Filed 10/1/14 P. v. Rodgers CA2/2 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 SECOND APPELLATE DISTRICT DIVISION TWO

THE PEOPLE,
Plaintiff and Respondent,

v.
TYLER LEE RODGERS,
Defendant and Appellant. B250622
(Los Angeles County Super. Ct. No. YA085322)

APPEAL from a judgment of the Superior Court of Los Angeles County. Mark S. Arnold, Judge. Affirmed as modified.

Tanya Dellaca, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Lance E. Winters, Assistant Attorney General, Victoria B. Wilson and Idan Ivri, Deputy Attorneys General, for Plaintiff and Respondent.2 Defendant and appellant Tyler Lee Rodgers (defendant) appeals from the judgment entered upon his conviction of attempted murder, a ggravated kidnapping, robbery, and burglary. He contends that substantial evidence did not support the aggravated kidnapping convicti on, that the sentence imposed for robbery was prohibited double punishment, and that he is entitled to three additional days of presentence custody credit. We agree that defendant is entitled to three additional days of presentence custody credit, but find no merit to defendant’s rema ining contentions. We thus modify the judgment to add the credits, but otherwise affirm. BACKGROUND Procedural history Defendant was charged in a four-count info rmation as follows: in count 1, with the attempted willful, deliberate, and premed itated murder of Naveed Mirza (Mirza), in
violation of Penal Code secti ons 664 and 187, subdivision (a); 1 in count 2, with kidnapping to commit robbery in violation of se ction 209, subdivision (b)(1); in count 3, with second degree robbery in vi olation of section 2 11; and in count 4, with first degree residential burglary in violation of section 459. The informati on also alleged as to counts 1, 2, and 3, that defendant personally inflic ted great bodily injury upon the victim within the meaning of 12022.7, subdivision (a), and that defendant personally used a firearm during the commission of the crimes within th e meaning of section 12022.53, subdivision (b). For purposes of section 667, subdivision (a)(1), and the “Three St rikes” law (§§ 667, subd. (b)-(i), 1170.12, subd. (a )-(d)), the information alleged that defendant had suffered a prior serious or violent felony co nviction or juvenile adjudication. Defendant waived his right to a jury trial, and after a court trial, he was convicted of all counts as charged. In addition, the tr ial court found true the allegations that the attempted murder was willful, deliberate, and premeditated, that de fendant had personally used a firearm during the commission of the cr ime, that defendant inflicted great bodily injury upon the victim, and that defendant had suffered a prior robbery conviction.

1 All further statutory references are to the Penal Code, unless otherwise indicated.3 On June 26, 2013, the trial court sentenced defendant to a total term of 40 years and eight months to life in prison. First, as to count 3, the court imposed the upper term of five years for the robbery of Mirza, doubl ed to 10 years as a second strike, plus 10 years for the gun use (§ 12022.53, subd. (b)). The court also imposed a three-year term for inflicting great bodily inju ry (§ 12022.7, subd.(a)), which the cour t stayed pursuant to section 654. As to count 4, the residential burglary, the trial court imposed one-third the middle term, 16 months, doubled as a second strike to two years eight months, to run consecutively. As to count 2, aggravated kidnapping, th e court imposed a consecutive life term with the seven-year minimum paro le period doubled to 14 years due to the second strike, plus 10 years for the gun use, three years for in flicting great bodily injury, and a five-year habitual criminal enhancement. As to count 1, atte mpted murder, the trial court sentenced defendant to a concurrent life term, with the minimum parole period doubled to 14 years as a second strike, to be served concu rrently with count 1. The enhancement for great bodily injury was imposed and stayed pursuant to section 654. Defendant received credit for 306 days of ac tual custody and 45 da ys of conduct credit for a total of 351 days. The court also imposed mandatory fines and fees, ordered defendant to pay victim restitution, and sc heduled a later hearing to determine the

amount. Defendant filed a timely notice of appeal from the judgment. Prosecution evidence Dana Hadnett’s home was bur glarized on June 4, 2012, and multiple items were stolen. Defendant’s fingerprints were found inside the house, as well as DNA which was determined to be a possi ble match to defendant. On August 16, 2012, shortly before 3:00 p.m., defendant appeared in the Cigar and Smoke Shop, where shop employee Mirza was the only person present. Mirza testified to the events of that day and na rrated surveillance videos whic h had captured most of the incident. Mirza was at the cash register when defendant entered the store carrying a long cardboard box in which he wa s hiding a shotgun. Defend ant took the shotgun from the box, pointed it at Mirza’s chest, and forced Mirza in to the back room of the store. There4 he ordered Mirza to ha ndcuff himself and threatened to k ill Mirza if he failed to comply. Defendant then returned to th e front of the store, where he closed the front door and security gate, giving the store the appearance of being closed. Wh en defendant returned to the back room he pointed the gun at Mirza, loaded a bullet and asked where the money was kept. When Mirza replied that it was kept in the cash registe r, defendant collected that money and returned, asking about additi onal money. Mirza responded that he did not know of any other money. Defendant threatened to kill him, but Mirza reiterated that he did not know of any more money. After searching the front room again, defendant returned to Mirza, again demanded to know where more money was kept, and threatened him. Mirza continued to reply that he did not know of any more money. Defendant replied: “Okay. If you don’t know the money, then I’m going to check your pants. . . . Do you have some money?” Defendant then took Mirza’s wallet from his pants and pocketed th e money he found in it, along with Mirza’s driver’s license. De fendant then said, “If you say anything about this incident, I’m going to shoot you. I’m going to kill you.” Defendant also threatened to shoot Mirza until he to ld him where to shut down the video cameras. Defendant then took a knife from hi s pocket, cut wires until the images disappeared from the surveillanc e monitors, and told Mirza to stand up and extend his neck. When Mirza complied, defendant cut Mi rza’s throat from one side to the other. Bleeding profusely, Mirza lay down and applied pressure to the wound with his hands. Defendant again asked him wher e the money was, and again Mirza said it was in the cash register. Defendant replied, “No. You know the money. You know the money. You work here.” When Mirza deni ed knowing more, defendant said , “I’ll shoot you. I’ll cut you,” and with the same knife, stabbed him thr ee times in the neck. Defendant then took a long metal wire, placed it at the front of Mi rza’s neck and pressed back with it, causing more bleeding. When Mirza lay back down, defendant ag ain demanded to know where the money was, and again Mirza responded that he did not know. Defendant again threatened to shoot Mirza and ordered him to extend hi s neck. Still bleeding heavily, Mirza could5 barely breathe or speak, and felt like he was dyi ng; but afraid that he would be shot if he did not, he complied. Defenda nt then stabbed Mirza in the cheek. Mirza experienced more bleeding, pain, and loss of sensation. Defendant then stabbed Mirza multiple times on the other side of his neck. Mirza lay down again as defendant kept asking about money and threatening to kill hi m. Mirza lay there, unable to speak, falling in and out of consciousness. Defendant went to the fro nt, came back, again asked for money, and when Mirza did not tell him, defendant fired the shotgun gun once and tried to fire a second time, but nothing happened. Defend ant then stabbed Mirza in one hand and slashed the other hand. Defendant finally left the store and Mirza managed to stagger out the front door of the shop, where he screamed for help. Passersby helped him and he was taken by ambulance to the hospital, where he underwent surgery. Two days later, Mirza selected defendant’s photograph from a photographic lineup and iden tified him as his assailant. Manhattan Beach Police Detective Michael Rosenberger investigated the incident. He testified that the front part of the stor e and the back room were separated by an Lshaped hallway, with one segment of about six feet long, and another about five feet long. The distance between the cash register and the back room was about 40 feet. Detective Rosenberger interviewed defend ant after his arrest on August 23, 2012. A recording of the interview was played. In essence, defe ndant admitted that he put the shotgun in a box, went to the store to steal, took about $ 240, and cut the victim’s throat in order to eliminate the person who could identify him; he then left and threw the shotgun, knife, and Mirza’s wallet into the Los Angeles River. The defense presented no evidence. DISCUSSION I. Kidnapping for robbery Defendant contends that the evidence was insufficient to suppor t his conviction of count 2, kidnapping to commit robbery. In particular, he contends that the evidence showed that the movement of the victim was merely incidental to the commission of the robbery.6 When a criminal conviction is challenged as lacking evidentiary support, “the court must review the whole record in the lig ht most favorable to the judgment below to determine whether it discloses substantial evidence -- that is, evidence which is reasonable, credible, and of so lid value -- such that a reasona ble trier of fact could find the defendant guilty beyond a reasonable doubt.” ( People v. Johnson (1980) 26 Cal.3d 557, 578; see also Jackson v. Virginia (1979) 443 U.S. 307, 318-319.) We must presume in support of the judgment the existence of every fact the jury could reasonably deduce from the evidence. ( People v. Kraft (2000) 23 Cal.4th 978, 1 053.) We do not reweigh the evidence or resolve conf licts in the evidence. ( People v. Young (2005) 34 Cal.4th 1149, 1181.) Reversal on a su bstantial evidence ground “is unwarranted unless it appears ‘that upon no hypothesis whatever is there sufficient substantia l evidence to support [the conviction].’ [Citation.]” ( People v. Bolin (1998) 18 Cal.4th 297, 331.) Kidnapping for robbery, a form of a ggravated kidnapping, consists of two elements: (1) “the movement of the victim is beyond that merely incidental to the commission of [the robbery]”; and (2) the move ment “increases the risk of harm to the victim over and above that necessarily present in [the robbery].” (§ 209, subd. (b)(2).) 2 The two prongs of aggravated kidnapping “a re not distinct, but interrelated, because a trier of fact cannot consider the significance of the victim’s changed environment without also considering whether that change resulted in an increase in the risk of harm to the victim.” ( Martinez, supra , 20 Cal.4th at p. 236.) Each case turns on its own facts, which

2 In section 209, subdivision (b)(2), the Legislature codified the “ Daniels test” which, as formulated in People v. Daniels (1969) 71 Cal.2d 1119, 1139 ( Daniels ), required a substantial increase in the risk of harm. (S ee Stats. 1997, ch. 817, § 2.) However, the Legislature omitted that require ment, and the second element now simply requires a risk of harm greater than ne cessarily present in the robbery. ( People v. Martinez (1999) 20 Cal.4th 225, 232, fn. 4 ( Martinez ).) A substantial increase in risk remained the requirement only for crimes co mmitted prior to the effective date of the statute. (See People v. Vines (2011) 51 Cal.4th 830, 869 & fn. 20; People v. Robertson (2012) 208 Cal.App.4th 965, 981.)7 “must be considered in the context of the totality of its circumstances.” ( People v. Dominguez (2006) 39 Cal.4th 1141, 1152.) Defendant contends that only the first prong need be consider ed here, suggesting that the only reasonable conclusion from the totality of the circumstance was that the movement of Mirza to the back room was me rely incidental to th e robbery. However, defendant’s approach fa ils to take in the totality of the circumstances, as it is narrowly focused on the circumstance that Mirza was moved to another room of the same business. Defendant observes that some co urts have found that the move ment of a victim within a business to be incidental to a robbery. However, in the cases cited by defendant, the movement was considered incidental becaus e it was no greater than that necessary to facilitate the theft and did not substantially increase the risk of harm to the victim over that inherent in the robbery. (See People v. Morrison (1971) 4 Cal.3d 442, 443; People v. Williams (1970) 2 Cal.3d 894, 899-900, 902-903; People v. Killean (1971) 4 Cal.3d 423, 424; People v. Smith (1971) 4 Cal.3d 426, 427; People v. John (1983) 149 Cal.App.3d 798, 805-806.) In fact, there is no “rigid ‘indoor-outd oor’ rule” that renders the movement of a victim within the same premises in cidental as a matter of law. ( People v. James (2007) 148 Cal.App.4th 446, 455-456.) Further, ther e is no minimum distance a victim must be moved to satisfy the first prong of the test. ( Martinez, supra , 20 Cal.4th at p. 232.) Movement may be incidental to a crime if it is insubstantial a nd intended solely to facilitate the commissi on of the crime. ( People v. James , at p. 453.) For example, movement of two bank employees from a public area into the area of the vault which required two employees to open, was found to be incidental to the robbery. ( People v. Washington (2005) 127 Cal.App.4th 290, 299- 301.) A hypothetical example of incidental movement was given in Daniels : “‘A enters a liquor store and orders the clerk, who is stocking the shelves, to go to the cash register and hand over the money. The clerk moves ten feet to the cash register and tu rns over the money to A . . . .’ [Citation.]” ( Daniels, supra , 71 Cal.2d at p. 1134, fn. 8.)8 Defendant relies primarily on a comparison with the facts of People v. Hoard (2002) 103 Cal.App.4th 599, in which the defe ndant moved two employees 50 feet to the back office of a jewelry store and tied them up, and the movement was found to have no apparent purpose other than to facilitate th e robbery. Defendant argues that securing Mirza in the back room had no purpose othe r than having free access to the premises in order to search for as much money as he could find. He thus concludes that the movement was merely incidental to the robber y. Defendant oversimplifies the analysis in Hoard , in which the court also co nsidered the absence of any substantially increased risk of harm to the victims posed by the movement. ( Id . at p. 607.) In any event, the movement of Mirza was neither insubstantial nor intended solely to facilitate the commission of the crime. Th e evidence did not mere ly show that Mirza was simply moved out of sight to keep him out of view or from interfering while defendant grabbed as much money as he coul d. He was moved a substantial distance from the public area of the store, through two sections of hallway to a secluded room, so that defendant could violently interrogate hi m regarding the location of money and about the surveillance cameras, and u ltimately eliminate him as a w itness to the robbery. The movement of Mirza was substantial and exce ssive under the circumstances, and it clearly increased his risk of harm over and above fa cilitating the grabbing of money. It thus cannot be deemed merely in cidental to robbery. ( Daniels, supra , 71 Cal.2d at pp. 1138- 1139; Washington, supra , 127 Cal.App.4th at p. 299.) We conclude from all the circumstances that the evidence was substantial, such that a reasonable trier of fact could find the defendant guilty of kidnapping for ro bbery beyond a reasonable doubt. II. Section 654 Defendant contends that th e consecutive sentence imposed as to count 3 must be stayed pursuant to section 654. “An act or omission that is punishable in different ways by diffe rent provisions of law shall be punished under the provision th at provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision.” (§ 654, subd. (a).) Section 654 prohibits punishment fo r two crimes arising9 from an indivisible course of conduct. ( People v. Hester (2000) 22 Cal.4th 290, 294.) “Whether a course of criminal conduct is divi sible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. If all of the offenses were incident to one objective, the defendant may be punished for any one of such offens es but not for more than one.” ( Neal v. State of California (1960) 55 Cal.2d 11, 19, disa pproved on other grounds by People v. Correa (2012) 54 Cal.4th 331, 334, 336.) “Because of the many differing circumstan ces wherein criminal conduct involving multiple violations may be deemed to arise out of an ‘act or omission,’ there can be no universal construction which di rects the proper applicati on of section 654 in every instance. [Citation.]” ( People v. Beamon (1973) 8 Cal.3d 625, 636-637 ( Beamon ).) Thus, whether a course of criminal conduct is divisible presents a factual issue for the trial court, and we will uphold its ruling if supported by substa ntial evidence. ( People v. Coleman (1989) 48 Cal.3d 112, 162.) “Whether se ction 654 applies in a given case is a question of fact for the trial court, which is vested with broad latitude in making its determination. [Citations.] Its findings will not be reversed on appeal if there is any substantial evidence to support them. [C itations.] We review the trial court’s determination in the light most favorable to the respondent and presume the existence of every fact the trial court could reasonabl y deduce from the eviden ce. [Citation.]” ( People v. Jones (2002) 103 Cal.Ap p.4th 1139, 1143.) Here, the trial court found that defendant intended two separate robberies, one to steal from the shop and one to steal Mirza’s wallet. It was on the basis of the wallet robbery that the court convicted defendant of count 3 and found section 654 inapplicable. Implicit in the court’s finding is that the two robberies were incident to separate objectives. To support his contention that th e trial court erred, defendant relies on the rule that the mere taking of multiple items in the course of a robbery does not create multiple robberies subject to separate sentences. (See People v. Bauer (1969) 1 Cal.3d10 368, 377-378.) 3 Citing Beamon, supra , 8 Cal.3d at pages 639- 640, and other cases decided on their particular facts, defenda nt observes that mu ltiple punishment for kidnapping for robbery and for committing the u nderlying robbery has of ten been barred. (See also People v. Milan (1973) 9 Cal.3d 185, 197; People v. Thomas (1994) 26 Cal.App.4th 1328, 1335-1336; People v. Davis (1987) 191 Cal.App. 3d 1365, 1368-1369.) The application of section 654 depends upon the circumst ances of the particular case; for example, as respo ndent notes, “multiple punishme nt may be imposed where the defendant commits one offense with one intent, then, as an afterthought, forms the independent intent to commit a se cond offense. [Citations.]” ( People v. Douglas (1995) 39 Cal.App.4th 1385, 1393.) Thus, the facts may demonstrate separate objectives even though they were carried out simultaneously. ( People v. Latimer (1993) 5 Cal.4th 1203, 1211-1212.) In Latimer , the California Supreme Court cited with approval an example more analogous to the fact s of this case than those cited by defendant. ( Id . at p. 1212, citing People v. Porter (1987) 194 Cal.App.3d 34, 37-39 ( Porter ).) In Porter , the defendant robbed the victim of his wallet wh ere the victim’s ATM card was found. The defendant then forced the victim to go to a nearby AT M to obtain more money. ( Porter,

supra , at p. 38.) The court held: “A reas onable inference from the record is that appellant and his companion initia lly planned only to rob the vi ctim of the contents of his wallet, but thereafter came up with a new id ea: kidnapping the victim to his bank to compel him to withdraw money from his account by means of what they thought was an automated teller card. [Citation.]” ( Ibid .; also cf. People v. Smith (1992) 18 Cal.App.4th 1192, 1197-1198.) Similarly here, substantial evidence suppor ts the trial court’s implied finding that defendant formed a new objective after kidna pping Mirza for the purpose of stealing the store’s money. Between each of several sear ches of the store, defendant returned to Mirza, demanded to know where more money was kept, and thre atened to kill him. After

3 Defendant relies on People v. Brito (1991) 232 Cal.App.3d 3 16, to illustrate this point. As that case did not involve secti on 654 or multiple punishment, it is unhelpful here.11 Mirza repeatedly said that he did not know, defendant announc ed what appeared to be an alternative objective: “Okay. If you don’t know the money, then I’m going to check your pants. . . . Do you have some mone y?” Defendant indicate d his frustration with Mirza’s ignorance of the whereabouts of the st ore’s money by stabbing him in the neck after he said, “You know the money. You work here.” A reasonable inference may be drawn from defendant’s actions and his words, particularly “Okay” and “then,” that defendant intended to steal money only from the store, but decided to steal from Mirza only after he became frustrated with Mirz a’s responses. We conclude that the circumstances of this case support the trial cour t’s ruling that section 654 did not apply to
count 3. III. Additional custody credit Defendant contends that th e trial court incorrectly calcu lated the number of days spent in custody prior to sentencing. Respon dent agrees. “Calculation of custody credit begins on the day of arrest and continues th rough the day of sentencing. [Citation.]” ( People v. Rajanayagam (2012) 211 Cal.App.4th 42, 48.) Defendant was arrested August 23, 2012, and sentenced June 26, 20 13. He was thus entitled to actual custody credit of 308 days, not the 30 6 days calculated by the trial court. Defendant was entitled to 15 percent of that number in conduct credit, which come s to 46 days, not the 45 days awarded. (See § 2933.1, subd. (a).) As this was clerical error, we modify the judgment to add three additional days of credit. (See People v. Duran (1998) 67 Cal.App.4th 267, 270.)12 DISPOSITION The judgment is modified to reflect an aw ard of 308 days of actual custody credit, plus 46 days of conduct credit, for a total of 354 days of presentenc e custody credit. As modified and in all other respects, the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment reflecting the modified presentence custody credit, and to forward a copy of the amended abstract to the Department of Corrections and Rehabilitation.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

_______ _______________ ______, J. CHAVEZ

We concur:

_____________ _____________, P. J. BOREN

___________________ _______, J.* FERNS

___________________ __________________ __________________ _________________ * Judge of the Los Angeles Superior Court, assigned by the Chie f Justice pursuant to article VI, section 6 of the California Constitution.