Opinion
G053043
09-12-2017
THE PEOPLE, Plaintiff and Respondent, v. DEJOHN LAMONT MITCHELL, Defendant and Appellant.
Brett Harding Duxbury, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson, Lynne G. McGinnis, and Kristine A. Gutierrez, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 14NF0014) OPINION Appeal from a judgment of the Superior Court of Orange County, Frank F. Fasel, Judge. (Retired judge of the Orange County Sup. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed. Brett Harding Duxbury, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson, Lynne G. McGinnis, and Kristine A. Gutierrez, Deputy Attorneys General, for Plaintiff and Respondent.
Dejohn Lamont Mitchell appeals from a judgment after a jury convicted him, and his co-defendant Donnis James Grimes, of kidnapping to commit robbery, carjacking, three counts of second degree robbery, two counts of assault with force likely to produce great bodily injury (GBI), and unlawful taking of a vehicle, and found true GBI allegations. In Mitchell's appeal, he raises sufficiency of the evidence, instructional, and sentencing claims. Aside from the abstract of judgment that must be corrected, his claims are meritless. We affirm the judgment.
Grimes's appeal is the subject of a separate proceeding (case No. G052926).
FACTS
Alexis B. (Alexis) began dating Mitchell after she met him online at MeetMe.com. She knew Grimes from junior high school. Later, she learned Mitchell and Grimes were friends. Alexis lived on South Valley Street in the City of Anaheim near Brookhurst Street and Ball Road, directly behind a Sizzler restaurant. Grimes was Alexis's neighbor. Mitchell lived nearby. December 10, 2013—John Pineda (Counts 9 & 10)
John Pineda looked at "Ashley's" profile on MeetMe.com. Later, "Ashley" sent Pineda a private message and during an online conversation, she asked if he wanted to meet her. He agreed. She told him to get $40 and meet her in Anaheim. He got $40 from the bank, drove to the designated meeting place in Anaheim, and waited for one hour, but she did not arrive.
Meanwhile, Mitchell and Alexis were texting each other. Mitchell told Alexis that if a man called from a specified number, to tell him that she would meet him. Alexis asked, "'WTF do I do if he asks me my name serous ppl aren't that stupid.'" Mitchell answered, "Ashley." Alexis replied, "'kk.'"
We quote the text messages with spelling and grammatical errors.
Alexis messaged Pineda as "Ashley" and told him to meet her at an address on South Valley Street near Sizzler at Brookhurst and Brookmore Avenue. When Pineda arrived at the location, he messaged Ashley. Pineda saw two men, Grimes and Mitchell, standing outside an apartment complex. Alexis messaged Pineda to turn off his engine and wait. Alexis texted Mitchell that Pineda had arrived. Alexis messaged Pineda to go inside the apartment complex.
Grimes and Mitchell approached Pineda, who sat in his car; one of the men had a gun and the other man had a detective's badge. Both men were black and in their mid-20's. The man with the gun wore a red baseball hat, red jacket, and black jeans—he appeared to be about six feet tall and weighed 175 pounds. The man with the badge wore a dark baseball hat, white T-shirt, and blue jeans—he appeared to be about six feet tall and weighed 150 pounds.
Pineda gave inconsistent statements to an officer and at trial about the height of the perpetrators. He was unable to identify Mitchell at trial or in a photographic lineup immediately after the offense. In fact, Pineda excluded Mitchell from the photographic lineup.
The man pointed the gun at Pineda's head and told him to get out of the car. Pineda got out of the car, kneeled down, and put his hands behind his head. The armed man told Pineda that they were undercover police officers, and the other man asked Pineda why he was there so late. One of the men went through the car and took his keys, driver's license, iPhone, and $40. When Pineda stood up, the man without the gun punched Pineda. The men fled. When Pineda yelled for help, someone called 911. December 29, 2013—Brian Avila (Counts 7 & 8)
A few weeks later, Brian Avila met a woman on MeetMe.com, and they arranged to meet at her apartment on West Broadway in Anaheim between 2:00 a.m. to 3:00 a.m. At 1:45 a.m., Mitchell texted Alexis asking her to call Avila to tell him to meet her at a specific apartment number. Avila got out of his car and went to the apartment. Alexis texted Mitchell when Avila had arrived. When Avila could not find the girl he was supposed to meet, he walked back to his car. When Avila reached his car, Grimes and Mitchell approached him and demanded his money. Both men were black and in their mid-20s. One of the men was about six feet tall and slender—he wore a dark hoodie and black shorts. The other man was shorter and stockier—he wore a dark T-shirt and white shorts. Avila handed one of the men his wallet, and the man took $20 and his driver's license. The men also took his iPhone and car keys.
The men pulled Avila out of his car and beat him up. Both men punched him, and when he fell down, they kicked him until he blacked out. When he gained consciousness, Avila saw the men walking toward a gas station. Avila borrowed a cell phone and called 911.
Officers responded and obtained the surveillance video from the gas station. Officers showed the surveillance video, which depicted two black males, Grimes and Mitchell, walking through the gas station, and Avila identified them as the men who robbed and attacked him. December 31, 2013—Mark Ludwig (Counts 1-6)
Ludwig saw "Samantha's" profile on MeetMe.com and sent her a private message asking her to spend New Year's Eve with him. "Samantha" replied to meet her at an address in Anaheim. He requested a telephone number to ensure he was talking to a female. After she replied with a number, he called and when Alexis answered, he asked for Samantha, and Alexis said she was not Samantha and ended the call.
At some point, Mitchell texted Alexis and said, "'If someone call you tell em see you there. I got to do a pick up.'" Mitchell texted her again and said, "'Call that numb back and say come by.'"
During the testimony concerning the numerous messages, texts, and telephone calls, the trial court opined, "The record is not going to be real clear right now."
Ludwig sent Samantha another message, and she told him to call the same number. When he called, Samantha said her name was Alexis, and she agreed to meet him. Alexis agreed to meet Ludwig where Mitchell had instructed her.
Mitchell texted Alexis and said, "'Txt him and ask where he at last time please.'" Alexis responded, "'He called a minute ago and said he on the freeway.'" Mitchell replied, "'Tell him to go to the apartments near Sizzler please.'" Alexis said, "'He is right there in Niobe Bee and Valley.'" Later, Alexis texted Mitchell, "'Man keep me out of whatever shit you got going. Whoever it is said the[y] will be there soon.'"
Ludwig, who drove his mother's car and shared a bank debit card with her, arrived, and he sent Alexis a message. She initially told him to wait there, which he did, but then gave him a new address. When he determined that address did not exist, he sent her another message. Alexis told him to meet her in a Sizzler parking lot. After he arrived and waited, she sent him a message to park at some nearby apartments, which he did.
Ludwig walked into the apartment complex corridor, but because it was very dark, he decided to return to his car. He saw someone and heard a shuffle. Mitchell and Grimes, who were both wearing gloves, ran toward Ludwig and grabbed him. Mitchell was tall and slender, and Grimes was tall and muscular.
Grimes held a knife to Ludwig's back. One man asked if he wanted to be stabbed, and the other man told him to "shut up." Both men demanded his money. When he began to say his wallet was in his back pocket, Mitchell punched him several times in the face, severely injuring his nose. One or both of the men threw him down near a tree. Grimes put his knee on Ludwig's back and held him at knifepoint while Mitchell went through his pockets, taking his phone, keys, and wallet, which contained his driver's license, money, and debit cards. The men asked him for the pin numbers to the debit cards, and he complied. After they told him to get up, Grimes held the knife to Ludwig's back and told him not to look at them as they walked him to Ludwig's car.
Mitchell got into the driver's seat. Grimes and Ludwig sat in the backseat, with Grimes holding him at knifepoint. Grimes told Ludwig they had a gun. He also told him to keep his head down, and not to look at them or out the window.
Mitchell drove to three or four banks but was unable to obtain any money. Ludwig's mother received text messages regarding the withdrawal of large sums of money from her account. Ludwig used the mobile banking "app" on his cell phone to show Grimes and Mitchell that he had money. Mitchell drove onto the freeway and the men talked about taking Ludwig to Long Beach to kill him and dump his body. Ludwig begged them to take him to the hospital, and he promised not to report them. After Ludwig asked for water, Mitchell stopped at a convenience store and bought him water.
Grimes and Mitchell eventually agreed to take Ludwig to the hospital, and they made him promise to say a homeless person carjacked him or they would kill his family. Ludwig got out of the car, and Mitchell and Grimes drove away. After Ludwig walked to the hospital and reported the false story, the doctor repaired his nose, which had been separated in part from his face.
The Investigation
Later that day, the police found Ludwig's vehicle and conducted surveillance. After Grimes returned to the vehicle and started to drive away, police officers used their vehicles to stop him. Mitchell was reclined on the front passenger's seat; his knuckles were injured. Officers arrested both men. Officers found physical evidence in the vehicle implicating the men in the Avila robbery. Later, at the hospital, Ludwig identified Grimes from a photographic lineup, but he was unable to identify Mitchell because he did not look at him.
An officer interviewed Mitchell, and he eventually made incriminating oral and written statements, including that they took Ludwig to an ATM where he withdrew $20. At the end of the interview, he tried to choke himself with a sweatshirt.
Procedural History
An amended information charged Mitchell with the following: Ludwig—kidnapping to commit robbery (Pen. Code, § 209, subd. (b)(1), all further statutory references are to the Penal Code unless otherwise indicated) (count 1); carjacking (§ 215, subd. (a)) (count 2); second degree robbery (§§ 211, 212.5, subd. (c)) (count 3); assault with force likely to produce GBI (§ 245, subd. (a)(4)) (count 4); unlawful taking of a vehicle (Veh. Code, § 10851, subd. (a)) (count 5); receiving stolen property (§ 496d, subd. (a)) (count 6); Avila—second degree robbery (§§ 211, 212.5, subd. (c)) (count 7); assault with force likely to produce GBI (§ 245, subd. (a)(4)) (count 8); and Pineda—second degree robbery (§§ 211, 212.5, subd. (c)) (count 9); assault with a firearm (§ 245, subd. (a)(2)) (count 10). The information alleged Mitchell inflicted GBI (§ 12022.7, subd. (a)) as to counts 1, 2, 3, and 4, and that he was armed with a firearm (§ 12022, subd. (a)(1)) with respect to count 9.
The amended information charged Grimes with the same offenses and alleged the same enhancements. --------
At trial, the prosecutor offered Pineda's, Avila's, and Ludwig's testimony as described above. After the close of evidence, the trial court denied Mitchell's section 1118.1 motion to dismiss count 1. During closing argument, Mitchell admitted he aided and abetted three robberies but denied he committed kidnapping for robbery. As relevant here, the court instructed the jury with CALCRIM No. 1203. The court also instructed the jury on the presumption of innocence, and that the prosecution must prove all the charges beyond a reasonable doubt (CALCRIM No. 220). The jury convicted Mitchell of all but counts 6 and 10. The jury found true Mitchell inflicted GBI as to counts 1, 2, 3, and 4, but not true that he was armed with a firearm with respect to count 9.
The trial court sentenced Mitchell to prison for an indeterminate term of life with the possibility of parole plus three years on count 1 plus a determinate term of three years on count 7 and one year on count 9. The court imposed a three-year concurrent term on count 3 and three years on the GBI enhancement, finding it was a separate act from count 1. The court imposed and stayed sentences on counts 2, 4, 5, and 8. The court ordered Mitchell to serve the determinate sentence first. The indeterminate abstract of judgment reflected that in count 1, the jury convicted Mitchell of "kidnapping to commit robbery, rape, oral copulation."
DISCUSSION
I. Sufficiency of the Evidence—Count 1
Mitchell argues insufficient evidence supports his conviction for count 1 because the robbery was complete before the kidnapping commenced. We disagree.
"'"'"[T]he court 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.] The standard is the same under the state and federal due process clauses. [Citation.] 'We presume "'in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.' [Citation.] This standard applies whether direct or circumstantial evidence is involved." [Citation.]' [Citation.]" (People v. Gonzales and Soliz (2011) 52 Cal.4th 254, 294.)
The prosecution must prove the following three elements to establish kidnapping: "(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.]" (People v. Jones (2003) 108 Cal.App.4th 455, 462, fn. omitted; § 207, subd. (a).) Kidnapping to commit robbery "requires the additional element of an intent to rob, an intent which must be formed before the kidnapping commences. If the intent to rob (even though carried out during the course of the kidnapping) is formed after the victim is seized, the offense, insofar as it relates to kidnapping is simple kidnapping and not kidnapping for the purpose of robbery. [Citations.]" (People v. Bailey (1974) 38 Cal.App.3d 693, 699.) "Intent is rarely susceptible of direct proof and usually must be inferred from the facts and circumstances surrounding the offense." (People v. Pre (2004) 117 Cal.App.4th 413, 420.)
Although kidnapping for robbery requires a specific intent to rob present at time of the original asportation (People v. Laursen (1972) 8 Cal.3d 192, 198), "[a]ll that is required is that the defendant have the specific intent to commit a robbery at the time the kidnapping begins" (People v. Davis (2005) 36 Cal.4th 510, 565-566 [robbery may fail]). Here, the record establishes Mitchell possessed such an intent.
Mitchell and Grimes robbed Ludwig of his keys, wallet, and bank card before they kidnapped him. However, there was other evidence from which the jury could reasonably conclude Mitchell kidnapped Ludwig to rob him of money by forcing him to withdraw money from his bank accounts at ATM's. The evidence demonstrated Mitchell first obtained Ludwig's debit cards and pin numbers and then forced Ludwig to his car. In the car, they asked Ludwig where they could take his debit cards. Mitchell drove them to three or four banks where he attempted to withdraw money from the ATM using Ludwig's cards. Ludwig's mother corroborated this by testifying she received text messages that night indicating withdrawals of large sums of money; she and Ludwig shared an account. Mitchell admitted to an officer he drove Ludwig to an ATM and took out $20, but was unable to get more money. The jury could rely on this evidence to conclude Mitchell kidnapped Ludwig to use his debit cards to rob him of additional money. Thus, sufficient evidence supports Mitchell's conviction for count 1. II. CALCRIM No. 1203
Mitchell contends CALCRIM No. 1203, "Kidnapping: For Robbery . . ." erroneously described the elements of kidnapping to commit robbery because it omitted the requirement "of concurrence between the intent to rob and the kidnapping." Not so.
The trial court instructed the jury with CALCRIM No. 1203, which provided as follows: "1. The defendant intended to commit robbery; [¶] 2. Acting with that intent, the defendant took, held, or detained another person by using force or by instilling a reasonable fear; [¶] 3. Using that force or fear, the defendant moved the other person or made the other person move a substantial distance; [¶] 4. The other person was moved or made to move a distance beyond that merely incidental to the commission of a robbery; [¶] 5. When that movement began, the defendant already intended to commit robbery; [¶] [and] 6. The other person did not consent to the movement." We determine the correctness of the jury instructions based on the entire charge. (People v. Covarrubias (2016) 1 Cal.5th 838, 905.)
In People v. Curry (2007) 158 Cal.App.4th 766, 781 (Curry), the court rejected an identical challenge to a slightly different version of CALCRIM No. 1203 and determined "that CALCRIM No. 1203 is a correct statement of the law." The court concluded that although the instruction did not inform the jury of the requirement that the intent to commit robbery exist at the time the kidnapping commence, the first three points of the instruction "adequately express[ed] that requirement." (Curry, supra, 158 Cal.App.4th at p. 782.)
Like in Curry, the first three elements of CALCRIM No. 1203 adequately express the requirement of the concurrence between the intent to rob and the kidnapping. The first element conveys the requirement the defendant must intend to commit robbery. The second element conveys the requirement the defendant, acting with the intent described in the first element, must forcefully take, hold, or detain another person. The third element conveys the requirement the defendant, using that force, moved the other person a substantial distance. When read together, the first three elements require the jury to find a concurrence between the intent to rob and kidnapping. As the Curry court stated, "The instruction describes the sequence of events starting with intent and followed by action—first to take, hold or detain the victim by force or fear, and then to move the victim a substantial distance." (Curry, supra, 158 Cal.App.4th at p. 782.) Therefore, CALCRIM No. 1203 was proper and Mitchell's constitutional rights were not implicated. III. Section 654
Mitchell asserts the trial court erred by imposing a concurrent three-year term on count 3, robbery, because it was part of a continuing course of conduct with count 1, kidnapping to commit robbery. Again, we disagree.
Section 654 prohibits punishment for two offenses arising from the same act or a series of acts constituting an indivisible course of conduct. Divisibility depends on intents and objective—one objective may be punished once, and multiple objectives may be punished for each statutory violation. Thus, the issue in each case is whether defendant's criminal intent and objective were single or multiple, and this is determined based on all the circumstances, which we review for substantial evidence. (People v. Jackson (2016) 1 Cal.4th 269, 354.) A defendant may not be punished both for robbery and for kidnapping for robbery, where both crimes were committed pursuant to a single intent and objective of robbing the victims. (People v. Lewis (2008) 43 Cal.4th 415, 519, overruled on other grounds in People v. Black (2014) 58 Cal.4th 912, 919-921.)
Here, ample evidence supports the trial court's finding the robbery offense, count 3, was divisible from the kidnapping to commit robbery offense, count 1. The objective of count 3 was for Mitchell, and Grimes, to rob Ludwig of his wallet and phone, those items in his possession. The objective of count 1 was for Mitchell, and Grimes, to kidnap Ludwig and take him to banks to use his debit card to rob him of additional money. The trial court did not abuse its discretion in determining section 654 did not apply to bar punishment for count 3. IV. Abstract of Judgment
Mitchell requests the abstract of judgment be corrected to reflect that in count 1, the jury convicted him of the crime of kidnapping for robbery. The Attorney General agrees. The jury's verdict in count 1 states that it convicted Mitchell of the crime of kidnapping to commit robbery. However, the indeterminate abstract of judgment reflected that in count 1, the jury convicted Mitchell of "kidnapping to commit robbery, rape, oral copulation." We shall order a correction to the indeterminate abstract of judgment to show Mitchell suffered a conviction in count 1 for kidnapping for robbery. (People v. Mitchell (2001) 26 Cal.4th 181, 185-186 [appellate court authority to correct clerical errors in the abstract of judgment].)
DISPOSITION
The judgment is affirmed. The clerk of the superior court is directed to prepare an amended abstract of judgment reflecting Mitchell suffered a conviction in count 1 of kidnapping for robbery and to forward a copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation, Division of Adult Operations. In all other respects, the judgment is affirmed.
O'LEARY, P. J. WE CONCUR: BEDSWORTH, J. ARONSON, J.