People v. CentersPeople v. Centers
RICHLI, J.
Victim Daniel Raines owed defendant Donald Lewis Centers (defendant) about $200 for an “eight-ball” of methamphetamine. Defendant barged into the house where Raines was hiding out from him and kidnapped Raines at gunpoint. He drove Raines around town, from pay phone to pay phone, while Raines tried to arrange payment of $200 in ransom. Defendant kept the loaded gun pointed at Raines most of this time and threatened to shoot him if he could not get the money, if he did anything “funny,“or if the police intervened. Defendant was captured, and Raines was freed, when the police raided the ransom “drop.”
In the published portion of this opinion, we will hold there was sufficient evidence that defendant intentionally confined the victim in a manner which exposed the victim to a substantial likelihood of death, so as to support a sentence of life without the possibility of parole. (
We will also consider the “multiple victim” exception to
In the nonpublished portion of this opinion, we find no reversible error. Accordingly, we will affirm.
FACTUAL BACKGROUND
Defendant supplied victim Daniel Raines with methamphetamine for resale. Defendant would “front” Raines an eight-ball (an eighth of an ounce of methamphetamine); Raines would sell it, use the proceeds to repay defendant, and keep any profit.
In late December 1996, Raines made the mistake of keeping and using one of defendant‘s eight-balls. As a result, he was unable to repay the $200, so he owed defendant for it. When defendant angrily confronted him, Raines told defendant he was going to a friend‘s house to get the money. But Raines did not come back; instead, he started hiding out from defendant by staying with various friends, each for only a few days.
On January 15,1997, Raines was staying with a friend in Winchester. Jennifer Grundman, who lived there, and a man named Rick were also present. At about 11:30 a.m., defendant opened the front door and came in. Defendant‘s girlfriend, Michelle Estrada, came in behind him. Defendant was holding a revolver. He announced, “I‘m going to take Danny.” “He owes me money.” Defendant then pointed the gun “in [Raines‘s] face” and said: “You‘re coming with me. You‘re going to pay your debt.” Rick said, “He‘s not going with you.” Defendant cocked his gun, pointed it at Rick, and asked, “You‘re willing to take a bullet for your friend?”
Defendant took Raines by the one arm; Estrada took him by the other arm. Defendant was still pointing the gun at Raines‘s stomach. They walked him out to defendant‘s car and told him to get in. Defendant‘s two young daughters were in the back seat. Defendant said: “You‘re going to get my money, mother fucker. You‘re going to get my money. I want my money today. You ain‘t leaving my sight until I get my money.” Shortly after defendant began driving, he unloaded his gun and gave it to Estrada. According to Estrada, she put it in the trunk; she testified that, about two hours later, when defendant dropped her off, it was still there.
According to Raines, however, he was still afraid because Estrada, who was sitting right behind him, had the gun. About 15 minutes later, defendant reloaded the gun. While he drove, he held the gun under his right leg, pointed at Raines. He said, “Don‘t do anything funny, ... because the gun is pointed straight at you....” “I could shoot it at any time.” Later, defendant took the gun out from under his leg and held it on his lap. He threatened to shoot Raines if he did not get his money. He also threatened several times to shoot Raines if the police got involved.
Defendant drove to a gas station in Hemet, where Raines made several calls from a pay phone in an effort to raise the money. Estrada went with him while he called. Eventually, an acquaintance named Kim Yoakum told Raines she would try to get the money for him. Defendant drove Raines to another gas station, where Raines called Yoakum again. Once again, Estrada stayed with him while he called. Some time after this, defendant dropped Estrada and their children off at a friend‘s house.
Yoakum tried to raise the money, but failed. Nevertheless, she agreed to meet defendant at an AM/PM mini-market and to give him the money. Defendant told Yoakum not to notify the police. Raines, too, told her not to get the police involved. Yoakum, however, called the police immediately.
After defendant and Raines arrived at the AM/PM, defendant noticed an unmarked police car. He said, “If it‘s a set up, I‘ll shoot you.” As defendant was driving away, the police car pulled in front of him, blocking his path. Defendant maneuvered back-ward, then forward again, but more police cars boxed him in. Mean-while,
Inside the car, on the floorboard on the driver‘s side, the police found a fully loaded.357 magnum revolver. Estrada identified it as defendant‘s. They also found 4.9 grams of methamphetamine in the trunk.
II
PROCEDURAL BACKGROUND
A jury found defendant guilty of kidnapping for ransom (
The jury also found that, in the commission of the kidnapping, defendant intentionally confined the victim in a manner which either caused him to suffer bodily harm or exposed him to a substantial likelihood of death. (
The trial court dismissed the convictions for possession of methamphetamine while armed and for assault with a firearm, all the personal firearm use allegations, and all but two of the prior prison term allegations. (
III
THE SUFFICIENCY OF THE EIDENCE OF A SUBSTANTIAL LIKELIHOOD OF DEATH
Defendant contends there was insufficient evidence he intentionally confined Raines in a manner which exposed Raines to a substantial likelihood of death.
The interpretation of the applicable statute is a question of law. (People v. Taylor (1992) 6 Cal.App.4th 1084, 1091, 8 Cal.Rptr.2d 439.) The determination of the historical facts is committed to the jury. We “`must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence — that is, evidence which is reasonable, credible, and of solid value — such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.’ [Citation.] We ‘\“presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.\“` [Citation.]” (People v. Davis (1995) 10 Cal.4th 463, 509, 41 Cal.Rptr.2d 826, 896 P.2d 119, cert. den. (1996) 516 U.S. 1121 [116 S.Ct. 932, 133 L.Ed.2d 859].) Whether the facts (when so viewed) meet the statutory standard (when so construed) is a question of law. (See Western. States Petroleum. Assn. v. Superior Court (1995) 9 Cal.4th 559, 570, 38 Cal.Rptr.2d 139, 888 P.2d 1268.)
The People have never claimed Raines suffered bodily harm. There was evidence that, when Raines first got into the car, defendant hit him in the mouth with the back of his hand. This caused Raines “a little bit” of pain, but no “bruises or anything like that.” Defendant also hit Raines in the chest with his elbow. In addition, when Raines jumped out of defendant‘s car, the door hit him, and he got “scraped up a little bit.” These would appear to be the sort of “trivial injur[ies]” that are insufficient to constitute bodily harm within the meaning of the statute. (People v. Jackson (1955) 44 Cal.2d 511, 517, 282 P.2d 898 [fact that victim‘s wrists were bound so as to cause pain and impair circulation was insufficient evidence of “bodily harm“]; see also People v. Gilbert (1965) 63 Cal.2d 690, 711, 47 Cal.Rptr. 909, 408 P.2d 365 [fact that victim fell on sidewalk, absent evidence of any resulting injury, was insufficient evidence of “bodily harm“], revd. on other grounds (1967) 388 U.S. 263 [87 S.Ct. 1951, 18 L.Ed.2d 1178]; cf. People v. Doxy (1970) 5 Cal.App.3d 216, 220, 85 Cal.Rptr. 57 [four-inch cut requiring more than 20 stitches, plus smaller cuts, bruises, and “superficial abrasions,” constituted “bodily harm“].) In closing argument, the prosecutor elected to rely on a substantial likelihood of death; he did not argue Raines suffered bodily harm. We therefore limit our consideration to whether the jury could find defendant intentionally confined Raines in a manner which exposed him to a substantial likelihood of death.
The first case to construe the “substantial likelihood of death” provision was People v. Serrano (1992) 11 Cal.App.4th 1672, 15 Cal.Rptr.2d 305. There, the defendant and his accomplices kidnapped the victim at gunpoint. (Id., at p. 1674, 15 Cal. Rptr.2d 305.) When the police located their hideout, they “used [the victim] as a shield, made it to a car, and drove off, leading the police on a seventy mile-per-hour chase on surface streets during which the culprits ran three red lights.” (Id., at p. 1675, 15 Cal.Rptr.2d 305.) On appeal, the defendant did not raise, and the appellate court therefore did not discuss, the sufficiency of the evidence to show a substantial likelihood of death. The court did hold, however, the “substantial likelihood of death” provision was not unconstitutionally vague: “We find nothing indicating that the Legislature intended the amendment to be read in any but its plain ordinary meaning.” (Id., at pp. 1676-1 677, 15 Cal.Rptr.2d 305.) “The Legislature ... plainly meant to enhance punishment for a kidnapper who intentionally increases, by a certain degree, the risk of death otherwise inherent in kidnapping. [Citation.]” (Id., at p. 1676, 15 Cal.Rptr.2d 305.)
We have found only one case dealing with the sufficiency of the evidence of a substantial likelihood of death. In People v. Chacon (1995) 37 Cal.App.4th 52, 43 Cal.Rptr.2d 434, the defendants tried to escape from a youth authority facility by taking the librarian hostage. They held her at the point of a “shank,” or homemade knife; they threatened to kill her with it unless they were given a truck in which to make their getaway. Once they had obtained the truck, they took the librarian with them and threatened to kill her if anyone interfered. After an officer sprayed Mace into the truck, it crashed into a tree. (Id., at pp. 58-59, 43 Cal. Rptr.2d 434.)
The “substantial likelihood of death” provision was added in response to People v. Schoenfeld (1980) 111 Cal.App.3d 671, 168 Cal.Rptr. 762. (People v. Chacon, supra, 37 Cal.App.4th at p. 59, fn. 3, 43 Cal.Rptr.2d 434; People v. Serrano, supra, 11 Cal.App.4th at p. 1676, 15 Cal.Rptr.2d 305; People v. Ordonez (1991) 226 Cal. App.3d 1207, 1227, fn. 12, 277 Cal.Rptr. 382; Review of Selected 1982 California Legislation (1983) 14 Pacific L.J. 357, 601-602.) Schoenfeld involved the notorious Chowchilla kidnapping; it held the victims’ emotional distress, which led them to suffer nosebleeds, stomachaches, and fainting, did not constitute “bodily injury.” (People v. Schoenfeld, supra, 111 Cal.App.3d at pp. 687-688, 168 Cal.Rptr. 762.) The Legislature evidently intended to permit the imposition of life without the possibility of parole in any future case similar to Schoenfeld. Thus, as defendant concedes, “the Schoenfeld case provides some insight into the sort of circumstances to which the amendment applies.”
The Schoenfeld defendants hijacked a school bus at gunpoint. (People v. Schoenfeld, supra, 111 Cal.App.3d at pp. 676-677, 168 Cal.Rptr. 762.) They transported the children in overcrowded vans, without food, water, or toilets, for nearly 12 hours. They then imprisoned them in a “previously buried furniture van.” (Id., at pp. 677-678, 168 Cal.Rptr. 762.) The buried van afforded about six and a half square feet of floor space per person. (Id, at p. 678, 168 Cal.Rptr. 762.) It was supplied with plenty of water and a little food. (Id., at p. 678 and 678, fn. 8, 168 Cal.Rptr. 762.) “Crude holes had been cut in the fender wells of the van to serve as primitive toilets.” (Id, at p. 678, 168 Cal.Rptr. 762.) The defendants had installed a ventilation system and had tested it to make sure it would work for at least 48 hours. (Id, at p. 678 and 678, fn. 9, 168 Cal.Rptr. 762.) Nevertheless, the van soon became stuffy and malodorous. (Id., at p. 678, 168 Cal.Rptr. 762.) If their ransom demand were not met, or if any of the children became ill, the defendants planned to halt the kidnapping and release the victims. (Id, at p. 676, fn. 4, 168 Cal.Rptr. 762.) After the victims were in the van for about 16 hours (id, at p. 676, 168 Cal.Rptr. 762), however, they managed to reopen the sealed entrance hole. All the victims escaped unharmed. (Id, at p. 679, 168 Cal.Rptr. 762.)
Here, the jury could reasonably find defendant intentionally confined Raines in a manner which exposed him to
Defendant understandably focuses on the fact that, for some period of time, the gun was unloaded and out of his hands. According to Raines, however, the gun was still in the hands of Estrada, defendant‘s accomplice, and she was sitting right behind him. Also, according to Raines, defendant took back the gun and reloaded it 15 minutes later. This brief lessening of the immediate danger is insufficient to defeat the jury‘s finding. Defendant also argues that he committed the kidnapping in front of witnesses; hence, he was not motivated to kill Raines to avoid identification. He also notes that he brought his family along. The weight to be given these matters was for the jury to decide. Even assuming the jury could have found defendant would not have killed Raines, it was not compelled to do so. The jury‘s implied finding to the contrary was supported by substantial evidence.
Raines was not in as much danger as the victim in Chacon, who was stabbed in the stomach, choked into unconsciousness, and driven into a tree. However, as the Chacon court held, the jury was entitled to consider various possibilities even though they did not come to pass, including the possibility that defendant would shoot Raines because he could not come up with the money or because the police intervened. Certainly it would seem Raines was in more danger than the victims in Schoenfeld who, though buried underground, were supplied with food, water, and a working ventilation system, and who were to be released if they fell ill.
Defendant therefore argues that, as a matter of law, a “garden-variety” kidnapping at gunpoint should not be sufficient to support a finding of a substantial likelihood of death. He argues that, if the same penalty applies to a kidnapping at gunpoint, such as this one, as applies to a kidnapping in which the victim suffers death or bodily harm, a kidnapper will have little incentive to refrain from harming or killing the victim. We recognize that in discussing a pre-1982 version of the aggravated kidnapping statute, the Supreme Court declared that one of the rationales for an increased penalty when the victim “suffers death or bodily harm” was deterrence: “`[K]idnappers would be less likely to inflict violence upon their victims if they knew that such abstention would save them from the death penalty.\‘” (People v. Jackson, supra, 44 Cal.2d at p. 516, 282 P.2d 898, quoting Robinson v. United States (1945) 324 U.S. 282, 284, 65 S.Ct. 666, 89 L.Ed. 944.) This reasoning, however, applies with less force to the “substantial likelihood of death” version of the statute. The statute is still meant to deter, but its deterrent aim has been lowered. By extending the increased penalty to cases in which the kidnapper has exposed the victim to a substantial likelihood
We also note that a kidnapper still has ample incentive to avoid harming or killing the victim. If the victim dies during the kidnapping, the kidnapper ordinarily will be guilty of first degree felony murder (
Defendant also argues the more severe penalty was not intended to apply to an “ordinary” kidnapping such as this and should be reserved for more egregious kidnappings. He relies on People v. Jackson, supra, 44 Cal.2d 511, 282 P.2d 898 and People v. Daniels (1969) 71 Cal.2d 1119, 80 Cal.Rptr. 897, 459 P.2d 225. As we noted earlier, Jackson held a “trivial injury” is insufficient to constitute bodily harm within the meaning of
In Daniels, the Supreme Court held that movements of a robbery victim which “are merely incidental to the commission of the robbery and do not substantially increase the risk of harm over and above that necessarily present in the crime of robbery itself fail to satisfy the asportation element of kidnapping for robbery. (People v. Daniels, supra, 71 Cal.2d at p. 1139, 80 Cal.Rptr. 897, 459 P.2d 225.) It reasoned that, otherwise, almost every robbery, just so long as it involved the slightest movement of the victim, could be prosecuted as an aggravated kidnapping. (Id., at pp. 1130-1132, 80 Cal.Rptr. 897, 459 P.2d 225.) It also noted a concern that kidnapping for robbery, which carried a penalty (at that time) of death or life imprisonment, ought to require more egregious conduct than robbery, which did not. (Id., at p. 1138, 80 Cal.Rptr. 897, 459 P.2d 225.)
The Daniels court discussed and relied on Jackson: “Just as we recognized in Jackson that some minor injuries are necessarily incidental to the crime of forcible kidnaping, so we now recognize that some brief movements are necessarily incidental to the crime of armed robbery.... And just as we concluded in Jackson that such incidental injuries are `not of the nature contemplated by the Legislature\’ in prescribing the bodily harm element of aggravated kidnaping, so we now conclude that such incidental movements are not of the scope intended by the Legislature in prescribing the asportation element of the same crime.” (People v. Daniels, supra, 71 Cal.2d at p. 1134, 80 Cal.Rptr. 897, 459 P.2d 225, fn. omitted.)
We do not believe Jackson and Daniels support defendant‘s contention, for two
Second, in Daniels, the distinction in penalty was between kidnapping for robbery, which was punishable by death or life imprisonment, and robbery, which was punishable by as little as one year in prison. (Former
At the same time, we are not holding the use of a loaded gun, standing alone, necessarily exposes the victim to a substantial likelihood of death as a matter of law. Inasmuch as there was additional evidence here of a substantial likelihood of death, we are not called upon to address this question, and we express no opinion on it. We merely hold there is substantial evidence to support the jury‘s finding that defendant intentionally confined Raines in a manner which exposed Raines to a substantial likelihood of death.
IV***
V
THE APPLICATION OF PENAL CODE SECTION 654 TO THE BURGLARY AND THE KIDNAPPING
Defendant contends the trial court violated
“Section 654 provides that even though an act violates more than one statute and thus constitutes more than one crime, a defendant may not be punished multiple times for that single act. [Citations.] The ‘act’ which invokes section 654 may be a continuous ` “course of conduct” ... comprising an indivisible transaction....\’ [Citation.] `The divisibility of a course of conduct depends upon the intent and objective of the defendant.... [I]f the evidence discloses that a defendant entertained multiple criminal objectives which were independent of and not merely incidental to each other, the trial court may
Burglary consists of entry into a house or other specified structure with the intent to commit a felony. (
“However, there is a `multiple victim\’ exception to section 654. Under this exception, ‘even though a defendant entertains but a single principal objective during an indivisible course of conduct, he may be convicted and punished for each crime of violence committed against a different victim.’ [Citations.] The reason for the multiple victim exception is that `when a defendant “\“commits an act of violence with the intent to harm more than one person or by means likely to cause harm to several persons,\’ his greater culpability precludes application of section 654.“\’ [Citation.]” (People v. Garcia (1995) 32 Cal.App.4th 1756, 1781, 39 Cal.Rptr.2d 73, quoting People v. Ramos (1982) 30 Cal.3d 553, 587, 180 Cal.Rptr. 266, 639 P.2d 908 and People v. McFarland (1989) 47 Cal.3d 798, 803, 254 Cal.Rptr. 331, 765 P.2d 493, respectively.)
Burglary, standing alone, is not a violent crime for purposes of the multiple victim exception. (People v. Guzman (1996) 45 Cal.App.4th 1023, 1028, 53 Cal.Rptr.2d 67; In re Asean D. (1993) 14 Cal.App.4th 467, 475, fn. 10, 17 Cal.Rptr.2d 572.) However, it may be treated as such when there is a finding that the defendant inflicted great bodily injury in the commission of the burglary. (People v. Miller (1977) 18 Cal.3d 873, 886, 135 Cal.Rptr. 654, 558 P.2d 552 [great bodily injury allegation under former
Both kidnapping for robbery (
Kidnapping for ransom, however, can be committed by “seiz[ing], confin[ing], inveigl[ing], entic[ing], decoy[ing], abduct[ing], [or] conceal[ing]” the victim. (
Defendant argues, however, there was no named victim of the burglary. He cites People v. Miller, supra, 18 Cal.3d 873, 135 Cal.Rptr. 654, 558 P.2d 552. There, the information expressly alleged the defendant robbed John Keating. (Id., at p. 879, 135 Cal.Rptr. 654, 558 P.2d 552.) It also alleged the defendant committed a burglary in the course of which he inflicted great bodily injury on Charles Burk. (People v. Miller, supra, 18 Cal.3d at p. 882, 135 Cal.Rptr. 654, 558 P.2d 552.) In holding that the multiple victim exception applied, the Supreme Court explained: “[T]he victim of the robbery as alleged, proved and found to be true was John Keating who was accosted and threatened at gunpoint.... [T]he burglary alleged, proved and found to be true is a crime of violence committed against Burk. Defendant being convicted of a second crime of violence against a second victim, [
Here, by contrast, the information did not allege, and the jury did not find, that any particular person was the victim of either the burglary or the related personal firearm use enhancement. Defendant concludes the multiple victim exception cannot apply. We think this reads too much into Miller. Certainly under Miller, if it has been alleged, proved, and found true that the defendant committed violent crimes against multiple named victims, this is sufficient to invoke the multiple victim exception; but Miller does not hold this is necessary.
We know of no case in which the court declined to apply the multiple victim exception simply because the victims had not been named in the information. Ordinarily, in determining whether
Finally, the trial court‘s implied finding of multiple victims is supported by substantial evidence. Indeed, defendant does not argue otherwise. Raines was indubitably the victim of the kidnapping. Grundman was the victim (or at least a victim) of the burglary, because she lived in the home. (See People v. Davis (1998) 18 Cal.4th 712, 720-722, 76 Cal.Rptr.2d 770, 958 P.2d 1083, and cases cited [burglary statute protects occupant‘s possessory interest in building].) Grundman also was a victim of defendant‘s menacing display of a firearm during the burglary. It could be argued that Raines, too, was a victim of the burglary and the personal firearm use. Nevertheless, there was at least one victim of the burglary and the personal firearm use who was not also a victim of the kidnapping. This was sufficient. (People v. Miller, supra, 18 Cal.3d at p. 886, fn. 11, 135 Cal.Rptr. 654, 558 P.2d 552; People v. Garcia, supra, 32 Cal. App.4th at pp. 1784-1785, 39 Cal.Rptr.2d 73; People v. Robinson, supra, 198 Cal. App.3d at p. 681, 244 Cal.Rptr. 17; People v. Masters (1987) 195 Cal.App.3d 1124, 1128, 241 Cal.Rptr. 511.)
We conclude the trial court did not err by imposing separate and unstayed sentences for the kidnapping and the burglary.
VI
DISPOSITION
The judgment is affirmed.
RAMIREZ, P.J, and HOLLENHORST, J, concur.