Filed 1/25/16 P. v. Lewis 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E062850
v. (Super.Ct.No. FVI1301449)
KAROME DYNELL LEWIS, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Debra Harris,
Judge. Affirmed.
Loleena Ansari, 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, and A. Natasha Cortina and
Christine Levingston Bergman, Deputy Attorneys General, for Plaintiff and Respondent.
I. INTRODUCTION
Defendant and appellant, Karome Dynell Lewis, and codefendant, James Michael
Wilson, were charged with one count of kidnapping Willy Neal from an apartment
complex in Las Vegas, Nevada and with transporting Neal into California. (Pen. Code,
§ 207, subd. (d).) Defendant and Wilson were tried separately and a jury convicted
defendant as an aider and abettor to the kidnapping. The trial court found defendant had
three prior strike convictions based on one incident in 1995, and denied defendant’s
Romero1 motion to dismiss two of his three prior strikes. Defendant was sentenced to an
indeterminate term of 25 years to life.
On appeal, defendant contends his kidnapping conviction must be reversed
because there was insufficient evidence connecting him to the kidnapping and, thus,
insufficient evidence to support his conviction. He further contends the trial court abused
its discretion in denying his Romero motion to dismiss two of his prior strike convictions.
We affirm the judgment, as substantial evidence supported defendant’s kidnapping
conviction, and as the trial court did not abuse its discretion in declining to dismiss two of
defendant’s prior strike convictions.
II. STATEMENT OF FACTS
A. Prosecution Evidence
At approximately 11:00 a.m. on May 21, 2013, witnesses who were at an
apartment complex in Las Vegas, Nevada heard screams of “I didn’t take it,” “I don’t
1 People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).
have it,” or “I didn’t do it,” and saw Neal being forced into the backseat of a vehicle.
According to eyewitnesses, Neal resisted attempts to be forced into a gray sports utility
vehicle until Wilson subdued Neal by slamming Neal’s head against the door of the
vehicle and then forcing Neal into the driver’s side rear seat. One witness identified the
vehicle’s license plate number. Other witnesses testified that Wilson was wearing a
white shirt, Neal was wearing a red shirt, and Wilson was significantly larger in stature
than Neal. One witness told police that Wilson had an accomplice seated in the
passenger’s side rear seat of the vehicle, and that the accomplice grabbed and held a
bloodied Neal down after Neal had been forced into the backseat. Although the
witnesses at the scene in Las Vegas were generally able to describe Wilson, Neal, and the
vehicle, none of the witnesses were able to provide a description of the accomplice.
A few hours later, a California Highway Patrol officer who was in Barstow
received a dispatch to be on the lookout for the vehicle. Around 2:00 p.m.,
approximately three hours after witnesses saw Neal being forced into the backseat of the
vehicle, the officer spotted a vehicle matching the description and license plate of the
vehicle the witnesses described. The officer followed the vehicle as it exited the freeway
and pulled into a gas station. The officer conducted a felony stop and all three
individuals were placed in handcuffs. At the time of the felony stop, two of the
individuals were seated in the backseat of the vehicle. The officer ran all three
occupants’ driver’s licenses and identified them as Wilson, Neal, and defendant, with
Wilson being the driver. The officer testified that Wilson was wearing a gray shirt and
that Neal was wearing a red shirt. Neal was crying and saying, “Take me away from
them. Take me away from them.” The officer also observed that Neal was smaller in
build compared to both defendant and Wilson, and that the victim had bruising on both
sides of his neck. Neal told the officer that the bruising was the result of being held down
by the collar. The officer arrested defendant and Wilson.
B. Defense Evidence
At trial, defendant did not testify and presented no other affirmative defense.
III. DISCUSSION
A. Substantial Evidence Shows Defendant Aided and Abetted the Kidnapping
Defendant contends his kidnapping conviction must be reversed because there was
insufficient evidence that he was the person in the backseat of the vehicle who aided and
abetted Wilson in kidnapping Neal in Las Vegas. Thus, he argues his kidnapping
conviction was not supported by substantial evidence. Not so.
Where the sufficiency of the evidence is challenged on appeal, the appellate court
“must determine from the entire record whether a reasonable trier of fact could have
found that the prosecution sustained its burden of proof beyond a reasonable doubt. In
making this determination, the reviewing court must 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. [Citations.]” (People v. Mincey (1992) 2 Cal.4th 408, 432, fn.
omitted.) “‘“Although it is the duty of the jury to acquit a defendant if it finds that
circumstantial evidence is susceptible of two interpretations, one of which suggests guilt
and the other innocence [citations], it is the jury, not the appellate court[,] which must be
convinced of the defendant’s guilt beyond a reasonable doubt. ‘“If the circumstances
reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the
circumstances might also reasonably be reconciled with a contrary finding does not
warrant a reversal of the judgment.”’ [Citations.]”’” (People v. Rodriguez (1999) 20
Cal.4th 1, 11.) Substantial evidence includes circumstantial evidence and the logical
inferences that the jury may have drawn from the evidence. (People v. Zamudio (2008)
43 Cal.4th 327, 357.) Circumstantial evidence may be used to establish identity. (People
v. Romero and Self (2015) 62 Cal.4th 1, 33.) It can also be used to connect a defendant to
the commission of a crime. (People v. Allen (1985) 165 Cal.App.3d 616, 625.)
Section 207, subdivision (d), of the Penal Code provides that: “Every person who,
being out of this state, abducts or takes by force or fraud any person contrary to the law
of the place where that act is committed, and brings, sends, or conveys that person within
the limits of this state, and is afterwards found within the limits thereof, is guilty of
kidnapping.” All persons concerned in the commission of a crime, whether as a direct
perpetrator or as an aider and abettor, are principals in the crime. (People v. McCoy
(2001) 25 Cal.4th 1111, 1116-1117.) An aider and abettor is equally as culpable as the
actual perpetrator. (Id. at p. 1120.) To be convicted as an aider and abettor, there must
be proof that the “aider and abettor act[ed] with knowledge of the criminal purpose of the
perpetrator and with an intent or purpose either of committing, or of encouraging or
facilitating commission of, the offense.” (People v. Beeman (1984) 35 Cal.3d 547, 560;
People v. Swanson-Birabent (2003) 114 Cal.App.4th 733, 740.) Because it is difficult to
prove one’s intent through direct evidence, the intent to commit an act may be proven
circumstantially. (In re Jorge M. (2000) 23 Cal.4th 866, 884.) For example, “‘the act
itself, together with its surrounding circumstances [may] generally form the basis from
which the intent of the actor may legitimately be inferred.’ [Citation.]” (People v.
Edwards (1992) 8 Cal.App.4th 1092, 1099.)
Here, witnesses testified that a man in a white shirt forced a much smaller victim
in a red shirt into the back of a sports utility vehicle and that an accomplice held the
victim down as the driver drove away. The officer testified that, approximately three
hours after the abduction, defendant, Wilson, and Neal were in the vehicle when it was
stopped in California, and that defendant and Neal were in the backseat. Wilson and
Neal matched the descriptions given by the witnesses, and the officer observed that both
defendant and Wilson were significantly larger than Neal. Neal also had bruising around
his neck, was crying, and implored the officer to “take me away from them. Take me
away from them.” Based on this evidence, the jury could have reasonably inferred that
defendant was the person who was holding Neal down in Las Vegas as Wilson drove the
vehicle away, and that, by holding Neal down, defendant intended to encourage or
facilitate the kidnapping of Neal. Thus, defendant’s conviction for aiding and abetting
the kidnapping of Neal is supported by substantial evidence.
B. The Trial Court Did Not Abuse Its Discretion in Denying Defendant’s Romero Motion
Defendant next contends the trial court abused its discretion when it refused to
strike two of his three prior strike convictions that arose from the same 1995 offense. We
reject this contention.
The “Three Strikes initiative, as well as the legislative act embodying its terms,
was intended to restrict courts’ discretion in sentencing repeat offenders.” (Romero,
supra, 13 Cal.4th at p. 528.) Thus, when a court is asked to dismiss prior strikes in
“furtherance of justice” (Pen. Code, § 1385, subd. (a)), it “must consider whether, in light
of the nature and circumstances of his present felonies and prior serious and/or violent
felony convictions, and the particulars of his background, character, and prospects, the
defendant may be deemed outside the scheme’s spirit, in whole or in part, and hence
should be treated as though he had not previously been convicted of one or more serious
and/or violent felonies.” (People v. Williams (1998) 17 Cal.4th 148, 161.) Examples of
factors that a court may consider include the defendant’s age (People v. Gaston (1999) 74
Cal.App.4th 310, 321-322), the length of time between the commission of the prior
strikes and the current crime (People v. Bishop (1997) 56 Cal.App.4th 1245, 1251), or
whether the current or past offenses involved violence (People v. Myers (1999) 69
Cal.App.4th 305, 308-310). Most importantly, the court must look to the defendant’s
conduct between the commission of the strike and the current crime. (People v. Williams,
supra, at p. 163.) Whether a defendant has suffered misdemeanor violations, or violated
parole or probation, are aggravating factors that the court may consider in denying a
Romero motion. (People v. Barrera (1999) 70 Cal.App.4th 541, 553-555; People v.
McGlothin (1998) 67 Cal.App.4th 468, 475.) Also, a defendant who suffers multiple
convictions for violent crimes arising out of a single act, but that affects multiple victims,
can be deemed to have suffered multiple strikes under the “Three Strikes” law. (People
v. Rusconi (2015) 236 Cal.App.4th 273, 280-281.)
A court’s failure to dismiss or strike a prior conviction allegation is subject to
review under the deferential abuse of discretion standard. (People v. Carmony (2004) 33
Cal.4th 367, 374.) “‘“[T]he burden is on the party attacking the sentence to clearly show
that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such
a showing, the trial court is presumed to have acted to achieve legitimate sentencing
objectives, and its discretionary determination to impose a particular sentence will not be
set aside on review.”’” (Id. at pp. 376-377.) The trial court is not required to “‘explain
its decision not to exercise its power to dismiss or strike’ . . . . [Citation.]” (Id. at p.
376.) Any error in declining to strike a prior felony conviction “must affirmatively
appear on the record. On a silent record in a post-Romero case, the presumption that a
trial court ordinarily is presumed to have correctly applied the law should be applicable.
[Citations.]” (People v. Gillispie (1997) 60 Cal.App.4th 429, 434.) “[T]he trial court
may ordinarily rely on the record of conviction to justify the denial of relief under Penal
Code section 1385.” (Ibid.)
Here, the court summarily denied defendant’s Romero motion without explaining
its grounds for denial. Defendant thus contends that the court abused its discretion in
denying the motion, because the record does not indicate why the court denied the
motion. But the trial court was not required to explain its reasons, and the record
supports its decision to deny defendant’s Romero motion. Defendant’s three prior strikes
arose from a 1995 incident where defendant, who was then 19 years old, and two
companions committed an armed robbery of a restaurant. Defendant was convicted of
one count of burglary, six counts of robbery, one count of attempted robbery, and seven
counts of false imprisonment, and received a prison sentence of 10 years 4 months. He
was released from prison around 2001, but violated parole in 2002 and 2003. He was
also charged in New Mexico, Connecticut, and California with drug-related offenses in
2005, 2008, and 2011, respectively, before being arrested in 2013 for the current offense.
Both the past strikes and the current offense involved the use of violence, and
defendant has repeatedly run afoul of the law between the commission of the prior strikes
and of the current crime. Defendant points out that he “had been out of custody for
around 13 years [since his three prior strikes], where he did not sustain any new
convictions.” But as noted, between the time he was released from prison in 2001 and
the kidnapping in 2013, he violated parole twice and was arrested three times for drug-
related offenses. Based on his conduct between the commission of the prior strikes and
the current crime, the trial court reasonably determined that defendant fell within the
spirit of the Three Strikes law, and it did not abuse its discretion when it declined to
dismiss two of defendant’s three prior strikes.
IV. DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
KING
J.
We concur:
HOLLENHORST
Acting P. J.
MILLER
J.