Filed 12/9/13 P. v. Riley CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E056633
v. (Super.Ct.No. FSB1100293)
DEWAYNE MAURICE RILEY, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Duke D. Rouse,
Judge. (Retired judge of the San Bernardino Super. Ct. assigned by the Chief Justice
pursuant to art. VI, § 6 of the Cal. Const.) Affirmed in part; reversed in part with
directions.
Richard de la Sota, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Meagan J. Beale, and William M.
Wood, Deputy Attorneys General, for Plaintiff and Respondent.
1
I
INTRODUCTION1
A jury convicted defendant Dewayne Maurice Riley of 12 offenses arising from
the gang-related robbery of about $169 from a Jack in the Box restaurant, while
accompanied by codefendant Calvin Ray Vance, a fellow gang member.2 Defendant was
the gunman. The court sentenced defendant to an aggregate prison term of 243 years
(225 years to life plus 18 years).
On appeal defendant challenges the five convictions of aggravated kidnapping for
robbery (§ 209, subd. (b)(1), counts 1 through 5). We reverse defendant’s conviction on
count 1 for aggravated kidnapping and order the trial court to impose the stayed sentence
for robbery (§ 211) on count 6. Otherwise, we reject defendant’s contentions and affirm
the judgment.
II
STATEMENT OF FACTS
A. The Jack in the Box Robbery
About 9:00 p.m. on January 18, 2011, five employees were working at a Jack in
the Box restaurant located in Colton, California: Javid Bholat, the manager; Monica
Ramirez, the cashier; Guadalupe Moreno and Carlos Melendez, both cooks; and Ariadne
Cedillo, the team leader.
1 All statutory references are to the Penal Code unless stated otherwise.
2 Vance’s appeal is the subject of a separate appeal, People v. Vance, E054460.
2
In addition to a kitchen area, the food restaurant has an interior manager’s office,
five by 13 feet, with two safes. The sink area is behind the office and the break room is
behind the sink area. The sink area and the break room are at the back of the restaurant.
Bholat, Melendez and Cedillo were standing in the kitchen near the deep-fat fryer.
Near the back of the restaurant, Moreno was washing dishes at the sinks and Ramirez was
coming out of the break room. A hooded, masked man—wearing gloves and carrying a
handgun—jumped over the front counter, demanded money, and herded all five
employees into the manager’s office in the center of the restaurant. All the employees
were afraid and felt threatened.
Bholat, the manager, testified that the gunman singled him out and, pointing the
gun, asked, “Where is the money?” Although there were two open cash registers at the
counter and the drive-through window, Bholat told him there was cash in a safe in the
office. At direction of the gunman, Bholat and the other employees went into the office.
After Bholat opened one safe and gave the robber the small amount of money
($17) inside, the robber demanded money from the other safe. Bholat explained that it
was equipped with a 10-minute delay. When the robber objected to waiting, Bholat
instructed Cedillo to get money from the cash register at the counter. Cedillo retrieved
some cash and gave it to the robber who jumped the counter and ran out the north door of
the restaurant.
While Bholat called 911, Cedillo watched the robber get in a black four-door
vehicle positioned outside the north door. Defendant later identified the car as a
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Chevrolet Caprice, owned by codefendant Vance’s mother. The vehicle left the
restaurant and proceeded at a high speed to the 215 freeway.
B. The Apprehension of Defendant
The black Caprice led two Colton police officers, Gary Gruenzner and Roberto
Dimas, in a high speed chase on the freeway until the Caprice exited the freeway and
collided with a truck before stopping. After the collision, the truck driver saw a person
exit the black vehicle and take off running.
When Dimas arrived at the scene, he watched a Black male, identified as
defendant, exit on the driver’s side and start running. The front passenger door had been
damaged and could only be opened by force. Dimas chased defendant and captured him
in the backyard of a nearby house, where he was taken into custody after a brief struggle.
The police found a black cotton glove near the scene. Defendant had a wad of cash3 in
his pocket, corresponding to the money that Cedillo had given the masked robber.
Defendant wore a pair of Nike shoes, which matched the shoe print lifted from the dining
room floor of the restaurant.
Vance was discovered hiding next to a hedge in a nearby church courtyard. The
Caprice contained a hooded sweatshirt, various hats and gloves, and a loaded .38 special
Rosse handgun, resembling the gun used in the robbery.
3 Forty-four $1 bills, nineteen $5 bills, and three $10 bills.
4
C. Gang Evidence
A gang expert, San Bernardino Police Officer Raymond Bonshire, testified that
defendant and Vance are both active members of the Projects criminal street gang.
Defendant and Vance both had multiple gang tattoos, indicating long-time gang
membership. The gang territory is west of the 215 freeway in San Bernardino.
Bonshire described the history and culture of the Projects gang, its name, color,
and symbols. He explained how gang admission works and the gang’s activities. He
estimated the Projects’s membership was about 100. The primary activities of the
Projects street gang are narcotics sales, firearm possession, burglaries, robberies, and
shootings, including murders. Gang members commit crimes together. Committing a
robbery elevates a gang member’s status in several ways: it is “putting in work . . . for
the gang”; it demonstrates active membership and “good standing”; it provides money to
buy clothing and other status symbols and recruit new members; and it provides money to
finance the gang’s other activities.
Bonshire described three predicate offenses: a 2009 grand theft committed by
gang member, Tommy Walker; two 2009 armed robberies with a gang enhancement
committed by gang member, Cedric Timmons; and two 2008 robberies committed by
gang member, Broderick Moore.
Based on hypothetical questions, Bonshire opined that the Jack in the Box crimes
and flight were committed by gang members working together and would enhance their
status and reputations by demonstrating their willingness to commit crimes with other
gang members, their disregard of the law, and their willingness to do anything for the
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gang. Choosing to commit the crimes outside the gang’s territory facilitates commission
of the crimes because it occurs away from the local police department familiar with the
gang, its members, and the gang injunction. Bonshire said that the crimes would be
discussed within the gang community and the community in general, thereby enhancing
the gang’s reputation and the fear and intimidation experienced by potential crime
victims and witnesses. He also testified that gang members typically order victims to
move around during robberies in order to intimidate them.
III
AGGRAVATED KIDNAPPING
Defendant challenges the sufficiency of evidence on all five of his convictions for
aggravated kidnapping for robbery.4 (§ 209, subd. (b)(1).) Under section 209,
aggravated kidnapping, requires “movement of the victim . . . 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.” (§ 209, subd. (b)(2);
In re Earley (1975) 14 Cal.3d 122, 128.) Defendant contends the movement of all five
employees was insufficient evidence of asportation because it was “merely incidental” to
accomplishing the robbery and did not increase the risk of harm to them. As discussed
below, we conclude that the conviction on count 1 for aggravated kidnapping of Bholat,
the manager, should be reversed but the remaining convictions are affirmed.
4 Implicit in our analysis is our conclusion that defendant committed kidnapping.
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In People v. Daniels (1969) 71 Cal.2d 1119, 1138, the California Supreme Court
cited a comment by “[t]he learned draftsmen” of the Model Penal Code about the
“‘absurdity of prosecuting for kidnapping in cases where the victim is forced into his own
home to open the safe, or to the back of his store in the course of a robbery.’” The court
reviewed this issue comprehensively in People v. Vines (2011) 51 Cal.4th 830, 869-871,
in which defendant moved the employees between 80 and 200 feet and locked them
downstairs in a walk-in freezer to accomplish a robbery. Vines, at page 869, applied a
deferential standard of review. The Vines court commented that the two elements of
incidental movement and increased risk of harm “are not mutually exclusive but are
interrelated.” (Id. at p. 870, citing People v. Rayford (1994) 9 Cal.4th 1, 12.) With
regard to the first prong, the jury considers the scope and nature of the movement—
including the actual distance a victim is moved—but there is no minimum distance.
(Vines, at p. 870.) The second prong involves consideration of factors such as the
decreased likelihood of detection, the danger inherent in the victims’ foreseeable attempts
to escape, and the attacker’s enhanced opportunity to commit additional crimes. (Ibid.)
Although these principles seem fairly straightforward, California courts have applied
them differently depending on the factual circumstances.
Some California cases have found the brief movement of robbery victims within a
business establishment or residence insufficient to constitute aggravated kidnapping:
“[I]ncidental movements are brief and insubstantial, and frequently consist of movement
around the premises where the incident began.” (People v. Diaz (2000) 78 Cal.App.4th
243, 247; People v. Williams (1970) 2 Cal.3d 894 [service station attendant locked inside
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station bathroom and then moved around premises]; People v. Mutch (1971) 4 Cal.3d
389, 397-399 [movement of victims 30 to 40 feet through different rooms inside a
business]; People v. Morrison (1971) 4 Cal.3d 442, 443 [movement of victim up and
down stairs and into rooms of private residence]; People v. Smith (1971) 4 Cal.3d 426,
427 [movement of hotel clerk from office to second floor room of hotel]; People v. John
(1983) 149 Cal.App.3d 798, 804, [movement of victim through different buildings in
residence]; People v. Hoard (2002) [Fourth Dist., Div. Two] 103 Cal.App.4th 599, 607
[movement of two victims to the back office of a jewelry store]; People v. Washington
(2005) 127 Cal.App.4th 290, 295-296 [a bank officer and teller moved into a bank
vault].)
On the other hand, in cases that are factually similar, courts have concluded that
brief movement was not incidental to robbery and increased the risk of harm to the
victims. (People v. James (2007) 148 Cal.App.4th 446, 457, [coerced movement of one
person when the intended target of the robbery was another person]; People v. Corcoran
(2006) 143 Cal.App.4th 272, 279 [movement of victims about 10 feet from outside a
bingo hall to a windowless back office].)
In Vines, as in this case, the forcible movement of the victims was also limited to
movement inside the premises when a masked, armed robber herded a McDonald’s
restaurant manager and other employees into the manager’s office where a safe was
located. In Vines, however, the defendant also directed the victims from the front of the
store, down a hidden stairway, and into a locked freezer. The scope and nature of this
movement was not “merely incidental” to the commission of the robbery Additionally,
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the victims suffered an increased risk of harm because of “the low temperature in the
freezer, the decreased likelihood of detection, and the danger inherent in the victims’
foreseeable attempts to escape such an environment.” (People v. Vines, supra, 51 Cal.4th
at p. 871.) On this record, the Supreme Court concluded sufficient evidence of
asportation supported defendant’s convictions for aggravated kidnapping.
It is difficult to extract a rule from these cases which seem to reach opposing
conclusions. Nevertheless, a significant factor in all the cases is whether the
movement—whatever the distance—was necessary to obtain control of the property and
facilitate the robbery.
In People v. Hoard, supra, 103 Cal.App.4th at pages 601-602, 607, the defendant
entered a jewelry store and moved two female employees 50 feet at gunpoint to the back
office, where he bound them with duct tape. After confining them to the back room, he
robbed the store. In reversing the convictions for aggravated kidnapping, this court noted
that “[c]onfining the women in the back office gave defendant free access to the jewelry
and allowed him to conceal the robbery from entering customers who might have
thwarted him.” (Id. at p. 607.) Accordingly, “[d]efendant’s movement of the two women
served only to facilitate the crime with no other apparent purpose.” (Ibid.) The
asportation of the victims was “merely incidental” to the robbery and did not increase the
risk of harm.
In People v. Washington, supra, 127 Cal.App.4th at pages 295-296, two
defendants robbed a bank. While armed with a gun, one defendant jumped over the front
counter and directed two tellers to empty the cash drawers. The second defendant, also
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armed, entered the bank manager’s office and demanded money. The manager asked a
teller to assist her in the vault. The manager and teller moved 14 or 15 feet into the vault.
In holding that the movement of both victims was incidental to the robbery and did not
increase the risk of harm, the court observed “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.” (Id. at p. 300.) Crossing thresholds
within the business to obtain property cannot elevate robbery to aggravated kidnapping.
(Ibid.) Given that the primary object of a robbery is to obtain money, the movement of
employees to that area to facilitate that crime must be deemed incidental. (Id. at p. 303.)
Corcoran, the bingo hall robbery, recognized some distinctions in its discussion of
Hoard and Washington. In Washington, “movement was necessary to obtain the money
and complete the robbery[. I]n the present case the victims were not taken to the location
of the money the robbers sought to obtain. In Washington, ‘there was no excess or
gratuitous movement of the victims over and above that necessary to obtain the money in
the vault.’ (Washington, supra, 127 Cal.App.4th at p. 299.) In the instant case, the
movement of the victims had nothing to do with facilitating taking cash from the bingo
hall; defendant and his accomplice had aborted that aim, and their seclusion of the
victims in the back office under threat of death was clearly ‘excess and gratuitous.’”
(People v. Corcoran, supra, 143 Cal.App.4th at pp. 279-280.) Similarly, when compared
with Hoard, “the movement of the victims did not serve to facilitate the forcible
attempted taking of money from the bingo hall. Rather, it served other purposes squarely
recognized by the Supreme Court . . . as supporting a finding of a substantial increase in
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danger: removing the victims from public view, decreasing the odds that the attempted
robbery of cash from the bingo hall would be detected, increasing the risk of harm should
any victim attempt to flee, and facilitating the robbers’ escape. Indeed, there was no
purpose for moving the victims to the back office except to facilitate these aims. In
context, this movement was not merely brief and trivial; to the contrary, it substantially
increased the risk of harm beyond that inherent in the crime of attempted robbery.”
(Corcoran, at p. 280.)
In this case, a masked, armed robber, later identified as defendant, burst into the
Jack in the Box, making demands for money. Bholat, the manager, told defendant the
money was in the safe and defendant demanded Bholat open the safe. At the same time,
the robber directed the other four employees to go into the manager’s office while Bholat
opened the safe. Because there was very little money in the safe, Bholat—not
defendant—instructed Cedillo to get money from the cash register at the counter. The
evidence shows that defendant told Bholat to retrieve money from the safe in the office to
facilitate the robbery, making the movement of Bholat incidental to the robbery of the
safe.
Based on Vines, Corcoran, Hoard, and Washington, we conclude the brief
movement of Bholat to the office where the safe was located was incidental to the
robbery. As conceded by the People, there was no way to accomplish the robbery from
the safe except for Bholat to go into the office. Furthermore, although there was also
money in the cash register, when Cedillo went to the cash register, she was instructed to
do so by Bholat, not defendant. However, the movement of the four employees, other
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than Bholat, into the office, was not done to facilitate the robbery. Placing them in the
enclosed space of the manager’s office, out of public view, and threatened with a gun
certainly caused them to suffer the threat of increased risk of harm. Accordingly,
viewing the evidence in the light most favorable to the People (People v. James, supra,
148 Cal.App.4th at p. 453), the record was insufficient as a matter of law to support the
verdict as to count 1 (Bholat) but substantial evidence supported the kidnapping
convictions as to counts 2 through 5.
IV
DISPOSITION
We reverse count 1 for aggravated kidnapping and direct the trial court to impose
the stayed sentence on count 6 and to forward a corrected abstract of judgment to the
Department of Corrections and Rehabilitation. Otherwise, we affirm the judgment.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J.
We concur:
McKINSTER
Acting P. J.
RICHLI
J.
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