Chung was incidental to the robbery of Mr. Wu and did not substantially increase the risk of physical or psychological harm to either individual. In assessing defendants sufficiency of the evidence contention concerning the aggravated kidnapping conviction, it bears emphasis the alleged victim is Mr. Chung. And the threat to shoot Mr. Chung caused Mr. Wu to open the house door. Mr. Chung was not alleged to have been robbed. As set forth above, we consider the evidence in a light most favorable to the judgment, presume the existence of every fact the trier could reasonably deduce from the evidence in support of the judgment, and determine if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (People v. Carter, supra, 36 Cal.4th at p. 1156; Jackson v. Virginia, supra, 443 U.S. at p. 319.)
Section 209, subdivision (b) provides in relevant part: " (1) Any person who kidnaps or carries away any individual to commit robbery . . . shall be punished by imprisonment in the state prison for life with possibility of parole. [¶] (2) This subdivision shall only apply if the movement of the victim is beyond that merely incidental to the commission of, and increases the risk of harm to the victim over and above that necessarily present in, the intended underlying offense." (See People v. Martinez (1999) 20 Cal.4th 225, 232; People v. Rayford (1994) 9 Cal.4th 1, 12, 22; People v. Daniels (1969) 71 Cal.2d 1119, 1139.) The California Supreme Court has held that the aspects of movement not merely incidental to the underlying crime and the increased risk of harm are not mutually exclusive, but interrelated. (People v. Martinez, supra, 20 Cal.4th at pp. 231-232; People v. Rayford, supra, 9 Cal.4th at p. 12.)
The Martinez court reiterated: "In determining `whether the movement is merely incidental to the [underlying] crime . . . the jury considers the "scope and nature" of the movement. [Citation.] This includes the actual distance a victim is moved. However, we have observed that there is no minimum number of feet a defendant must move a victim in order to satisfy the first prong. ([People v.] Rayford, supra, 9 Cal.4th at p. 12; People v. Daniels, supra, 71 Cal.2d at p. 1128 [].) [¶] `The second prong of the Daniels test refers to whether the movement subjects the victim to a substantial increase in risk of harm above and beyond that inherent in [the underlying crime]. [Citations.] This includes consideration of such factors as the decreased likelihood of detection, the danger inherent in a victims foreseeable attempts to escape, and the attackers enhanced opportunity to commit additional crimes. [Citations.] The fact that these dangers do not in fact materialize does not, of course, mean that the risk of harm was not increased. [Citations.] ([People v.] Rayford, supra, 9 Cal.4th at pp. 13-14, 22 [Evaluation of risk of harm includes `such factors as "the defendants motivation to escape detection," and "the possible enhancement of danger to the victim resulting from the movement."]; In re Earley [(1975)] 14 Cal.3d [122], 132.)" (People v. Martinez, supra, 20 Cal.4th at p. 233.) In People v. Nguyen (2000) 22 Cal.4th 872, 885, the California Supreme Court held, "[W]hen it separately criminalized the act of kidnapping to commit robbery, the Legislature intended to target coerced movement resulting in an increased risk either of grave physical injury or of mental terror."
In People v. James (2007) 148 Cal.App.4th 446, 456, our colleagues in Division Three of this appellate district discussed the potentiality of greater culpability when an accused moves a victim out of public view even for a slight distance: "There is no rigid `indoor-outdoor rule by which moving a victim inside the premises in which he is found is never sufficient asportation for kidnapping for robbery while moving a victim from inside to outside (or the reverse) is always sufficient. (People v. Timmons (1971) 4 Cal.3d 411, 415.) Nonetheless, it has often been held that defendants who have moved their victims within the premises in which they were found did not increase the risk to the victims (People v. Washington [(2005)] 127 Cal.App.4th [290,] 299 [bank manager and teller briefly moved from public area of bank to vault room in order to open vault]; People v. Hoard [(2002)] 103 Cal.App.4th [599,] 602, 607, [jewelry store employees bound in back office to give defendant free access to the jewelry in the store] ), while defendants who moved their victims to more secluded or enclosed areas did substantially increase the risk (People v. Dominguez [(2006) 39 Cal.4th [1141,] 1153 [victim moved from a relatively open area alongside the road to a place significantly more secluded, decreasing the possibility of detection, escape or rescue]; People v. Aguilar (2004) 120 Cal.App.4th 1044, 1048, [victim moved 133 feet into unlit area where there was less likelihood of detection]; People v. Jones (1999) 75 Cal.App.4th 616, 629 [victim in parking lot moved 40 feet in order to push her into a car, removing her from public view and increasing the risk defendant could drive away with victim]; People v. Hill (1971) 20 Cal.App.3d 1049, 1052-1053 [defendant robbing supermarket moved customers from the parking lot into the market; defendant fired his gun inside the market, which he would not have done in the open parking lot].)"
Here, Mr. Chung was chased by defendant. Defendant then placed a gun to Mr. Chungs head. This occurred as Mr. Chung attempted to seek refuge in Mr. Wus residence. Defendant threatened to count to three before shooting Mr. Chung unless Mr. Wu opened the door. When Mr. Wu opened the door, defendant pushed Mr. Chung inside. Thereafter, defendant ordered Mr. Chung, Mr. and Ms. Wu and their two children to crouch down. Defendant then said, "`Wheres the money?" After Mr. Wu placed the contents of his pocket on the table, defendant said, "`Is there any more money?" Defendants movement of Mr. Chung was not merely incidental to the robbery. Even if the movement involved only a few feet from the porch inside the house, Mr. Chung was moved inside to avoid detection. The actual distance is only a factor for consideration. It is not conclusive. (People v. Martinez, supra, 20 Cal.4th at p. 233; People v. Rayford, supra, 9 Cal.4th at p. 12; People v. Salazar, supra, 33 Cal.App.4th at p. 346-347.) Further, in People v. James, supra, 148 Cal.App.4th at page 457, our Division three colleagues described the incidental movement element in a case where the aggravated kidnapping victim is not robbed, rather he was used to facilitate a robbery of others: "While `that robbery of a business owner or employee includes the risk of movement of the victim to the location of the valuables owned by the business that are held on the business premises (People v. Washington, supra, 127 Cal.App.4th at p. 300), the robbery of a business employee does not include the risk that other individuals will be moved, at gunpoint, from the relative safety of the outdoors, into the business premises for the duration of the robbery." In the context of a home invasion robbery, as occurred here, the typical risk of such a crime does not include the fact entry is gained by threatening to shoot a neighbor and the kidnapping victim is forced into the residence for the duration of the robbery. In this case, the asportation of Mr. Chung, who was never robbed, was not merely incidental to the robbery of the Wu family.
Moreover, defendants placement of a gun to Mr. Chungs head and movement of him into Mr. Wus house increased the potential risk of harm. This also reduced the victims ability to escape and enhanced defendants ability to rob Mr. Wu and his family members. Moreover, as the Martinez court held: "The fact that these dangers do not in fact materialize does not, of course, mean that the risk of harm was not increased." (People v. Martinez, supra, 20 Cal.4th at p. 233; see People v. James, supra, 148 Cal.App.4th at p. 454.) Substantial evidence supports the asportation element of kidnapping.
B. Court Security Fees
The Attorney General argues that court security fees pursuant to section 1465.8, subdivision (a)(1), should have been imposed. We agree. The trial court should have imposed a $20 section 1465.8, subdivision (a)(1) court security fee as to each of the 10 counts for which defendant was convicted. (See People v. Crittle (2007) 154 Cal.App.4th 368, 371; People v. Schoeb (2005) 132 Cal.App.4th 861, 865-866.) The trial court did not impose any court security fees. As a result, 10 section 1465.8, subdivision (a)(1) fees shall be imposed, for a total of $200.
C. Correction of the Abstract of Judgment
The parties agree that the abstract of judgment incorrectly reflects the judgment imposed. More specifically, they argue that the abstract of judgment should be corrected to reflect that the life with the possibility of parole sentence imposed as to the kidnapping for robbery in count 1 was ordered to be served concurrently with the determinate sentences imposed as to the remaining counts. Further, the abstract of judgment must be modified to state the total concurrent determinate term of confinement is 16 years, 4 months rather than 26 years, 4 months as erroneously appears in the final page of the document. The trial court stated, "The sentence on count 1 will run concurrently with the sentence on the determinate counts, because, as I stated, the crimes were committed in the single course of conduct, and given defendants youth and the other mitigating circumstances, the court believes that a concurrent sentence is just in this case." As a general rule, the record will be harmonized when it is in conflict. (People v. Smith (1983) 33 Cal.3d 596, 599; In re Evans (1945) 70 Cal.App.2d 213, 216.) The Court of Appeal has held, "`[A] discrepancy between the judgment as orally pronounced and as entered in the minutes is presumably the result of clerical error." (People v. Williams (1980) 103 Cal.App.3d 507, 517, quoting the Los Angeles Superior Court Criminal Trial Judges Bench Book at page 452; see also § 1207; In re Daoud (1976) 16 Cal.3d 879, 882, fn. 1 [trial court could properly correct a clerical error in a minute order nunc pro tunc to conform to the oral order of that date if there was a discrepancy between the two].) The abstract of judgment should be corrected to reflect the oral pronouncement of judgment in this case. The trial court is to personally insure the abstract of judgment is corrected to fully comport with the modifications we have ordered. (People v. Acosta (2002) 29 Cal.4th 105, 110, fn. 2; People v. Chan (2005) 128 Cal.App.4th 408, 425-426.)
IV. DISPOSITION
The judgment is modified to reflect the imposition of 10 court security fees. Upon issuance of the remittitur, an amended abstract of judgment is to be prepared and forwarded to the Department of Corrections and Rehabilitation. The abstract of judgment shall reflect the corrections and fees set forth above. The judgment is affirmed in all other respects.
We concur:
ARMSTRONG, J.
MOSK, J. --------------- Notes: All further statutory references are to the Penal Code unless otherwise indicated.