Filed 9/11/15 P. v. Ainsworth CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT
THE PEOPLE, Plaintiff and Respondent,

v.
MAURICE LAMONT AINSWORTH , Defendant and Appellant. H0 39571 ( Santa Cruz County Super. Ct. No. F20150 )

Appellant Mauri ce Lamont Ainsworth appeals his convictions on 3 9 counts arising
from two different incidents. In a third amended information filed in Santa Cruz County Superior Court, the district attorney charged appellant with 5 7 counts in two different cases

. 1 On appeal, appellant challenges his convictions on numerous counts as being unsupported by sufficient evidence. Further, he argues that the erroneous admission of gang evidence and other evidence of violence denied him a fair trial. Finally, he asserts that several sentencing errors require that this matter be remanded for resentencing. As we shall explain, we agree that this matter has to be returned to the su perior court for resentencing.

1 Originally, in case No. F17760, the district attorney charged appellant with nine different counts and in case No. F20150 with 51 different counts. The two cases were consolidated under case No. F20150 and in the third amended information the district at torney charged appellant with 57 different counts.2 Backgro und
The first 12 counts of the third amended information arose out of a home invasion robbery that occurred on March 27, 2009. The Santa Cruz County District A ttorney charged appellant with three counts of kidnapping for ex tortion (Pen. Code, §209,
subd. (a) ; 2 count 1 , victim Teodros Anley ; count 2 , victim Patricia Anley ; and count 3 , victim Ezana A nley); robbery (§211, count 4 ); first degree reside ntial burglary (§459,
count 5 ); two counts of unlawfully taking a vehicle (Veh. Code, §10851, subd. (a), counts
6 & 8 ); grand theft of an access car d (§484g, subd. (a), count 7 ); receiving stolen property (§496, subd. (a) , count 9 ); dissuading a witne ss by force or threat ( §136.1, subd. (c) (1),

count 10 ); witness intimidation (§137, subd. (b) , count 11 ) ; and criminal threats (§422 , count 12 ). As to counts 1 through 4 , the district attorney alleged that appellant personally
used a firearm

— a rifle

— within the meaning of sections 12022.5, subd ivision (a) and
1 2022.53, subd ivision (b) , and that appellant per sonally used an assault weapon within the meaning of section 12022.5, subdivision (b). A s to counts 1 through 9 , the district attorney alleged an on

- bail enhancement (§12022.1) and alleged that appellant had suffered a prior conviction for which he had se rved a prison term within the meaning of section 667.5, subdivision (b)

. Co unts 13 through 57 concerned appellant’s escape from custody and crimes he committed in an attempt to evade law enforcement , which occurred after appellant was transported from cou nty jail to an outside hospital on November 29, 2010. The district attorney charged appellant with battery with injury on a peace officer (§243, subd. (c)(2), count 13); assault on a peace officer (§245, subd. (c), count 14); attempted obstruction of
a pe ace officer with firearm removal (§§664/148, subd. (c), count 15); battery with injur y on a peace officer ( §243, subd. (c)(2) , count 16 ); battery with s erious bodily injury ( §243, subd. (d) , count 17 ); resisting an officer ( §69 , count 18 ); battery with injur y on a peace

2 All further statutory references are to the Penal Code unless otherwise indicated.3

officer ( §243, subd.(c)(2) , count 19 ); assault with a taser on a peace officer ( §244.5,
subd. (c) , count 20 ); resisting a peace officer causing s erious bodily injury (§148.10, count 21) ; firearm removal ( §148, subd. (c) , count 22 ); escape by force or violence ( §45 3 2 , subd. (b)(2) , count 23 ) ; false imprisonment of a hostage (§210.5, count 24, victim Chelsea McHone); attempted first degree premeditated murder (§§664/187, subd.(a)), count 25, victim Chelsea McHone); second degree commercial b urglary ( §459 , count 26 ); kidnapping for ransom ( §209, subd. (a) , count 27, victim Tiffany Chapman );
assault with a semiautomatic firearm ( 245, subd. (b) , count 28, victim Tiffany Chapman ); attempted carjacking ( §§664/ 215, subd. (a) , count 29, Tiffany Chap man’s car ); first degree robbery of a n inhabited dwelling ( §211 , count 30 ); criminal threats ( §422 , count 31); eight counts of false imprisonment of a hostage ( § 210.5 , count 32, victim Tiffany Chapman ; count 33, Monica Rocha ; count 34, victim Kristin Van Kley ; count 35,
victim Hayden ; count 36 , victim Anahi ; count 37 , victim Feyana ; count 38, victim Dean ; and count 39, victim C.J.) ; 3 first degree residential burglary person present (§459,

count 40, the Langouev home), two counts of kidnapping for robbery ( §209, subd. (b)(1) , count 41, victim Vladimir Langouev ; count 47, victim Tamara Langouev ); two counts of
kidna p ping for ransom (§209, subd. (a) , count 42 vic tim Vladimir Langouev; count 48
victim , Tamara Langouev ); two counts of assault with a semiautomati c firearm (§ 245, subd. (b) , count 43 victim Vladimir Langouev ; count 49, victim Tamara Langouev ); two

more counts of false imprisonment of a hostage (§210.5 , count 44, victim Vladimir Langouev ; count 50, victim Tamara Langouev); two counts of criminal threats (§422 , count 45, victim Vladimir Langouev ; count 46, victim Tamara Langouev ) ; first degree
residential burglary ( §459 , count 51, the Bishop home); street terrorism ( §186.22,

3 Hayden, 

### Anahi, Feyana, Dean, and C.J. are all minor victims ranging in age from four and a half months to nine month s in age. Accordingly, we refer to them by only their first names to protect their anonymity.4

subd. (a) , count 52 ); possessio n of a firearm by a felon ( former §12021, s ubd. (a) , count 53 ); carrying a loaded firearm having been previously convicted of a felony ( former § 1 2031, subd. (a)(2)(A) , count 54 ); carrying a loaded firearm defendant knew or
should have known was stolen ( former §12031. subd. (a)(2)(B) , count 55 ); car rying a
loaded firearm while being an active participant in a criminal street gang ( former §12031, subd. (a)(2)(C) , count 56 ); and carrying a loaded firearm while not the registered owner ( former § 12031, subd. (a)(2)(F) , count 57 ). As to counts 20 though 52, the district attorney alleged f

irearm enhancements (§12022, subd. (b)(1), or §12 022.5, subds. (a)/ (d), or §12022.53, subds. (b) or (c)) . C ounts 14, 20, and 23 contained a great bodily injury
enhancement (§12022.7, subd. (a))

. The district attorney al leged v arious aggravating sentencing factors, such as victim vulnerability (§1170.85, subd. (b) , counts 35

- 50 ) and binding and tying (§1170.84 , counts 40

- 50). Further, a s to counts 10 through 57, the district attorney alleged that appellant had suffered two prior convictions and had not
remained free of prison custody for five years subsequent to those convictions, within the meaning of section 667.5, subdivision (b). Before trial, the court granted a defense motion to sever the gang charges

— co unts 52 and 56; and granted a defense motion to bifurcate the bail enhancements, the prior conviction allegations, the binding/tying allegations, and the victim vulnerability allegations. Appellant waived his right to a jury trial on these allegations, in the event he was found guilt y of the substantive offenses. In the interests of justice, the prosecutor moved to dismiss 15 counts before the

ma tter was submitted to the jury

— counts 12, 13, 16, 17, 18, 19, 21, 31, 45, 46, 52, 54, 55, 56 , and 57. The cour t granted a defense motion for judgment of acquittal (§1118.1)

on count s 33, 34 and 35. Subsequently, however, the court granted the prosecutor’s motion to change counts 33, 34 , and 35 to attempted false imprisonment for protection (§§664/210.5). The cou rt denied the balance of the defense motion s for judgment of acquittal.5

On January 4, 2013, a jury found appellant guilty of 39 counts, and not guilty of counts 10 and 11 ( the criminal threat count §136.1 & the witness intimidation count §137). The jury failed to reach a verdict on count 24

— false imprisonment of Chelsea McHone (§210.5 ), on the firearm enhancements (§§12022.53, subd. (b), 12022.5, subd. (a)) attached to the kidnapping for extortion of Teodros Anley (§209, subd. (a)) , and on the premeditati on allega tion on count 25

— attempted murder of Chelsea McHone (§§664/187). The court granted the prosecutor’s motion to dismiss count 24 and the allegations on which the jury hung

. After a bench trial, on January 18, 2013, the court found the following al legations
to be true : that appellant was out on bail when he committed counts 1 through 9 ; as to counts 26, 28, 32, 33, 34, 35, 36, 37, 38, 39, 40, 43, 49 and 50 that appellant knowingly used a stolen firearm, an aggravating sentencing factor within the m eaning of
section 1170.89 [knowledge the firearm was stolen justifie s imposition of upper term on the enhancement] ; as to counts 35, 36, 37, 38, and 39 that the victims were vulnerable because of their age, an aggravating factor within the meaning of secti on 1170.85 , subdivision (b) ; 4 as to counts 43, 44, 49 and 50 that the victims were bound or tied, an aggravating sentencing factor within the meaning of section 1170.84 . T h e court also
found true two prior conviction al legations (§667.5, subd. (b)). Appellant was sentenced on April 25, 2013. The operative abstract of judgment reflects that appellant received a determinate sentence of 140 years, two months, consecutive to 42 years to life, for a total of 182 years, two months. The court imposed
six i ndeterminate consecutive sentences of seven years to life on counts 1, 2, 3, 27

— kidnapping for extortion (§209, subd. (a)) and 41 and 47

— kidnapping to commit robbery (§209, subd. (b)(1)) for a total of 42 years

. However, d uring the oral pronouncement of

4 However, the court found the vulnerability circumstance to be not true as to counts 43, 44, 49 and 50

.6

j udgment at first the court calculated appellant’s determinate sentence as 140 years , four
months ; the n the court calculated appellant’ s determinate sentence as 138 years, four months, consecutive to six life terms of seven years to life. Defense counsel c alculated appellant’s sentence as 135 years, 10 months. 5 The court ordered appellant to pay a $10,000 restitution fine (§1202.4, subd. (b)), a corresponding parole revocation fine (§1202.45), suspended unless parole is revoked; a $1,560 court security fee ; a $1,180 criminal conviction assessment fee ; and victim restitution to Tiffany Chapman in the amount of $7,071. 1 5 . Appellant received credit for 1,000 actual days in custody and no conduct credit.
Evidence Adduced at Trial
It is well established that we must set forth the facts in the light most favorable to the judgment. ( People v

. Johnson (1980) 26 Cal.3d 557, 562.) Counts 1 Through 9

—

Home Invasion Robbery of the Anley Home
i. Events Preceding the Home Invasion Robbery Teodros Anley, his wife Patricia, and their son Ezana lived in a large custom home

o ff Hidden Springs in rural Santa Cruz County. The houses on the road are isolated, and the Anley s ’ residence is not visible from the narrow road. Although the Anleys had lived there since 1989, Teodros 6 knew only one neighbor. Between September 21 and September 26, 2006, the Anley s ’ home was burglarized. Several credit cards, a .38

- caliber handgun , and one of their cars were taken. The car was discovered in Capitola with the gun inside. On Dec ember 5, 2006, again the

5 We concur with the court clerk’s calculation that is in the amended abstract of judgment. However, it does not appear to agree with the court’s oral pronouncement of judgment.

6 For ease of reading , we refer to the three members of the Anl ey family by their first names.7

Anley s ’ home was burglarize d

. The bed cover in the master bedroom and some smaller
items were taken and the room was disorganized

. Between September 16 and September 27, 2006, and between November 16 and December 7, 2006, appellant lived nearby with his mother, Brenda Long, at 19255
Hidde n Springs . Mail for residents on Hidden Springs is delivered to mailboxes in a community mailbox area located between the Anley s ’ residence and the residence where appellant lived with his mother. On December 7, 2006, sheriff’s deputies searched appellant’s bedroom at his mother’s house. In the closet, the deputies found mail addressed to two other couples who lived on Hidden Springs. Among other things, t he
mail contained credit card st atements and convenience checks. On appellant’s desk,
d eputies found a credit card bearing the name of one of the neighbors. On February 16, 2007, appellant was convicted of felony possession of this stolen property. ii The Robbery In March 2009, Teodro s and Patricia worked in San Jose. Typically, they left the
house in t he morning at around 6:45 a.m. to take Ezana to school. At the time of the robbery he was eight years old. On Friday, March 27, 2009, the family returned home around 6:50 p.m. Patric ia was driving her Acura. They opened the driveway gate with the automatic opener and went into t he garage. The entry to the house from the garage
leads to the middle floor w here the bedrooms are located.
Teodros and Ezana entered the house while Patrici a was still in the garage. They walked along the hallway into the master bedroom/library, which was at the opposite end of the house from the garage. As soon as they entered the bedroom, Teodros saw that it
had been ransacked

— everything was dumped on the floor. As they turned to walk back to the garage, Teodros saw a tall man in dark clothing wearing a mask pointing a rifle at him. The man told him to freeze. Teodros tried to grab th e man and take the gun. As the two struggled, Teodros managed to get h is finger on the trigger and pull it while the gun was pointed at the floor. Teodros continued to8

struggle with the man until he was struck in the head from behind by someone else. He fell, and the men tied him up. He blacked out in the hallway by the c loset.
Patricia , who was still in the garage, heard a banging sound in the house . A t first she did not think anything of it. Soon she saw a man in the garage ; he was about six feet tall wearing a ski mask and was carrying a rifle. Ezana was behind the man and said

“ M ommy” in a scared voice. The man told Patricia to go inside, and ordered her to bind Ezana’s hands with rope he had taken from the garage

. Patricia complied; she bound
Ezana’s hands and his feet. The man gave her a s carf and orde red her to blindfold Ezana.
The man ordered Patricia to get on the floor on her stomach. He bound her arms and feet behind her back in such a way that she could not straighten her legs or move. He blindfolded her and put clear packing tape o ver her mouth. Just before being blindfolded she caught a glimpse of Teodros’s calves extending from the hall closet.
Patricia heard a second man close to the staircase near Teodros say “I’m gonna kill this fool.” The man spoke a little Spanish , saying w ords and phrases such as “andele, que paso.” Patricia thought that h e spoke with a slight Spanish accent. Teodros heard one of the men using a mixture of Spanish and English words ; he thought the man was trying to
confuse him

. For about the next 20 minu tes, Patricia heard bottles clinking as though the men were transporting liquor bottles from the u pstairs liquor cabinet. At some point , Patricia heard Teodros say he could not breathe. Teodros had had
his hands and feet bound, and he was placed on his st omach in a dark closet ; he was not
able to stand

. The men had blindfolded him and placed duct tape over his mouth. He felt he was suffocating from the duct tape, and one of the men commented that if they did not
loosen it Teodros would die. After the men had bound Teodros, at one point they asked where his wallet was
located

. He told them it was in his pocket ; they took it. The men ordered Teodros to give them his pin numbers; they said they would rape his wife and kill his son if he did

no t give them the correct numbers

. They demanded and took the key to h is Lexus

. The9

men pulled a ring off his finger, which injured Teodros’s finger . During this time,
Teodros did not know where Patricia and Ezana were . A t some point he heard one of the men cussing at Patricia and calling her a “bitch slut. ” Patricia was lying bound in the hallway for about 40 minutes. She had tried to free her hands, but the second man asked her what she was doing. Whenever the second man spoke to her he called her “bi tch” or “whore” and groped her vaginal area while cursing at her. The first man carried her to the bathtub in her hogtied position and placed her in it face up. Patricia was very uncomfortable and began to whimper because she
believed she was about to be raped. The first man told her to stop. He told her “Mommy, just follow orders, my partner has [ a ] bad temper.” Patricia could hear the second man asking Teodros for the pin number to his ATM card; she heard the man tell Teodros that if he gave them the wrong number they would rape his wife. After they obtained the number from Teodros, they returned and asked Patricia for the pin number for her school
PTA ATM card. She told the men it was not her money, but the second man ripped her blouse, undershirt , and bra so she gave them the number

. Before the men left the house, they pulled Teodros out of the closet where he had
been for about 30 to 45 minutes. The n they flipped over a huge leather chair and put it on top of him, so he was lying face down with the chair on his back. Patricia heard nothing
downstairs for about five minutes ; then she heard a car driving up the driveway. She went to the garage and saw that the Lexus wa s gone. She stepped out of the garage and heard the men’s voices, so she returned to the bathtub. She put everything back on so it would appear she w as still bound and blindfolded. After about five minutes, Patricia went to look for Teodros. She found h im near the master bedroom, bound and with a large heavy chair on top of him

. A ski beanie had been taped in place, with the beanie covering his face and tape over his mouth, making it
difficult for Teodros to breathe. Patricia used a utility knife to fr ee him. Teodros’s face was bruised, he was breathing heavily, and he looked horrified. Patricia noticed that a10

bottle of bleach and some green cleanser, which she normally kept in the garage laundry area, were in the master bath and half bath.
Patricia c alled 911 and reported that the family had been robbed. The men had taken and destroyed their cell ular tele phones and cut the tele phone line in the master bedroom, so they had to go to the office to make the call. Patricia gave the tele phone to
Teodros s o she could search for Ezana. Initially, they told 911 that the men might have taken Ezana because they had no idea where he was. However, while still on the
tele phone with 911, Teodros told the dispatcher that Patricia had located Ezana. Teodros
testif ied that he had sometimes picked up men to help with his work on the house, and he was suspicious that one of the robbers might have been a Spanish

- speaking worker. In
the 911 call , he described one man as about 6 feet, 4 in ches and the other as about 5 feet,
11 inches. Patricia heard Ezana cry out “ M ommy, up here ” so she followed his voice to the
attic. The ladder had been removed, but she retrieved it to climb up 30 fee t to the

entrance. She found Ezana blindfolded and bound in the same hogtied manner in which
she and Teodros had been bound. Patricia freed him and they descended from the attic

. They went to the front of the house with Teodros to a wait the arrival of the police.
The men took ATM cards from Patricia and Teodros as well as financial pap ers, travel papers , and immigration documents from the garage safe. Teodros’s rifles, a
Russian SKS and a Chinese M ak

- 90 (a variation of an AK

- 47), had been removed from
the bedroom safe. The ring that the man had removed from Teodros’s finger was unique because it had his father’s name written in script in their native African language. The

men took a red jewelry bag and necklace belonging to Patricia. When the family left home that morning, the Lexus, which had been in the garage, was empty. When they returned home about four or five days after the incident, the Lexus was filled with items that had been in the house, including juice, alcohol, passports, travel bags, paper towels, and Patricia’s cell ular tele phone. A briefcase found11

in the car containe d financial records and immigration documents, and a suitcase was filled with bottles of liquor. Deputy S heriffs Dee Baldwin and Damon Gutzwiller were the first officers to arrive at the Anley residence. As they approached in separate cars through the r emote, mountainous, densely forested area along Bear Creek Road, they saw a white Jeep driving in the opposite direction toward Highway 9 at “ a n extremely high rate of speed. ” Initially, the description of the vehicle taken during the robbery was of a cha mpagne

colored 1998 Lexus, but Deputy Baldwin noticed the Jeep because of its speed. Since in
h is experience criminals frequently switch vehicles to avoid detection, Deputy Baldwin
broadcas t ed his sighting. Deputies Baldwin and Gutzwiller met near the long driveway to the Anley
residence. At the crest of a hill in the driveway, they spotted the Lexus. After determining that it was unoccupied, they went to the residence. The Anleys came out to
meet them. T hey looked scared but said they did not need medical attention. When another deputy arrived to wait with the family, Deputies Baldwin and Gutzwiller entered
the house. They saw rifle ammunition on the entryway floor and a bullet hole in the tile
near the stairwell. There was extensive disarray in every room of the ransacked house,
and the house smelled of chemical cleanser. 7 After walking through the house, they returned to the Lexus, where Deputy Gutzwiller found two rifles on the back se at under a
lar ge gray suitcase.
Officer Koda Hudson of the California Highway Patrol received the initial dispatch regarding a burglary, kidnapping , and auto theft and was on the lookout for a
Lexus. L ater , he received a report to look for a newer white Jeep Grand Cher okee with

7 An FBI special agent investigating the matter found that there was bleach in the bathroom sink, a can of Comet cleanser in the bathroom, and some clothing on the ground with what appeared to be bleach stains.12

shiny chrome rims. He spotted the vehicle and pursued it

. Officer Hudson next saw the vehicle in a parking lot of the Quality Inn in Ben Lomond. Two individuals got out of
the vehicle : one , who got out from the driver’s side , was a taller person wearing a gray sweatshirt and jeans and one, who got out from the passenger side , was a shorter person wearing a black T

- shirt and jeans

. These individuals began walking south. Officer Hudson ran the license plate and received a report that the ve hicle was stolen. 8 Deputies went to the Quality Inn to secure the vehicle. Inside they saw two large
bottle s of liquor, a paintball mask, a debit card, credit cards, and a piece of paper. Later,

a search of the vehicle revealed a slip of paper for a doct or’s appointment for Ezana ; and a pink piece of paper with the handwritten numbers “1989,” “1988 , ” and “3302.” An investigator processed the Jeep for latent finger prints, but found none even in places where they would normally be , such as the window, door handle , and steering wheel. Deputies Travis Huntsman and Jeffrey Simpson responded to Ben Lomond and

saw a b lack male wearing dark clothing standing in the middle of an intersection. The man, identified as appellant, put his hands in the air when Huntsma n sh one a spotlight on
him. Appellant was agitated. Although the weather was dry, appellant’s clothing was
soaked. Appellant had a piece of black cloth around his neck. Deputy Huntsman placed appellant in handcuffs and searched him. He seized several pieces of jewelry , including a gold chain necklace with a crucifix and a gold ring bearing some sort of symbols , as well

as a small red pouch. Deputy Huntsman sent a photograph of the ring to deputies at the Anley residence, and was informed that a victim had identified it. Appellant told D eputy Huntsman that the jewelry belonged to his grandfather and he had been at a party wh ere he was jumped by “the KKK.”

8 A Patricia Williams ha d reported the Jeep Cherokee missing on March 11, 2009. After the vehicle was stolen, Williams received a parking ticket from the City of Santa Cruz that had been issued on March 22, 2009 , on a street near appellant’s apartment.13

Chief Deputy Sheriff Terry Parker went from the Quality Inn to an intersection along Highway 9 as an area perimeter was ending. He saw a tall male wearing a black
T

- shirt , black shorts , and gloves walking south along Highway 9. He turned on his headlight s and began driving toward the person. The person then rolled over a guardrail and dropped down t o the San Lorenzo River about 20

- 30 feet below. After a few minutes he saw the person come out of the brush, and he ordered him to freeze. Detective
Steve Ryan and Deputy Steve Shiah walked down the embankment where they saw a soaking wet man wearing one glove and a black T

- shirt with one sleeve missing. They detained the man, who was later identified as Jyler Raines, and transported him first to the hospital and then to jail. After Raines was detained, Deputy Shiah searched the area by the river and fo und a black left

- hand glo ve and two $20 dollar bills. The parties stipulated that bank records showed Teodros’s ATM card was used at a bank at 8:22 p.m. on March 27, 2009 , to withdraw $600. Another attempt to withdraw money was declined as over the limit. Another card was used in an attempt to withdraw $600 but it was declined as an invalid transaction type. In each instance, a valid pin
number was entered. The bank was on Bear Creek Road, the road one must take to get to
the Anleys’ home on Hidden Spri ngs. After appellant was placed in custody, he waived his Miranda rights and was interviewed by detective Jalon Harris ; the interview was recorded

. 9 At the time of his arrest appellant was 6 feet, 6 inches tall and weighed about 310 pounds. Appellant stated that Raines’s friend, Fernando, had picked up Raines and appellant at the house of appellant’s mother to take them to a party in Ben Lomond. Fernando picked them up around 4:00 p.m. in a black four

- door Oldsmobile. Appellant did not know anyone at the party. According to appellant, p eople at the party made racist comments. A man who did not like appellant said that appellant was a “narc” and a “snitch.” The man had an

9 A recording of appellan t’s int erview was played for the jury.14

Aryan Nation tattoo and claimed that he knew appellant from San Quen tin. A white male named “Ross” started throwing bottles, and appellant ran off. He had been at the party
for an hour and a half. Appellant told D etective Harris that he ran across the street and into the woods,
where he fell into a river. He made a cell ular tele phone call to Raines . Subsequently,

t hey met by a church near the fire station. He lost his jacket when he got out of the water
and thought he must have put his tele phone in the jacket right after he called Raines. Shortly after appellant and R aines met by the church, police arrived. Appellant was “cool” with that, but Raines ran off. Appellant had about four or five crosses in his pocket and a necklace with a ring on it. He always carried the jewelry, which had belonged to his late grandfath er. Appellant did not know why the Anleys claimed that the jewelry belonged to them. Appellant told D etective Harris that the cloth around his neck was supposed to be a sweatband, but he could not afford one so he tore the sleeve
off his T

- shirt

. When q uestioned about bleach stains on his pants, he stated that he had had the pants with those stains since he was 16 years old.
In a second recorded interview with Detective Harris, a ppellant elaborated on his story

. 10 He told D etective Harris that Fernando w as Caucasian. Fernando drove to the party with appellant in the back seat. The creek into which appellant fell was not deep, but appellant got wet from falling. After they left the party and met up, appellant and Raines intended to walk to the house of the mother of some “dude.” Raines thought he saw “Ross” driving by in an old police car and so he ran off. Appellant realized it was actually the police. He thou ght everything was okay until the police detained him. The
tele phone he left behind in his jacket was a Blackberry Storm. In addition to the

10 This second interview was played for the jury.15

tele phone call to Raines, appellant also sent texts to two girls whose names he could not
recall. 11 Appellant tol d D etective Harris that when his grandfather died his grandmother
told him he could have whatever he wanted. He picked the jewelry but did not tell his
mother he had taken it ; he carried the jewelry in a little red pouch

. The ring on the
necklace was a p lain, gold woman’s ring

. Detective Mario Sulay interviewed Raines shortly after his arrest. He stated that
Raines looked defeated. Raines was hunched over and disheveled, wearing a wet, baggy
black T

- shirt with the right sleeve missing. He seemed remors eful, and immediately implicated himself and appellant in the crimes against the Anleys without any discussion
of possible charges or sentence. Detective Sulay interviewed Raines again on March 30, 2009, and Raines agreed to take investigators on a road t rip to find evidence. Raines directed them to the Quality Inn, then to a storage lot at Highway 9 and Fillmore Street, from there to the spot where Raines had been apprehended at Highway 9 and lower Glen Arbor Road, and finally to another spot along Highw ay 9. In the storage lot, investigators found a wet, dirty blue sweatshirt with a nylo n bag
inside that contained the driver’s licenses of the Anleys , two credit cards and a silver
necklace belonging to Patricia ; and a pair of wet sweatpants with bleach st ains. In a flat landing area under a bridge on Highway 9 , the investigators found a pair of Smith ski goggles, a green knit beanie with a pirate emblem , and a pair of gray Gojo gloves. By the side of the river they found a red satin jewelry purse and a trifold wallet with several pieces of identification for Patricia and Teodros as well as ATM receipts and gold earrings in a Ziploc bag. When investigators showed Teodros the paintball mask they

11 Appellant’s cellular tele phone records showed that the last call made from his tele phone on March 27, 2009 was at 11:04 a.m., and no texts were sent from the phone that day.16

found in the Jeep, he was visibly shocked , and he gasped whe n he saw the ski goggles
and beanie. Teodros identified the ski goggles as a pair that he kept in his closet. DNA found on the beanie and goggles recovered by investigators “matched” appellant’s profile. After reaching a plea agreement with the District A ttorney’s O ffice, Raines
testified for the prosecution

. Raines explained that in late 2008 or early 2009 he reconnected with appellant ; briefly he had known appellant before that time. Raines had been “ kicked out ” of his father’s home and was living with the family of a friend. He and appellant did a lot of partying, drinking , and drugs together

. They would break into cars and steal the contents. He and appellant discussed a burglary at a house at which appellant told him they would find guns. Ap pellan t told him the house had safes. Appellant told Raines it was a house in the mountains, and appellant said he was familiar with the house and the area. Eventually the plan evolved into a home invasion in which they would tie up the people and get their social security numbers and pin number s. On the evening of March 10, 2009, they left appellant’s house and were walking through the west side of Santa Cruz looking for unlocked cars from which they could
steal the contents. They came upon a Toyota Corolla that had the key to another car
inside. They took the key ; when they tested the key it unlocked another car. The car was a white Jeep parked in a drivew ay near the Toyota. They pushed the Jeep out of the driveway and drove off , but they did not find anything of value inside the Jeep. However, they decided to use the Jeep to drive to the burglary they had been planning. The plan was to cover themselves fully with clothes and use masks. They planned to commit the burglary on a Friday so that when they left the victims tied up no one would immediately notice them missing from work or school. March 27, 2009, seemed a convenient Friday to commit the crime.17

On the chosen day, Raines had a friend drop him off at appellant’s house. I n a backpack he had a paintball mask and green beanie he stole from the house where he was living. He brought a pair of gloves. He left his cell ular tele phone and wallet at
appe llant’s house to avoid having it at the crime scene . He did not want any items from
which he could be identified. Appellant had wiped all fingerprints from the Jeep before they entered, and they wore gloves after they got into the Jeep to drive to the An ley s ’
residence. It was daylight when appellant and Raines reached the house because they wanted to be sure to arrive before the family. They parked in a turnoff area ; appellant said they could walk to the house through a “brushy area.” 12 They left the br ush by a tennis court adjacent to the house. They looked into the house to see if anyone was inside ; they saw a Lexus in the garage. They did not find any unlocked doors or windows from which they could enter the house, but they pried open a small window on the first floor. Raines slid through the window and opened the ba ck door for appellant to enter. They looked around the large, thr ee

- story house to make sure no one was there. They knew that a mother, father , and young child lived there, but they did not have a plan if someone was home when they first entered the house. They kept their gloves on at all times as they walked through the house looking for weapons, safes , and anything of
value . They took off their masks. They ransacked the h ouse as they looked through it. They pried open a gun safe they found in the master bedroom closet. They loaded the guns in preparation for the f amily’s arrival. Other than the guns the only thing they found of value was a large quantity of alcoholic beverages, which they loaded into
suitcases. Appellant took some jewelry from the master bedroom. The plan was to load

12 A neighbor testified that she left her house at about 5:00 to 5:30 p.m. and noticed a white Jeep Cherokee parked in a turnout area by the remote mailboxes fo r the houses on Hidden Springs.18

whatever they wanted to take into the Lexus, leave in the Lexus, sell or otherwise get rid of it at some point, and leave the Jeep behind

. At some point they urinated in the sink while running the faucet. They cleaned the sink with bleach because they were concerned the police would obtain DNA from their
urine. They used other cleaning products to wash down the sinks. Appellant and Raines decided that when the family arrived home, appellant would
be in the kitchen and Raines would be in the closet under the stairs. They decided that because appellant’s mask was not very good, he would wear some goggles they found in
the house. They decided they would speak as if they were Hispanic to disguise their
voices. They used a Hispanic “tone” and a few common words. While they were in the presence of the Anleys, Raines used a Spanish accent, but he did not recall whether appellant did as well. They found rope and tape they could use to bind the family
members. Before the family arrived home they took out one of the wires in th e garage so the family could not open the door. Raines was by a window when the family returned home, and he called out to appellant who was in the garage. Raines hid in the closet with a gun. The plan was for appellant to make a loud noise when the vict ims entered the house so Raines could leave
the closet and surround them. Raines heard people enter the house and saw Teodros and Ezana walk by, but he did not hear any noise from appellant. Ezana was asking his father why someone would ransack their hou se. Raines left the closet and told them to “ freeze. ” He tried to move Ezana aside but in the process he dropped the gun. Teodros grabbed the gun and they tussled over it until the gun went off. At that point Teodros got scared and jumped, and Raines wa s able to throw him in the closet and strike him in the face with a
fist several times

. Ezana was on Raines’s back , pleading with him not to hit his father. 13

13 At the time of the incident, Raines was 6 feet 5 in ches tall an d weighed about 190 pounds.19

Appellant then came into view holding Patricia at gunpoint. She was “screaming, c rying, praying,” and Ezana started to cry

. Appellant ordered Patricia to tie up her son while Raines sat on Teodros holding the gun. After Patricia finished binding Ezana, appellant bound her hands and feet
behind her back. Raines told appellant to put t he child in the attic so he would be out of the way, and appellant did so. When appellant returned from the attic, he bound Teodros’s feet, and Raines put Teodros’s hands together so appellant could bind them. Raines and appellant decided to blindfold th e Anleys. They put a blue beanie on Teodros
and wound tape around it so it would not come off. They put a tan sack over Patricia’s
face.
As t hey began packing the Lexus to leave, Patricia was in their way

. Raines picked her up and moved her from the hal lway to the bathtub. They took the wallet and Lexus keys from Teodros. While Raines loaded the car, appellant demanded and obtained the personal information they needed from Patricia and Teodros. Raines
watched appellant write down a pin number and othe r information he had obtained from
Patricia. At some point , Teodros compl ained that he could not breathe so they loosened the tape around his face. Before they left, they moved Teodros from the closet to the hallway and flipped a chair on t op of him so h e could not move. They opened the garage manually because they had dismantled the automatic door
opener. Appellant got in the driver’s seat of the Lexus and started pulling the car out
while Raines walked next to it. Raines heard a noise in the garage. He saw Patricia and noticed that her blouse was torn open. He told appellant, then jumped into the driver’s seat and they drove up the driveway. When they got to the gate, they realized that Patricia would report the Lexus as stolen , so they abandoned i t. Raines grabbed two bottles of alcohol and they walked to the Jeep. He threw the bottles in the back seat. As appellant drove down the driveway, Raines removed the cash and credit/debit cards from Teodros’s wallet. He gave the cards to appellant. Rai nes saw police cars20

heading towards the house and told appellant to drive faster. Raines threw Teodros’s
wallet out the car window once he removed the c ash and cards. On the way back to Santa Cruz, they stopped at a Liberty Bank to take cash out on

one of the credit cards before they were all cancelled. When appellant pulled into a
drive

- through ATM they put their masks back on. They managed to get $600 from one card, but the other card did not work. Appellant gave Raines the cash, and Raines put it
in the pocket of his pants

. T hey removed their masks when they left the bank

. As they drove off, they noticed a police car behind them. When two other cars
turned off the road but the police car remained behind them, they pulled into a hotel parking lot. A s t he police vehicle pulled into the lot behind them they ran from the car still wearing their gloves. Raines and appellant ran down the side of a bridge and swam through a river. When they got to the other side, they went back up, jumped over a couple of residential fences , and ended up in some sort of construction area. Raines saw

some “big

- rig trucks” and storage bins. The men discarded their wet clothes. Raines threw his sweatpants and jacket in the bushes ; u nderneath he was wearing shorts and a

s hirt. Raines had left the paintball mask and backpack in the car . T he only property he
still had was the cash from the ATM. Raines and appellant planned to get back on the main road and take the bus back
to Santa Cruz . However , because the bus had just driven by , t heir plan was disrupted

. They continued to walk together but took some side streets to get off the main road. When they returned to the main road they saw several police vehicles. They crossed the street, and Raines was about to jump a fence when appellant said he was not running
anymore. Raines went over the fence. He heard appellant tell the police he had been jumped at a party, but when he saw the police arrest appellant , Raines continued running. Eventually, Raines became tired. He cam e back to the main road by a b ridge at a
three

- way stop light; h e asked a man for a ride back to Santa Cruz . However, the man
refused. Raines saw an undercover police car coming across the bridge and jumped off21

the side. He fell down about 50 feet. A p olice officer was looking over the side with a flashlight ; Raines heard the officer calling for backup. The officer pointed a gun at
Raines and told him to “ freeze ”; Raines stayed where he was

. While other officers were on the way down, Raines removed the cash from his pocket and buried it. He waited
until the officers arrived and arrested him.
Officers took Raines to an interrogation room in a building across the street;
Raines knew that the po lice had no evidence linking him to the Anley home invasion. However, Raines felt “kind of sick with [him] self” and decided to tell D etective Sulay
what had happened. He was mostly truthful, but he told the detective that the kidnapping happened accidentl y when the family arrived home rather than admit that it was part of the plan. While in jail, Raines got a tattoo of friends he referred to as the “ Four Brothers

. ”
O ne of the men depicted was Fernando Villalobos, who was 5 feet 11 inches tall with a
mediu m build. Fernando spoke some Spanish. Counts 13 Through 25 In November 2010, Santa Cruz County Sheriff’s Deputy Cathy Bramanti was assigned to transport jail inmates to medical appointments. Inmates were not informed ahead of time when they would leave the jail for a medical facility in order to keep them from planning an escape with people on the outside. Before transporting an inmate, she placed the inmate in handcuffs and ankle restraints. When an inmate required an MRI, however, Bramanti had to remove the restraints at the MRI center because a person cannot be wearing any metal when undergoing an MRI. Deputy Bramanti had first transported appellant several months earlier for an X

- ray; th e transport occurred without
incident. On November 23, 2010, Bramanti transported appellant to the MRI center and
removed his restraints , again, without incident. In approximately 500 transports she had

nev er had an inmate try to escape.22

On November 29, 2010, once again Deputy Bramanti transported appellant for an
MRI at the MRI center

. On that visit they had to wait a while after the scheduled appointment time of 1 0:1 5 a.m. She expressed her concern about having an inmate out of custody for so long, bu t facility staff told her they were just finishing an emergency MRI.
At 11:10 a.m. , she was able to escort appellant to the MRI room. She removed appellant’s chains so he could use the restroom ; when appellant came out of the restroom the deputy continued to escort him to the MRI room. While appellant went into the

scanner room, the deputy waited about 25 feet away. Deputy Bramanti was wearing her duty belt , which held her radio, handgun, an extra ammunition magazine, a taser, pepper
spray , and handcuffs. The gun held 15 rounds plus one in the chamber. After about 35 minutes, appellant left the MRI scanner accompanied by Chelsea McHone, an employee of the MRI center. Deputy Bramanti had the chains ready to apply to appellant, and she walked to ward him as he left the examination room.
The deputy directed appellant to go to the chairs so she could apply the chains ; appellant complied. Just as Deputy Bramanti bent over to begin to apply the chain to appellant’s first
ankle , s he noticed appellant looking over his shoulder . The deputy felt that something

was no t right. Suddenly, appellant elbowed the left side of her head, knocking her off her
feet. Before she could get up, appellant tackled her to the ground. As Deputy Bramanti landed, appellan t was already lying across her body reaching for her firearm. Deputy Bramanti landed on her right side where she keeps her gun. As a ppellant was going for the gun with both hands, the deputy kept her left hand on her weapon ; she thought that if appellant managed to get her gun she was going to be dead.
Chelsea McHone was the first person to respond to the commotion. She saw appellant on top of Deputy Bramanti using his legs to pin her arms and using both fi sts to punch her in the face, chest , and abdomen. She yelled at appellant , “What the fuck man? What are you doing?” Appellant stopped and said , “I wil l fucking kill all of you. ”23

Deputy Bramanti yelled for someone to call 911 because she could not reach her
radio. John Rider, an MRI technician at the MRI center was getting the MRI room ready for the next examination when he heard a scuffle and McHone’s voice. He looked over
and saw Deputy Bramanti’s legs on the floor. He saw appellant wrestling with the deputy for her gun ; to him it look ed as if the deputy “was kind of a rag doll getting tossed
around

. . . .” Appellant had one arm around Deputy Bramanti’s head and the other trying to grab her gun. Rider tried to grab the arm with which a ppellant was going for the
gun. Desperately, Rider called for Dr. Martinez’s assistance becaus e the doctor was a large man. As Dr. Martinez responded and came around the corner he saw appellant wrestling with Deputy Bramanti on his right arm and Rider on his left. Appellant was
batteri ng the deputy against the wall. The deputy was trying to prevent appellant from reaching her firearm, but appellant was putting more effort into getting the gun than he was in fighting off Rider. As Dr. Martinez approached, appellant began to disengage. Appellant stood up so quickly that Deputy Bramanti lost her grip. As appellant took off running, the deputy stayed on the ground apparently trying to recover from head trauma. After about five seconds, Deputy Bramanti’s eyes appeared able to focus, and she to ok off in pursuit of appellant. Deputy Bramanti heard appellant run out the door but she did not see him. However, when she got outside she saw appellant running across the parking lot toward
the street. She followed appellant as he ran along a fen ce line until he finally tried, unsuccessfully, to jump the fence. Deputy Bramanti felt she could not shoot appellant because they were by a residential area, so she intended to fire her taser at him when he
came off the fence. When appellant came off the fence, it appeared he was going to run back through the parking lot. Suddenly, when appellant was about 12 feet away from Deputy Bramanti, he turned and ran at her. The deputy tried to grab her taser but instead got only24

her outer jacket. Appellant bea r

- hugged her and took her to the ground. Appellant fell on top of Deputy Bramanti. She fell on her right side again to try to protect her holstered gun, but her hand was trapped between their bodies. Appellant was punching the deputy in the face, and sh e knew it was only a matter of time until he knocked her out. She tried to punch appellant in the face, but she had no leverage and the punch landed harmlessly
on his chin. Then, she attempted a palm strike to appellant’s nose. Appellant began moving his head from side to side so she kept her palm planted on his nose. Then, violently, a ppellant bit Deputy Bramanti’s right index and middle fingers. She was in excruciating pain and felt her fingers might detach, but she kept her hand in appellant’s
face. She used her left hand to cover her weapon, and yelled at appellant “you don’t have to do this.” Appellant replied , “I’m sorry” and punched her in the face again.
As Deputy Bramanti was reaching for her gun with her left hand, h er taser was exposed. Appellant tore the taser out of her belt. Bramanti tried to roll over to draw her firearm when appellant shot her in the head with her taser. She felt excruciating pain and
was immobilized for five to 10 seconds. She felt appellan t take her firearm. When she was able to see, she saw appellant running with her gun. She got up to give ch ase but realized she had no gun and her taser had been used . Accordingly, she had no weapon
wi th which to stop appellant. 14
When Deputy Bramanti r an out of the MRI center in pursuit of appellant, Rider went to the front desk where he saw that one of the employees, Miranda Michaels, was on the phone with 911. McHone saw Deputy Bramanti outside, and she ran out with
Rider ; Dr. Martinez was close behind. McHone ran out of the MRI center behind

14 As a result of the incident, Deputy Bramanti was diagnosed with post

- traumatic stress disorder, which was confirmed by an EEG. Her symptoms included sleep disturbance, chronic hypervigilance, depression, intrusive thoughts, and memory loss. In addition, she sustained a right jaw fracture so severe that her teeth were no longer properly aligned and her jaw did not close properly. She suffered soft tissue damage to her right middle and index f ingers as a result of the bite.25

Deputy Bramanti so she would be able to tell police where appellant went. She saw appellant and the deputy run across a parking lot full of cars. She stayed by the door to
watch , but at one point ste pped inside briefly to give information to Michaels who was
still on the phone with 911.
When McHone walked back outside she did not see anyone, but she heard Deputy Bramanti screaming from down in a ditch. McHone ran to help the deputy ; she

saw appellant running back from the direction of the ditch. He was running in the direction of the freeway when he appeared to spot McHone. Appellant turned and looked
at McHone over his shoulder. He lifted a gun, pointed it at her head and said “Freeze.
Don’t move .” As soon as appellant told McHone to freeze, she started to run. She did not know where to go until she saw Rider standing at the side entrance to the MRI center with the door open ; she ran toward the door. Dr. Martinez saw appellant pull the trigger of the gun he was holding and saw a pop of turbulent air. Appellant was about 12 feet from McHone and was standing still when he fired. Dr. Martinez heard a bullet pass to the left side of McHone at about shoulder level and hit the side of the building. As Rider was entering the building , he heard one shot. He closed the door behind him to keep appellant out. Rider, McHone , and Dr. Martinez ran to Dr. Martinez’s office where McHone was crying and said , “I ca n’t believe he shot at me.” Counts 26 Throug h 39
T hat same morning , Tiffany Chapman was working as a teacher in the nursery at Secret Garden Too, a day care and preschool. Another teacher, Monica Rocha, was working in the nursery that day

. The nursery is on the second story of the building. The

t eachers had five infants that day, including Chapman’s daughter Feyana. Only two of the infants, Feyana and Dean, were ambulatory. The other inf ants were nine

- month

- old Anahi, four

- and

- a

- half

- month

- old Hayden, and six

- month

- old C

. J. Chapman and Rocha were sitting on the floor playing music to calm the infants when Chapman heard thumping footsteps running up the ramp to a door that was not26

typically used for entry into the facility. Chapman saw appellant approaching wearing a yellow j umpsuit. At about the time Chapman saw appellant, Kristen V an Kley arrived to pick up her son Hayden. 15 When Van Kley arrived, Rocha was holding Hayden. The women heard a loud noise as appellant burst through the door. Loudly and strongly,

a ppellant sai d , “ D on’t move” ; the three women saw him holding a gun out at about his
chest level ; his eyes and gun swept the room

. About a second after appellant ordered everyone not to move, Van Kley ran out the door with Rocha close behind ; Rocha was still holding H ayden

. Rocha estimated it was about six seconds between appellant’s
command and the time she fled the room. Van Kley ran into the main building where the preschool was located ; she was screaming

. Rocha followed her ; she was also screaming. Van Kley was just screaming, but Rocha was able to tell another emplo yee that there was

a man with a gun and to telephone 911. Chapman remained in the nurs e ry

. Every baby was crying. As appellant swept the room with his gun Chapman put up her hands . A ppellant walk ed by the crib
enclosure. Baby Dean was by a changing table and Feyana was trying to pull herself up on her mother’s leg. Appellant stood directly in front of Chapman holding the gun down at an angle and locked eyes with her. In desperation, Chapman tol d appellant to take
whatever he wanted. A ppellant ordered her to give him her car key. At that point, appellant had scanned the room for about 30 seconds to a minute

. Chapman told appellant her keys were in her purse on a shelf and pointed to the locati on where she normally kept her purse. As appellant began rifling through a diaper bag , Chapman realized she had left her purse at home. She told appellant she forgot her purse and instead her keys were in her jacket. Chapman grabbed the jacket from a post by the crib
enclosure. When s he did not find the keys in the first pocket she checked , she felt “panicked.” Appellant stood over Chapman holding the gun and told her , “ Y ou have

15 According to Van Kley, she arrived to pick up Hayden at 11:45 a.m.27

three seconds.” She found the car key and gave it to appellant. Chapman pointed out her black Jetta, and appellant ran down the ramp toward the car. Appellant was in the nursery for approximately five minutes. He had not moved or ot herwise touched the
babies. Initially, Chapman lost sight of appellant when he reached the end of the ramp leading back to the parking area. Chapman put the babies in cribs. Then, s he wedged a chair under the doorknob and dragged a table against the door. As she put the babies in the crib she saw the driver’s side door to her car open ; appellant lean ed over the front

seat. Chapman was unable to get a signal to telephone 911 so she used the internal intercom to contact the preschool. The woman she reached told her she was on the other line with the 911 dispatc her.
Counts 40 Through 50 In November 2010, Vladimir Languev, then age 61, and his wife, Tamara, were visiting from Russia. They were staying with their son, his wife (Olga Grishina), and
their nine

- year

- old granddaughter , all of who m lived at 118 English Drive in Santa Cruz. Vladimir spoke only Russian although he understood a little English. On November 29, 2010, Vladimir and Tamara 16 were alone in the home for the
first time. They began cleaning the house at around 10:00 a.m. Vlad imir went upstairs to finish cleaning and then went to use the computer. He heard a strange noise and then
heard a voice. One voice was Tamara’s ; he thought she was talking to workers who were installing a new deck . This surprised him because previously the workers had not done anything inside the house. Vladimir went downstairs because he spoke English slightly better than Tamara. He noticed that Tamara’s voice seemed nervous and “very excitable

. ” As he descended he saw the back of a large, strong man

. The man, appellant, turned toward Vladimir with

16 Again, we refer to the Languevs by their fi rst names for ease of reading.28

a gun ; he pointed it at Vladimir

. 17 Appellant was wearing a bright orange uniform that said “Santa Cruz.” Sharply, a ppellant said “ C ome” ; then he grabbed Vladimir’s arm and
threw him on a bed. Vladimir saw that Tamara’s feet were bound with yellow fabric.
She l ooked pale and very scared. Appellant tried to bind Vladimir’s hands and feet with
towels and then tried to bind his hands with a shoelace, but the binding was not secure.
Vladimir and Tamara were seated on the bed i n the master bedroom for about 20 minutes,
but they were able to free their hands from the bindings. Tamara was worried that they would not be able to pick up their granddaughter after school. Vladimir and Tamara tried

to s peak to each other in Russian, but appellant threatened them with a gun. After
20 minutes, appellant unbound their feet, and all three left the master bedroom with appellant pointing the gun at them

. Vladimir heard sirens in the neighborhood and thought that they were connected to appellant. He understood that appe llant was holding them hostage. Appellant asked Vladimir and Tamara who they were. Vladimir showed appellant the vacuum cleaner, indicated they were house cleaners, and told appellant the
home owners were an American family he did not know. Appellant asked if they had car keys, but Vladimir told him they did not. Appellant bound their hands again with shoelaces, but not tightly. They remained on the third floor of the house for about one to

o ne and a

- half hours. When Vladimir’s cell ular tele phone rang he knew it had to be his son or daughter

- in

- law so he tried to answer it. Appellant grabbed the tele phone and
threw it on the bed. When Tamara tried to answer it, appellant grabbed the phone from
her and said “no. ”
Grishina had called the house around 12:00 noon because she had started a new job that day and her in

- laws were su pposed to pick up her daughter Sonia after school. According to Grishina, Vladimir and Tamara were acting “weird” and kept hanging up,

17 The partie s stipulated that appellant was the large man in the Languevs’ home.29

so Grishina kept calling. She heard an unknown man’s voice. F inally , she was able to speak with Tamara on their landline. Tamara told her in Russian that they were being held hostage and to hang up. Grishina called 911. The dispatche r knew something was happening and just needed her home address.
After some time Vladimir, Tamara , and appellant went downstairs to the kitchen, where appellant drank some water from the sink but refused Vladimir’s offer of juice, whiskey , and food. Appel lant looked out the window for police, but did not see any
officers. At that point a little more than two hours had passed since Vladimir first saw appellant, and he no longer heard sirens. They returned to the third floor. Appellant used
a downstairs t ele phone to make a call. Appellant was on the tele phone for about five minutes, but the only words Vladimir understood were “mother” and “Russian.” Throughout his time in the house , appellant had been pointing a gun at them and yelling loudly, but after the telephone call appellant became softer and stopped making direct
threats. Appellant made a second call where the only word Vladimir understood was “taxi.”
After the second telephone call Vladimir offered to help appellant change clothes.
Toward the end of the time on the third floor, appellant discussed changing his clothing ; he removed his shirt and pants. They went down to a closet on the second floor to find clothes but everything was too small. Tamara found a large T

- shirt on the first floor, a nd they found some pants and shoes by the garage entrance. The shoes were small ; however, appellant accepted them. Vladimir offered to go out to the street as a lookout ; to his surprise appellant agreed. Vladimir put on his shoes and walked slowly to the street without closing the
door behind him. As he walked cl oser to the street to look , he looked right and saw that the street was blocked by police vehicles. To the left he saw two officers behind his
son’s car. One officer aimed a gun at him, another officer screamed “come.”
Vladimir started walking slowly because he did not know what appellant might do to his30

wife, but the officer shouted “quickly. ” Vladimir was concerned b ecause he could not
see Tamara. When Vladimir reached the police they asked him who he was. He told them he was Russian and wanted to go back into the house because Tamara was there. The police stopped him. He saw that his son’s dog was outside, and Tamara ran out calling the dog’s name. Tamara ran to where Vladimir was standi ng with the police. About
15 minutes later, Grishina arrived followed a while later by Vladimir’s son. Grishina saw that Tamara was crying and that Vladimir was pale ; both had shaking hands. Tamara did
not feel well so someone called an ambulance. 18
Coun t 51 19 Joseph Bishop lived at 120 English Drive. On November 29, 2010, h e returned
home at about 12:00 noon and ate his lunch. As he approached English Drive he saw several police cars speed by. From his back deck he noticed more police activity. He

was home for about 30 minutes. When he left to return to work, he was about to turn left
from his street when he saw some police cars and an officer standing there. He stopped to run a couple of errands . W hen he was back in his car he received a call from a law enforcement friend who told him there was a manhunt for an escaped inmate from Dominican Hospital. The friend told him it was in the area of his house and suggested that Bishop return home. When Bi shop returned he gave his house key to an officer who

18 Tamara suffers from high blood pressure and Vladimir from arrhythmia, which was exacerbated by the trauma of being tied up and held hostage at gunpoint.

19 Counts 52 through 57 were no t concerned with any particular factual scenario but included the following charges: street terrorism (§ 186.22, subd. (a)), possession of a firearm by a felon (former § 12021, subd. (a)(1)), carrying a loaded firearm having been previously convicted of a felony (former § 12031, subd. (a)(2)(A)), carrying a loaded firearm knowing that the firearm was stolen (former § 12031, subd. (a)(2)(B)), carrying a loaded firearm while an active participant in a criminal street gang (former § 12031, subd. (a)(2)(C)), a nd carrying a loaded firearm while not the registered owner (former § 12031, subd. (a)(2)(F).31

told Bishop the police were doing a house

- to

- house search. Bishop waited in the area for two to three hours talking with his neighbor, Olga Grishina, who was standing with her
in

- laws.
Lieutenant Danie l Flippo led a law enforcement team assigned to clear houses on English Drive in the search for appellant. The house at 120 English Drive was the last
house to be checked. The purpose in entering that house, as well as the other houses, was
to make sure no residents were in harm’s way. Lieutenant Flippo believed that appellant was in the house at 118 English Drive, and the house next door, 120 English Drive , would provide a place from which they could observe it. One of the officers broke the
door to th e garage of 120 English Drive , and the team entere d the house through the
garage. Eight officers, including O fficer Carter Jones and S ergeant Arnold Vasquez, were part of the arrest response team . They entered 120 English Drive along with a canine
officer

. They heard a loud thump when they made their initial entry. The officers entered from the garage into the kitchen and cleared the first floor in about a minute. The
officers went to the bottom of the stairwell ; the canine officer went up first. The d og began barking and scratching at something that sounded as if it was a door, which the
officers understood t o be the dog alerting them that someone was present. The canine ’s handler brought the dog back down, and an officer called for the person upstairs to come out with his hands up. Appellant came out fairly quickly. Lieutenant Flippo ordered him to put his hands i n the air, to turn around, get on his knees , and slide dow n the stairs with his hands up ; a ppellant complied. One of the officers handcuffed appellant. Appellant was disoriented and his speech was slurred. When asked where the gun was , he indicated it might be in the bedroom. Appellant’s pupils were dilated, his pulse was low, he was pale, and he had beads of sweat on his forehead. Officers searching the upstairs found it in disarray

. The attic crawlspace door was open and the sheetrock in the bathroom ceiling had been ripped out. Several prescription32

pill b ottles had been emptied. Bishop noted that a full bottle of a sleep aid had been emptied. Appellant’s appearance and physical condition at the time of his arrest were consistent with having ingested the pills. After the escape, appellant was subject ed to a custodial strip search at the jail. During the search, the officers found a kite 20 in appellant’s anus. The kite talked about bank accounts, online banking, obtaining a lawyer , and getting a job. Correctional
O fficer Barnes stated it appeared to him to be “information that somebody would need if they were trying to get somewhere.” Defense Case
The defense recalled D eputy Gutzwiller as its sole witness. Deputy Gutzwiller
testified that he interviewed Teodros at his residence about 20 to 30 minutes after the deputy arrived. At that time, Teodros described one suspect as African A merican and standing between 6 feet 2 inches and 6 feet 4 inches with an average build. Teodros described the second suspect as Hispanic and standing about 5 feet 10 inches with an average build ; he based his assessment of the person’s race on the person’s Spanish accent and stated that the suspect was wearing a mask. Teodros told him that he had not seen the second suspect prior to being pushed ; he was already on the groun d before he got a glimpse of him, and the second suspect was on the ground with Teodros. Teodros
never told D eputy Gutzwiller that he had been blindfolded and did not indicate that he
had ever se en the second suspect standing. Appellant’s trial counsel argued that Raines had lied about appellant’s involvement in the burglary of the Anley s ’ home. He argued that Raines’s friend, Fernando Villalobos, matched the description Teodros gave th e police of the second suspect.

20 Correctional Officer Alonzo Barnes explained that a kite is “a small note wrapped up and packaged in some small way

. . . .”33 Discussion Since appellant challeng es the sufficiency of the evidence to support several o f the
counts of which he was convicted , we set forth the law relevant to his challenges. When determining whether the evidence is sufficient to sustain a conviction, this court’s “role on appeal is a limited one.” ( People v

. Ochoa (1993) 6 Cal.4th 1199, 1206.)

“ ‘The proper test for determining a claim of insufficiency of evidence in a criminal case is whether, on the entire record, a rational trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] On appeal, we must view the eviden ce in the light most favorable to the People and must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.] [¶] ‘ Although we must ensure the evidence is reasonable, credible, and of solid value, nonetheless it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends. [Citation.] Thus, if the verdict is supported by subs tantial evidence, we must
accord due deference to the trier of fact and not substit ute our evaluation of a witness’ s credibility for that of the fact finder. [Citations.] ’ [Citation.] ’ ” ( Ibid

. )
The federal standard of review is to the same effect. Un der principles of federal due process, review for sufficiency of evidence entails not the determination whether the reviewing court itself believes the evidence at trial establishes guilt beyond a reasonable doubt, but, instead, “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” ( Jackson v

. Virginia (1979) 443 U.S. 307, 319 .)

“ Moreover, unless the testimony is physi cally impossible or inherently improbable, testimony of a single witness is sufficient to support a conviction. [Citation.]” ( People v

. Young (2005) 34 Cal.4th 1149, 1181 .)
As a reviewing court we must “draw all reasonable inferences in support of the ju dgment.” ( People v

. Wader (1993) 5 Cal.4th 610, 640.) Reversal is not warranted34

“unless it appears ‘that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].’ [Citation.] ” ( People v

. Bolin (1998) 18 Cal.4th 297, 331.) Sufficiency of the Evidence

— Count 3 Background The district attorney charged appellant in counts 1 through 3 with kidnapping for
extortion (§ 209, subd. (a)) of each of the three members of the Anley family

— Teodros,
Patricia and Ezana. The cou rt instructed the jury that as to counts 1 , 2 and 3 , the People had to prove that, “one, the defendant seized or confined another person; two, the defendant held or detained the other person; three, the defendant did so to commit extortion or to get money or something valuable and, four, the other person d id not consent to being seized or confined.” Further, the court instructed the jury that “Someone intends to commit extortion if he intends to, one, obtain a person’s property with a person’s consent and, two, obtains the person’s consent through the use of force or fear.” The verdict forms for all three counts reflect that the jury found appellant guilty of kidnapping for extortion; and it does not appear that as to those three counts the jur y had an option of finding him guilty of kidnapping to ge t mone y or something valuable. Section 209, subdivision (a) provides : “Any person who seizes, confines, inveigles, entices, decoys, abducts, conceals, kidnaps or carries away another person by any means whatsoever with intent to hold or detain, or who holds or detains, that person for ransom, reward or to commit extortion or to exact from another person any money or valuable thing, or any person who aids or abets any such act, is guilty of a felony, and upon conviction thereof, shall be punished by imprisonment in the state prison for life without possibility of parole in cases in which any person subjected to any such act suffers death or bodily harm, or is intentionally confined in a manner which exposes that person to a substantial likelihood of death, or sha ll be punished by imprisonment in the35

state prison for life with the possibility of parole in cases where no such person suffers death or bodily harm.” As “the statute [§ 209, subdivision (a)] is phrased in the disjunctive, it describes four different ty pes of aggravated kidnapping: (1) for ransom; (2) for reward; (3) to commit extortion; and (4) to exact from another person any money or valuable thing.” ( People v

. Ibrahim (1993) 19 Cal.App.4th 1692, 1696.) “ Extortion is the obtaining of property from another, with his [or her] consent

. . . induced by a wrongful use of force or
fear

. . . . 21 (§ 518 , see § 7 [masculine gender includes feminine]. ) “Fear, such as will constitute extortion, may be induced by a threat

. . . . [¶] 1. To do an unlawful injury to the person or property of the individual threatened or of a third person

. . . .” (§ 519) Appellant argues that as to count 3

— the ki dnapping for extortion of Ezana

— the
evidence was insufficient as there was no evidence of extortion. Appellant asserts that

t here is no evidence that appellant obtained any property from Ezana. The evidence established that appellant and/or Raines had Patricia bind Ezana’ s hands and feet and
blindfold him. Appellant then put Ezana in the playroom in the attic, to get him out of the way. Ezana remained unharmed in the attic until the robbers left the house, when
Patricia found him.
Th e fact that appellant did not obtain any property from Ezana is irrelevant. Kidnapping for extortion can i nvolve a primary victim (who is seized, confined, or otherwise subjected to a predicate act

— in this case Ezana) and a secondary victim (who

21 The people assert that while th e statute addresses four different types of aggravated kidnapping, the jury was instructed on only the third type

— kidnapping for extortion. Although the written jury instruction was entitled “Kidnapping For Extortion (Pen. Code, § 209(a))” the wording of the instruction included the fourth type of kidnapping

—

kidnapping to exact from another person any money or valuable thing. However, since as we have explained, the jury was only given the option of finding kidnapping for extortion, we must assume that t he jury ignored the “or to get money or something valuable” language. (See People v

. McKinnon (2011) 52 Cal.4th 610, 670 [reviewing court presumes jurors are intelligent and possess common sense].)36

is subjected to an extortion demand

— in this case Teodros , who was threatened that if he did not give appellant and Raines the correct pin numbers they would kill Ezana ). ( People v

. Martinez (1984) 150 Cal.App.3d 579, 591 , ( Martinez ), disapproved on another ground in People v

. Hayes (1990 ) 52 Cal.3d 577, 628, fn. 10 .) This is quintessentially kidnapping for extortion. Of co urse, the same person may be both the primary and the secondary victim. ( People v

. Ibrahim , supra , 19 Cal.App.4th at pp. 1696

- 1698.) Alternatively, r elying on Martinez , supra , 150 Cal.App.3d 579, appellant argues
that no kidnapping of Ezana occurred

. 22

In Martinez , the court reviewed the history of section 209, subdivision (a) dating
back to before 1933. The court noted that the statute was amended in 1951 to require that the asportation required for kidnappi ng for robbery must be more than the movement of the victim that would be incidental to most robberies, but the Legislature did not create such a requirement for kidnapping for extortion

— which still required no act beyond
seizure or confinement

. ( Martinez , supra , 150 Cal.App.3d at p. 588.) In Peopl e v
. Daniels (1969) 71 Cal.2d 1119 ( Daniels ) , our Supreme Court had stated: “[W]e hold that the intent of the Legislature in amending Penal Code Section 209 in 1951 was to exclude
from its reach

. . . those [robberies] in which the movements of the victim 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.” ( Id . at
p. 1139.)

22 In Martinez , supra , 150 Cal.App. 3d 579, the defendants challenged their convictions of kidnapping for ransom or extortion. ( Id

. at p. 587.) They argued that section 209 could not have been intended to reach conduct that is, essentially, a multivictim robbery. In support of their contention, the defendants traced the history of section 209 and pointed to various anomalies that would result from interpreting subdivision (a) to apply to the facts of the case. The Martinez court agreed with their arguments and found that no kidnapping of the victim had occurre d. ( Matinez , supra , at pp. 587

- 588.)37

R elying on Daniels , the court in Martinez held that the holding in th e Daniel ’ s case “would be circumvented if either subdivision of section 209 is construed to reach
those multivictim robberies in which the movement or restraint of the purported kidnap
vic tim is merely incidental to the commission of the robbery and does not substantially increase the risk of harm over and above that necessarily present in the crime of the robbery itself.” ( Martinez , supra, 150 Cal.App. 3d at p. 595 .) The Martinez court

ac knowledged that while t he crime in the case before the court “mi ght technically fall within [the kidnapping for extortion] category, we do not think that the purported kidnap victim was subjected to any greater confinement or risk of harm than is incident to a

‘ normal ’ multivictim robbery.” ( Id . at p. 591.) The court emphasized that it s holding

was limited “ to what is necessary to prevent the Daniels line of cases from being circumvented by charg ing what is essentially a multi victim robbery as a kidnapping for
ransom.” ( Id . at p. 595.)
In Martinez , the defendants entered the victims’ house. While one defendant immediately took control of the husband, the other went to the bedroom and told the wife
that if she screamed the fir st defendant would hit or shoot her husband. The second defendant then took several items from the dresser and forced the woman to engage in
three acts of sexual intercourse. During the time that the second defendant was in the bedroom with the wife, the first defendant had used strips of the husband ’ s robe to bind
him. ( Martinez , supra , 150 Cal.App.3d at p. 586.) Among several other crimes, the defendants were charged and convicted of kidnapping the husband for ransom and extortion under section 209, subdivision (a). The Martinez court found that under these facts, no kidnapping of the husband occurred. ( Martinez , supra , 150 Cal.App.3d at
pp. 587

- 588.) Following the reasoning of Daniels , the Martinez court found that the restraint of the husband was incident to the robbery and did not “substantially increase the risk of harm beyond that inherent in the robbery it self.” ( Id

. at p. 593.)38

In contrast to Martinez , in this case, Ezana, an eight

- year

- old boy, was removed from his parents and placed in the attic. All of the victims had been bound and
blindfolded and none knew where the others were located

. While Raines testified that he told appellant to put Ezana in the atti c to get him out of the way , both defendants knew it was a large house, and they did not have to place the bound child in the attic if their sole
concern was that he not hamper their mo vement in taking the Anley s ’ property to the
garage. When appellant wanted to obtain the credit and debit card pin numbers from Teodros, his threat to kill Ezana was intensified by the fact that Teodros had no idea
where his son was located or even if he was still alive

. Th us, the decision to bind Ezana and move him into the attic was not merely a restraint incident to the robbery. More importantly, the risk to Ezana by moving him into an attic far from his parents significantly increased the risk of harm, particularly psychological harm, to the young isolated child. The attic hatch was closed and the ladder removed, which decreased the chances the boy would be found right away. As our Supreme Court noted in People v

. Laursen (1972) 8 Cal .3d 192 , “the primary purpose of the statute [section 209, subdivision (a)] is to impose harsher criminal sanction to deter the carrying away of persons during the commission of a robbery in a manner [that] substantially increases the risk that someone wil l suffer grave bodily or psychic injury or even death.” ( Id. at p. 198.) The evidence shows that removing Ezana from the area in which his parents had been bound during the home invasion and placing the child alone in the attic was not merely the movement incident to the robbery of his parents and it substantially increased
the risk of harm to a then eight

- year

- old child

. As such it supports appellant’s conviction for kidnapping for extortion under section 209, subdivision (a). In sum, we find substantial evidence on count 3 , the kidnapping for extortion of
Ezana.39

Sufficiency of the Evidence

— Counts 27 , 42 and 48 When the court instructed the jury on counts 1 through 3 , the court applied the same instructions to counts 27, 42 and 48. The verdict forms for count 27 ( pre

- school
teacher Tiffany Chapman ), count 42 ( Vladimir Languev) and 48 ( Tamara Languev ) indicate that the jury found appellant guilty of kidnapping for extortion ; and again there is no indication that the jury had an option of finding him guilty of kidnapping to get money or something valuable

. 23 Appellant asserts that the evidence here is insufficient to establish that he had the specific intent t o obtain, or did obtain , Chapman’ s consent to relinquish her car keys, or
the Languevs’ consent to relinquish the clothing appellant took from their son ’ s closet, as required for extortion. Therefore, he argues, counts 27, 42 and 48 must be reversed

. Initially, we acknowledge that the crimes of robbery and extortion are similar and sometimes difficult to distinguish. ( People v. Torres (1995) 33 Cal.App. 4th 37, 50 ( Torres )

. ) “ Both crimes have their roots in the common law crime of larceny. Both crimes share the element of an acquisition by means of force or fear. One distinction between robbery and extortion frequently noted by courts and commentators is that in robbery property is taken from another by force or fear ‘against his will’ wh ile in extortion property is taken from another by force or fear ‘with his consent.’ ” ( I bi d .) “Extortion does, however, require the specific intent of inducing the victim to consent to part with his or her property.” ( Ibid .) Appellant asserts that t he evidence established that he took Chapman’s car keys and the Languevs’ clothing at gunpoint, which is more consistent with robbery or a forcible taking, but not extortion.

23 While the third amended information was written to include multiple ways of violati ng section 209, subdivision (a) , in closing argument the prosecutor argued that appellant kidnapped Chapman and the Languevs for extortion , and, as noted, the jury was instructed only on kidnapping for extortion in re gard to counts 27, 42 and 48.40

Appellant argues that the facts in this case are similar to the facts in Torres , supra , 33 Cal.App.4th 37 , in which the C ourt of A ppeal found insufficient evidence of extortion.
In Torres , t he undisputed evidence showed the defendant was a collector of

“ ‘rent’ ” for a street gang ; his territory included the area where the victims Argueta and
Gonzales lived. One afternoon the defendant approached Argueta as he was getting into a car with some friends and asked him for money. Argueta responded he had no money
and told defendant to come back later

. The de fendant did not attempt to prevent Argueta from leaving. ( Torres , supra , 33 Cal.App.4th at p p

. 50

- 51.)
Later that same day, defendant approached a group of men standing on a street

corner. The d efendant told the men he was collecting money for the gang ; a ngry words were exchanged. The d efendant forced the men up against a wall and began hitting one of the men with a gun. The d efendant demanded $40 from each man , then increased his demand to $200. He told the men he wanted the money that night. The men told the defendant they ha d no money. The d efendant told the men he did not believe they had no money because he knew they were selling marijuana. While this confr ontation was taking place, Gonzales walked by on the way to move his car. The defendant pointed his gun at Gonzales and ordered him up against the wall with the other men. The defendant asked Gonzales for money and he replied that he had no money. The d efend ant ran his hands over Gonzales’ s pockets but d id not put them inside Gonzales’ s po ckets. The
defendant told Gonzales to stay against the wall. ( Torres , supra , 33 Cal.App.4th at
p. 51.) At this point, Argueta approached the street corner where defendant, Gonzales , and the other men were standing. Defendant stopped Argueta and asked fo r money. Argueta denied having any money and told defendant to come back. D efendant, who was still holding a gun, began pushing Argueta. Defendant told Argueta he wanted the money
“now

. ” D efendant grabbed Argueta by the hair, put his gun to Argueta’ s h ead and told Argueta to give him the money or he would “ ‘ put [his] brains out. ’ ” ( Torres , supra , 3341

Cal.App.4th at p. 51 .) Argueta replied, “ ‘ Go ahead if you want. ’ ” D efendant grabbed Argueta by the hair and placed a gun to his head , wh ereupon defendant shot Argu eta in the head at point

- blank range and fled. ( Ibid .)
The Torres court found that the evidence described above satisfie d all the elements of an attempted robbery of Argueta and Gonzales. The court stated that it had no doubt
the defen dant intended to permanently deprive Argueta and Gonzales of their property as demonstrated by Argueta’ s statement that he would give the defendant money later and the defendant’s statement to give him the money “now” or he would “ ‘ put [his] brains

out

. ’ ” ( Torres , supra , 33 Cal.App.4th at p. 51.) The court noted that t o emphasize his point defend ant had grabbed Argueta by the hair and placed a gun to his head. The
Torres court found that t his evidence establishe d the defendant’ s intent to take Arguet a’ s money by force or fear against his will. However, a t the same time, the court found that this evidence negate d the sp ecific intent to obtain Argueta’ s money through consent, a necessary element of extortion. ( Id. at pp. 51

- 52.) 24 As to Gonzales, the Torres court noted that the defendant’s i ntent to take property from Gonzales’s person was demonstrated by the fact the defendant stopped Gonzales at gunpoint and indicated he wanted money from Gonzales. When Gonzales stated he had

no money defendant patt ed Gonzales’ s pockets while continuing to train his gun on

24 We note that the issue in Torres was not whether the evidence was sufficient to support a conviction for attempte d extortion. Rather, in that case a police officer testified to his opinion that the crimes committed by the defendant met the definitions of both robbery and extortion. He opined that the defendant had committed attempted robbery, and thus implicitly op ined that the defendant’s killing of the second victim was first degree felony murder. The issue on appeal was whether the failure to object to this testimony constituted ineffective assistance of counsel, and if so whether it was prejudicial. ( Torres , s upra , 33 Cal.App.4th at pp. 47

- 48.) The court found that counsel should have objected to the testimony, but because the evidence proved every element of attempted robbery the error was not prejudicial. ( Id. at pp. 49.) The defendant argued on appeal tha t the evidence showed only attempted extortion, not attempted robbery. ( Id. at p. 42.)42

Gonzales, thereby demonstra ting an intent to take Gonzales’ s money through force against his will rather than with his consent induced by fear. ( Torres , supra , 33 Cal.App.4th at p. 52.) We have no doubt that when appellant forced his way into Secret Garden Too, swept the room with his gun pointing it at the teachers, a parent , and five infants, told
everyone not to move , approached Chapman, locked eyes, and after Chapman said he
could tak e anything he wanted, demanded her car key and threatened her that she had only three seconds to find it and left with it , he was guilty of robbery. Nevertheless, in addition, he was guilty of kidnapping for extortion before the point where he demanded
he r car key

. When appellant forced his way into the nursery he appeared to Chapman to be “really panicky” and “full of rage.” Implicitly, appellant threatened everyone in the room by sweeping it with his gun and ordering everyone not to move. Chapman rem ained in the same spot and raised her hands as she watched appellant walk by the crib enclosure. She saw one baby crawling by the changing table while her infant daughter grabbed her leg. A ll the babies were screaming. It was at that point that Chapman told appellant to take whatever he wanted. Appellant told Chapman he wanted her car key. He became upset when she could not locate it quickly. Appellant gave her three seconds to comply. Ultimately, Chapman located her key and gave it to appellant.
Th us , at first, appellant did not demand property through the use of force or fear. Rather, first , he seized and detained Chapman by sweeping the room with his gun and ordering Chapman and the others not to move . Implicit in the sweeping of the room with a gun was appellant’s threat of future harm. By seizing and detaining Chapman , all the while holding his gun, appellant obtained Chapman’s consent to take whatever he
wanted

— i.e. , with her consent through the u se of force or fear

. Thus, b y his actions, appellant succeeded in “the obtaining of property from another, with

. . . consent

. . . induced by a wrongful use of force or fear

. . . .” (§ 518.) It was only after that point that43

appellant made a specific demand for Chapman’s car keys and threatened her by saying
that she had three seconds to find it

. Thus, the re was substantial evidence to support the jury’s finding on count 27

— that appellant kidnapped Chapman for the purpose of extortion

. As to the Languevs, the court instructed the jury on both kidnapping for robbery and kidnapping for extortion. The jury convicted appellant of both offenses. Appellant argues that as to the kidnapping for extortion there were no threats of future harm

. A fter having just tried to use Chapman’s car as a getaway vehicle , appellant entered the house on English Drive

. Vladimir was upstairs using the computer in his son’s home when he heard noises downstairs. As he walked downstairs he heard
Tamara’s nervous voice ; it sounded as if she was begging

. He saw appellant pointing a gun at him. Appellant had already bound Tamara’s feet. He grabbed Vladimir’s arm, threw him to the bed, and attempted to bind his hands and feet. Vladimir and Tamara
remained in the b edroom for about 20 minutes . W hen appellant returned, he unbound their feet and directed them out at gunpoint. Appellant demanded their car keys, but Vladimir told him they were just cleaning the house of an American family and did not have car keys. After holding Vladimir and Tamara hostage for about 90 minutes, appellant began talking about changing his clothes and removed his shirt and pants. Together the three of them went through the house looking for clothes large enough to fit appellant. Vladi mir handed some clothes to appellant to try to find something that fit. Eventually , they found a large T

- shirt, some pants , and a pair of shoes appellant could

wear. Throughout the time that appellant held the Languev s hostage he moved them
around the ho use at gunpoint , yelling loudly at them but without making specific
demands. Toward the end of the ordeal, appellant made a tele phone call, after which he appeared to calm down. The ordeal ended when appellant allowed Vladimir to go out to
the street to serve as a lookout, and Vladimir made his way to t he waiting police officers.44

In this instance, first, appellant demanded property through the use of force or
fear

— the car keys . Then , t he evidence shows that appellant extorted clothing from the Languevs. After tying up the Languevs and being in the house for approximately
20 minutes, appellant demanded that his hostages give him car keys. However, Vladimir was able to offer a plausible explanation as to why they did not have them. After that, appellant continued yelling at them and moved them around the house at gunpoint until appellant calmed down and decided he should change his clothes. The Languevs offered
to assist him , not in response to any direct threat, but rather because for more than
90 minu tes they had been bound, yelled at , and led around at gunpoint. Once again, appellant obtained “property from another, with

. . . consent

. . . induced by a wrongful
use of force or fear

. . . .” (§ 518.) Thus, again we find substantial evidence to supp ort the jury’s findings on

counts 42 and 48

—

kidnapping for extortion of Vladimir and Tamara respectively. Sufficiency of the Evidence

— Counts 41 and 47 On count 41, the jury convicted a ppellant of kidnapping Vladimir Languev to commit robbery (§209, subd. (b ) (1) ) and in count 47 of kidnapping Tamara Languev to commit robbery (§209, subd. (b) (1) ). Appellant argues that the evidence is insufficient to establish the asportation element of kidnapping, because the movement of the Languevs
around their house was merely incidental to the robbery and did not increase the risk of harm to them. Further, he argues the evid ence is insufficient that he intended to commit a robbery when the kidnapping commenced. For these reasons, he asserts that counts 41
and 47 must be reversed.
Section 209, subdivision (b)(1) provides, “Any person who kidnaps or carries away any individual to commit robbery

. . . shall be punished by imprisonment in the state prison for life with the possibility of parole.” Subdivision (b)(1) appli es only “if the
movement of the victim is beyond that merely incidental to the commission of, and increases the risk of harm to the victim over and above that necessarily present in, the45

intended underlying offense.” (§ 209, subd. (b)(2).) Appellant cont ends that there was insufficient evidence of asportation and insufficient evidence he i ntended to rob the Languevs. Asportation
In Daniels , as noted ante , the c ourt held that the offenses excluded from the aggravated kidnapping statute (§ 209) are “those in which the movements of the victim 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.” ( Daniels , supra , 71 Cal.2d at p. 1139.) Thus, t he Daniels court sets forth a two

- prong
test. As explained in subsequent cases , “ [w] ith regard to the first prong, the jury considers the ‘scope and nature’ of the movement, which includes the actual distance a
victim is moved. [Citations.] There is, however, no minimum distance a defendant must move a victim to satisfy the first prong.” ( People v

. Vines (2011) 51 Cal.4th 830, 870 ( Vines ) .) In addition, we consider the “context of the environment in which the movement occurred.” ( People v

. Rayford (1994) 9 Cal.4th 1, 12.) “This standard suggests a multifaceted, qualitative evaluation rather than a simple quantitative
assessment.” ( People v

. Dominguez (2006) 39 Cal.4th 1141, 1152.)

“ ‘ “The second prong of the Daniels test refers to whether the movement subjects the victim to a substantial increase in risk of harm above and beyond that inherent in [the underlying crime]. [Citations.] This includes consideration of such factors as the
decreased likelihood of detection , t he danger inherent in a victim’ s foreseeable attem pts to escape, and the attacker’ s enhanced opportunity to commit additional crimes. [Citations.] The fact that these dangers do not in fact materialize does not, of course,
mean that the risk of harm w as not increased.” ’ [Citations.]” ( Vines , supra , 51 Cal.4th at p. 87 0 .) “In the vast majority of cases, the increased risk of harm to the victim is a risk46

of physical harm. However, this requirement can also be satisfied by a risk of mental,
emotional , or psychological harm.” ( People v

. Power (2008) 159 Cal.App.4th 126 , 138 .) The two prongs “are not mutually exclusive but are interrelated.” ( Vines , supra , 51 Cal.4th at p. 870 .) Thus, w hether a victim’s forced movement was merely incidental
to the robbery “is necessarily connected to whether it substantially increased the risk to the victim.” ( People v

. Dominguez , supra , 39 Cal.4th at p. 1152.) “[E]ach case must be considered in the context of the totality of its circumstances.” ( Ibid .) “[A] mov ement unnecessary to a robbery is not incidental to it

. . . .” ( People v

. James (2007) 148 Cal.App.4th 446, 455, fn. 6.) “As a general rule, ‘when in the course of a robbery a defendant does no more than move his victim around inside the premises in which he finds him

. . . his conduct generally will not be deemed to constitute [aggravated kidnapping].’ [Citation.]” ( People v

. James , supra , 148 Cal.App.4th at pp. 455

- 456.)
T his case is similar to People v

. Leavel (2012) 203 Cal.App.4th 823 ( Leavel )

. In
Leavel , the 67

- year

- old female victim heard noises and came downstairs to find the defendant, unclothed, in her kitchen. The victim froze and then backed away. The defendant slapped his hand over her mouth and knocked her to the ground. He told the victim he would not hurt her if she cooperated with him. The defendant told the victim about his “ ‘sad life,’ ” and she gave him $70 from her purse. The n the defendant looked in the purse and took her cell ular tele phone and cigarettes. The defendant told the victim they were going to smoke together and walked her to her bedroom. While in the bedroom, the defendant found a pistol in the night table, which he took. Next, h e told the victim he was hungry and forced her back to the kitchen. S he gave him ham. The defendant said it was too salty and ordered the victim to go to the bathroom to flush it
down the toilet. After that he ordered the victim to go to her office where he took a digital camera, a pen , and a towel. The defendant forced the victim to go outside where he retrieved his clothes, then forced her back into the living room where he got dressed.47

The defendant made a tele phone call, then left the house about 50 minutes after the
victim discovered him. ( Id

. a t pp. 826

- 827.)
On a ppeal, the Leavel court rejected the defendant’s challenge to the sufficiency of the evidence in support of his conviction of kidnapping for robbery. Just as in this

case, the defendant asserted that the movement of the victim around her own home was insufficient to prove the asportation element. ( Leavel , supra , 203 Cal.App.4th at p. 834.) The court found “the evidence supports a finding that Leavel’s forcible movement of [the victim] from the kitchen to her bedroom was unnecessary to facilitate a robbery.” ( Id . at p. 835.) The court went on to say that “even if Leavel’s forcible move of [the victim] to the bedroom was in furtherance of the robbery, the jury could find his forcible mo ve of her from the bedroom to the kitchen and other locations was not.” ( Ibid. ) Finally, the
court found “s ubstantial evidence also supports a finding that the forcible movements increased the risk of harm to [the victim]. She was 69 years old when the ordeal occurred, and Leavel moved her around by grabbing her neck and arm. Most of the movements occurred when he was carrying her loaded gun . [T he victim] had
di sconnected the phones on Leavel’ s order and she was cooperative with him. He could have secured her in one spot in the home and left her alone while he searched the house and escaped with the loot. Leavel wa s six feet tall and he weighed about 250 pounds. He had no cause to manhandle [the victim] to achieve his robbery object ive. ” ( Id. at p. 836.) Similarly, in this case, appellant, a very large man, entered the home on English
Drive where he found Tamara and Vladimir, both in their 60’ s and obviously

non

- English

- speaking. Appellant was armed with a gun, which he pointed at Vladimir as
soon as he saw him. Appellant grabbed Vladimir’s arm and threw him onto the bed. He bound both victims with cloth, towels , and shoelaces. After about 20 minutes, appellant
led them from the bedroom where he had left them. Vladimir thwarted appellant’s initial request to obtain keys for a getaway car by denying he had keys. During the next approximately 90 minutes, appellant led the Languevs around the house at gunpoint to48

the kitchen, the bedroom, and various other rooms, sometimes looking for clothing and sometimes for no apparent reason. Throughout the time he held them captive, appellant was hostile and threatening . He shouted at his elderly victims and point ed the gun at
them. Appell ant released Vladimir only when the police sire ns were no longer audible; appellant wanted Vladimir to look outside for the police. When Vladimir left the house, he was afraid to go to the police because, as far as Vladimir knew, appellant continued to
ho ld Tamara hostage. Tamara was so traumatized that after her escape, she was treated by paramedics

. Little, if any, of the movement of the Languevs within the house was necessary for appellant to obtain property. Initially, appellant bound and confined t he Languevs in the bedroom for about 20 minutes, which was ample time for him to look through the house for clothing or other items he wanted to take. When he came to the bedroom to get the Languevs, he demanded car keys, but did not obtain them. From th at point on, none of the movement was incidental to the robbery. The ongoing movement at gunpoint increased the risk of harm to the elderly Languevs , both of whom had medical conditions

. Even when given an opportunity to flee to the police, Vladimir was afraid to take advantage of the situation. The evidence of asportation in this case is comparable to that
found sufficient in Leavel , supra , 203 Cal.App.4th at pp. 835

- 836. The evidence amply supports the conclusion that the movement of the Languevs was not incidental to the robbery, and greatly increased the risk of harm to the elderly couple.
Intent to Rob To be guilty of aggravated kidnapping the evidence must show that appellant intended to rob the Languevs at the time he held or detained them. ( People v

. Curry (2007) 158 Cal.App.4th 766, 779.) “[A] kidnaping for the purpose of robbery may be committed even when the robbery itself fails

. . . .” ( People v

. Beaumaster (1971) 17 Cal.App.3d 996, 1007.) It does not matter whether appellant intended to commit a robbery when he entered the house at 118 English Drive; what matters is whether he49

intended to rob the Languevs when he kidnapped them. “Criminal intent will rarely be shown by direct evidence and must frequently be inferred from a defendant’s conduct.” ( People v

. Gilbert (1992) 5 Cal.App.4th 1372, 1380.) Here, to infer appellant’s intent when he kidnapped the Languevs, we look to appellant’s conduct a short time before he entered the English Driv e home

— what he did
at Secret Garden Too. There, upon ent ering the nursery, when Chapman offered appellant anything he wanted, he demanded her car key. He was not, however, able to use her key to start the car. Not long after he fled from Secret Garden T oo, appellant entered the house at 118 English Drive. Appellant asserts that it is likely that when he entered the house he did so to avoid being apprehended by the police. We acknowledge that is a possibility

— h e entered the
home sometime after 12:00 noon on a weekday when it would have been possible no one
was home. Nevertheless, t hat is not the issue

. It is reasonable to infer that once appellant realized the house was occupied, he intended to complete what he had failed to achieve at Secret Garden Too

— obtain a getaway car. That appellant failed to achieve his objective because Vladimir denied having car keys is irrelevant on the issue of his intent. ( People

v
. Beaumaster , supra , 17 Cal.App.3d at p. 1007 [ kidna p ping for the purpose of robbery
may be committed even when the robbery itself fails] .) In sum, we find sufficient evidence to establish the asportation element of kidnapping and sufficient evidence that appellant intended to commit a robbery when the kidnapping commenced

. Sufficiency of the Evidence

— Counts 33 , 34 , 35 , 36 , 37 and 39 The jury convicted appellant in counts 33, 34, and 35 of the attempted false imp risonment for protection (§§664/ 210.5) of Monica Rocha, a teacher at the Secret Garden Too (count 33) ; Kristin Van Kley, Hayden’s mo ther (count 34) ; and
four

- and

- a

- half

- month

- old Hayden (count 35) ; and in counts 36 through 39 of the false imprisonment for protection of the infants who were in the nursery when appellant ran50

into the room

— nine

- month

- old Anahi (count 36), eight

- month

- old Fayana (count 37), eight

- month

- old Dean (count 38), and six

- month

- old C.J. (count 39). Appellant argues that the evidence here is insufficient to establish that he falsely imprisoned the infant children, or that he attempted to falsely imprison Rocha, Van Kley, or Hayden. As to the false imprisonment counts of the infants he asserts his conduct was directed solely at Chapman and he did not compel any of the babies to stay where they did not wish to stay, or to go where they did not wish to go. Further, as to the attempted false imprisonment of Rocha, Van Kley and Hayden, appellant argues that the evidence is insufficient to establish that he specifically intended to falsely imprison Rocha, Van Kley, or Hayden for purposes of protection. Moreove r, he asserts that the evidence is insufficient to establish that he took a direct step toward compelling Rocha, Van Kley, or Hayden to remain where they did not wish to remain, or to go wher e they did not wish to go

. Appellant asserts that i n fact, Rocha, Van Kley, and Hayden left the room within two seconds of the time he entered the room. They went exactly where they wanted to go

— away from him

. Appellant contends that he did not restrain, or even attempt to restrain , Rocha, Van Kley, or Hayden be cause he made no
effort whatsoever to prevent them from leaving, and once they left, he made no attempt to get them back. False Imprisonment for Protection of the Infants “False imprisonment is the unlawful violation of the personal liberty of another.” (§ 236.) In this context, a victim’s personal liberty is violated when he or she is

“ ‘ “compelled to remain where he does not wish to remain, or to go where he does not wish to go.” ’ [Citations.]” ( People v

. Reed (2000) 78 Cal.App.4th 274, 280.) “It is the restraint of a person’s freedom of movement that is at the heart of the offense.” ( Ibid

. ) The victim need not be confined in an enclosed space. ( People v

. Dominguez (2010) 180 Cal.App.4th 1351, 1357 ( Dominguez ). ) “False imprisonment may be committed by words or acts and merely by operation upon the will of the individual or by personal51

violence, or both. [Citations.]” ( Id. at pp. 1360

- 1361; see People v

. Zilbauer (1955) 44 Cal.2d 43, 51.) “False imprisonment is a misdemeanor unless it is ‘effected by violence, menace, fraud, or deceit,’ in which case it is a felony.” ( People v

. Wardell (2008) 162 Cal.App.4th 1484, 1490 , quoting § 237, subd. (a).) “ ‘Force is an element of both felony and misdemeanor false impr isonment. Misdemeanor false imprisonment becomes a felony only where the force used is greater than that reasonably necessary to effect the
restraint. In such circumstances the force is defined as “violence” with the false imprisonment effected by such v iolence a felony.’ [Citation.]” ( People v

. Castro (2006) 138 Cal.App.4th 137, 140.) “Menace is a threat of harm express ed or implied by words

or act. [Citation.]” ( Dominguez , supra , 180 Cal.App.4th at p. 1359; see People v

. Reed , supra , 78 Cal.App.4th at p. 280.) In this case, the jury was instructed that menace

“ means a verbal or physical threat of harm . The threat of harm may be express or implied .” “Every person who commits the offense of false imprisonment, as defined in
Section 2 36, against a person for purposes of protection from arrest, which substantially increases the risk of harm to the victim, or for purposes of using the person as a shield is punishable by imprisonment pursuant to subdivision (h) of Section 1170 for three, five, or eight years.” (§ 210.5) The court instructed the jury that to find appellant guilty of false imprisonment for protection, they had to find, among other things, that he “made the other person stay or go somewhere against that person’s will.

. . . ” Appellant asserts that there was no evidence he falsely imprisoned anyone o ther than Chapman. He argues that he did not compel any of the babies to stay where they did not wish to stay, or to go where they did not wish to go. None of the babies were m ade to stay or go anywhere against their will. Furthermore, he argues that he did not use any force against the babies.52

The amount of force required to constitute felony false imprisonment of an infant or young child was addressed in Dominguez , supra , 18 0 Cal.App.4th at pp. 1357

- 1358

. The Dominguez court noted that in In re Michele D

. (2002) 29 Cal.4th 600, ( Michele D .) the court had addressed the issue of the amount of force required to constitute a kidnapping of an infant or young child. ( Dominguez , supra , at p. 1357.) As the Dominguez court explained it , “ In Michele D ., the mi nor, her friend, and the friend’ s infant child were in a store. When the minor and her friend were briefly separated, the minor took the infant without permission. The minor was found by the juvenile court to have violated section 207, subdivision (a), by kidnapping the infant. The juvenile court also found the infant was under the age of 14 and was kidnapped with the intent to permanently deprive her parent of custody under section 667.85. ( Michele D ., supra , at pp. 603

- 605 .) ” ( Ibid .)
The Dominguez court noted that “[t] he Supreme Court ‘ granted review to resolve the issue of what quantum of force, if any, must be shown to sustain a conviction for kidnapping when the victim is an unresisting infant or child. ’ ( Michele D ., supra , 29 Cal.4th at p. 603.) The court held ‘ that the amount of force required to kidnap an unresisting infant or child is simply the amount of physical force required to take and carry the child away a s ubstantial distance for an illegal purpose or with an illegal intent. ’ ( Ibid

. ) ” ( Dominguez , supra , 180 Cal.App.4th at p. 1357.)

“ In the ordinary kidnapping case, the amount of force required is ‘ something more than the quantum of physical force necessary to effect movement of the victim from one
location to another. ’ ( Michele D ., supra , 29 Cal.4th at p. 606.) However, even if force is not used in the conventional sense, a wrongful intent in carrying off an infant is sufficient to constitute force for pur poses of the kidnapping statute. ( Ibid

. ) ‘ The fact that the Legislature may not have considered every factual permutation of kidnapping, including the carrying off of an unresisting infant, does not mean the Legislature did not intend for53

the statute to reach that conduct. ’ ( Ibid

. ) ” ( Dominguez , supra , 180 Cal.App.4th at
p. 1357.)

“ In reaching its conclusion, the Michele D

. court referred to its decision in People
v. Oliver (1961) 55 Cal.2d 761 ( Oliver ), in which the defendant was convicted of kidnapping under facts showing the victim, a baby, went willingly with the defendant. In order to avoid the possibility of an unjust result if the kidnapping statute were given a literal interpretation, the Supr eme Court held the statute should be given a ‘ sensible construction, ’ and the element of force is established ‘ if the taking and carrying away is done for an illegal purpose or with an illegal intent. ’ ( Id. at p. 768 .) ” ( Dominguez , supra , 180 Cal.App.4th at p p . 1357

- 1358.)

“ Michele D

. noted that dicta in Parnell v

. Superior Court (1981) 119 Cal.App. 3d 392, 402

- 403, footnote 3 ( Parnell ) and People v

. Rios (1986) 177 Cal.App.3d 445, 451 ( Rio s ) had interpreted Oliver as standing for the proposition that the ‘ force requirement, like the consent requirement, is relaxed or eliminated in a kidnapping that involves an
infant or a small child. ’ ( Michele D ., supra , 29 Cal.4th at p. 608 .) The Supreme Court
held ‘ the Parnell

- Rios construction of Oliver has merit because the consent and force elements of kidnapping are clearly intertwined. [Citation.] [And if, as in Oliver , ] the
child victim went “willingly” with defendant, the implication is that force was not used against h im. Thus, our holding in Oliver

— that, where the victim by reason of youth or mental incapacity can neither give nor withhold consent, kidnapping is established by proof that the victim was taken for an improper purpose or improper intent

— was reasonably ex tended in Parnell and Rios to encompass situations in which, because of the victim’ s youth, there is no evidence the victim’ s will was overcome by force. ’ ( Michele
D ., supra , at p. 609.) ” ( Dominguez , supra , 180 Cal.App.4th at p. 1358.)

“ ‘ That said, it remains true that no California case has yet defined the quantum of force necessary to establish the force element of kidnapping in the case of an infant or
small child. We formulate that standard as follows: the amount of force required to54

kidnap an unr esisting infant or child is simply the amount of physical force required to take and carry the child away a substantial distance for an illegal purpose or with an illegal intent. ’ ( Michele D ., supra , 29 Cal.4th at p. 610

. . . . ) ” ( Dominguez , supra , 180 Cal.App.4th at p. 13 5 8.)
The Dominguez court assumed “the discussion of force in the context of a kidnapping prosecution in Michele D

. applies equally to the force requirement of false imprisonment.” ( Dominguez , supra , 180 Cal.App.4th at p. 1358.) Appellant argues that he did not “touch or move the babies and he certainly he [ sic ] did not move them a “ substantial ” distance. ” While the court in Dominguez , supra , 180 Cal.App.4th at p ages 1358

- 1359, found that the movement of an unresisting
four

- year

- old girl was sufficient to support the conviction for false imprisonment, we are not convinced that the Dominguez court intended to impose that as a minimum evidentiary requirement for false imprisonment of an infant. Furthermore, this case is distinguis hable from Dominguez . In this case , the force was used to restrain the movement of the infants, not to move them. It appears that appellant takes the position that because nothing he did was directed toward the infants, the evidence does not support an inference that he intended to restrai n them. The evidence, however, supports the inference that he intended to restrain everyone in the room when he swept the room with a gun and told the occupants not to move. That the infants could not understand what appellant was saying is not relevant. Of the four infants in the room with Chapman, only two were mobile and none had the mental capacity to flee or consent to staying in the room

. “[F]or the purpose of a felony false imprisonment conviction under sections 236

. . . when the victim is a chi ld of tender
years, [it is] sufficient if the crime is ‘ effected ’ by ‘ violence, menace, fraud, or deceit ’ directed to the custodial parent [in this case custodial adult Chapman] rather than to the child [himself or ] herself.” ( Rios , supra , 177 Cal.App.3d at p. 450 .)55

Alternatively, appellant argues that the evidence does not show that he held the babies hostage , which required holding them “ ‘ for purposes of using the person as a
shield , ’ ” and thus his conduct did not amount to false imprisonment for protection. Appellant relies on People v

. Gomez (1992) 2 Cal.App.4th 819 ( Gomez ) (disapproved on other grounds in People v

. Lewis (2008) 43 Cal.4th 415, 519, fn. 2 9 ) in support of his position.
In Gomez , supra , 2 Cal.App.4th 819, the court defined a hostage as “ ‘[a] person held as a pledge that certain terms will be fulfilled.’ ” ( Id

. at p. 825, fn. 3.) However, Gomez involved a situation where a hostage was tied up and abandoned and the
defendant was not arrested until much later. The court in Gomez discussed the risk of “imminent” arrest and reversed the section 210.5 conviction. ( Gomez , supra , at
pp. 825

- 826.)
As noted ante , under section 210.5, the offense of false imprisonment for protection occurs when the perpetrator falsely imprisons “a person for purposes of protection from arrest, which substantially increases the risk of harm to the victim, or for
purposes of using the person as a shield

. . . .” In Gomez , the court found that the statutory language “is unambiguous and plainly means there must be a threat or risk of imminent arrest.” ( Gomez , supra , 2 Cal. App.4th at p. 825.) The court held that the
eviden ce did not support the inference that the defendant tied up the victim to prevent his imminent arrest. ( Id

. at pp. 825

- 826.)
In contrast to the facts in Gomez , in this case appellant had just escaped from custody by shooting a deputy sheriff in the head with a taser and had fired a shot at a person from the MRI center. Most certainly, appellant knew that he faced imminent arrest, and it is reasonable to infer that during the brief period in which he held the babies hostage at gunpoint he substantially i ncreased the risk of harm to them ; and we have no doubt that if the police had arrived he would have used everyone as a hostage for purposes of protection from arrest

. That appellant quickly changed his mind and decided56

instead to try to flee in Chapman’s car does not undermine the evidence showing he falsely imprisoned hostages for the purpose of protection from imminent arrest

. Attempted False Imprisonment of the Adult s and Hayden Appellant argues that the evidence is insufficient to support his convictions for the attempted false imprisonment for protection of Rocha (count 33) , Van Kley (count 34 ), and Hayden (count 35)

. Appellant contends that the evidence is insuff icient for two

reasons: o ne , because the evidence was lacking that he intended to falsely imprison for protection anyone at Secret Garden Too ; and two , because the time he, Rocha, Van Kley , and Hayden were in the room together was insufficient to establis h an attempt. As appellant points out, t he evidence established that Van Kley went to the Secret
Garden Too to pick up her son Hayden. As Rocha was handing Hayden to Van Kley, appellant came up the ramp waving a gun and began ramming the door. He broke through the door and said, “ nobody move. ” Van Kley testified that “one second” later she opened the door, ran outside, and hid. Rocha ran out of the room within two seconds, behind Van Kley, carrying Hayden. They left immediately. An attempt to commit a crime consists of a specific intent to commit the crime and
a direct but ineffectual act done toward its commission. ( People v

. Siu (1954) 126 Cal.App.2d 41, 43 .) Commission of an element of the underlying crime other than
formation of intent to do it is not necessary. ( People v

. Dillon (1983) 34 Cal.3d 441,
453 .) Although mere preparation such as planning or mere intention to commit a crime is insufficient to constitute an attempt, acts that indicate a certain unambiguous intent to
commit that specific crime and which are in themselves an immediate step in the present execution of the criminal design will be sufficient. (See People v

. Siu , supra , at p. 43; CALCRIM No. 460) Once appellant swept the room with his eyes and gun and told everyone not to

move , t he only act that remained to complete the substantive crime was the victims’
submission to the threats of harm. The fact that Van Kley and Rocha, with baby Hayden57

in her arms, took the risk of fleeing immediately is what made this an attempt ed false imprisonment rather than a completed offense. That these victims were only in the room
for two seconds is of no moment. Since we have rejected appellant’s argument ante that the evidence was lacking that he intended to falsely imprison for prote ction anyone at
Secret Garden Too , we find substantial evidence to support the jury’s finding that appellant attempted to falsely imprison Rocha, Van Klay, and Hayden. Sufficiency of the Evidence

— Count 9 The jury convicted appellant i n count 9 of receiving stolen property, which was identified in the information and verdict as “jewelry, rings, necklaces, bracelets , jewelry case.” In closing argument, the prosecutor identified these items as belonging to the Anleys and indicated that they we re the items fou nd in appellant’ s pocket. Appellant asserts that his conviction for receiving this stolen property must be
reversed and dismissed under the “ Double Jeopardy ” provisions of the Fifth Amendment to the United States Constitution and Article I, Section 15 of the California Constitution, because, absent two exceptions that do not apply here, a thief cannot be convicted of receiving the property he stole. Responden t concedes this issue, and we agree. The jury convicted appell ant of robbery (§ 211) in count 4 and residential burglary (§ 459) i n count 5

. Both counts involved the taking of personal property from either the Anley residence or the persons of Teodros an d Patricia. At the time of his arrest, items stolen during the Anley home invasion were found in appellant’s pocket. Appellant was detained and arrested immediately after the crimes, indeed while Sheriff ’ s de puties were still at the Anleys’ home. When a ppellant was detained, Deputy Huntsman searched him

. In the pocket of appellant’s pants the deputy found severa l pieces of assorted jewelry , including a gold necklace, a ring belonging to Teod r os ’s father , and a small red jewelry
pouc h that belonged to Pa tricia. The jewelry was identified by the Anleys even before appellant was transported to the s heriff’ s department for booking.58

In People v

. Jaramillo (1976) 16 Cal.3d 752, the Supreme Court applied the rule
that a defendant cannot be convicted of both stealing and receiving the stolen property, in the context of a conviction for violating Vehicle Code section 10851. ( People v

. Jaramillo , supra , at p. 757.) The court found that “ [W]hen an accused is convicted of [theft], which necessarily requires a fi nding that the accused intended to steal, he cannot also be convicted of receiving that same stolen property. ” ( Id

. at pp. 758.) There are two exceptions to this principle: (1) when the act of receiving is completely divorced from the theft, as when a t hief disposes of property and later in a separate transaction receives it again; and (2) when the thief is a co

- conspirator of the receiver. ( People v

. Strong (1994) 30 Cal.App.4th 366, 371, fn. 5.) Under the facts of this case, n either exception applies here. The facts support the conclusion that appellant possessed the stolen property solely as the thief, waiting to dispose of it, not as a “ fence ” holding the property
for the thief. Accordingly, we must reverse appell ant’s conviction on count 9. Admission of Gang Evidence and Threat Evidence
Before trial, the court granted a defense motion to sever the gang charges, counts
52 and 56. Earlier, i n discussing defense counsel’s motion , the trial court noted,
inter alia, that the gang charges had a “ limited place in connection with all of the other charges in the case” and that there was “ the potential to prejudice ” appellant. Pursuant to
the prosecution’ s motion to admit gang evi dence, and over defense objections , the court
admitted the following gang evidence.
The prosecution called Sergeant Morgan Chappel l to testify

. 25 He testified that i n the summer of 2011, the Apple Hill murder trial was going on and Detective Pisturino

25 Although the prosecution did not seek to qualify Sergeant Chappell as a gang expert, he testified that as part of his assignment he testified as an expert on Norteño gangs “probably 30” times.59

was the lead detective on the case. The case involved some No r t eño gang members murdering a young man in Watsonville. W hile Detective Pisturino was a gang detective, he received a kite and letter from appellant. Sergeant Chappell explained that a “ kite ” is
a small note an inmate writes that usually contains information desi gnated for the recipient only. He explained that k ites are used most frequently by Norteño gang
members. In the kite, appellant offered to set up a murder suspect, to obtain a confession from a member of the Nuestra Raza prison gang, who m he referred to as a “bro.” In Sergeant Chappell ’ s opinion, the consequence of offering to snitch on a “bro” would be
death

. 26 Also, if fellow gang members found out he sent this kite to law enforcement, appellant’ s life would be in jeopardy. The prosecutor had Sergeant Chappell explain the meaning of certain things written in the kite. For example , when appellant mentioned the

“ policies and pr ocedures ” in his kite, he could have been referring to the code of conduct Norteños are expected to follow while in cust ody. The questions in the kite appeared to refer to a “ seven on seven, ” which is the way Norteños do miniature background checks
on each new person that comes into the jail or prison to make sure the person is not a
snitch o r rival gang member. The “seve n on seven” asks the new arrival seven basic questions, so the Norteños can conduct the background check. The r eference to an

“ IR ”

— incident report, means that the Norteño gang member in charge of the cell block asked another Norteño gang member to write a n incident report, and the latter would
need to do that. Sergeant Chappell explained to the jury the relationship between the Norteños, the Nuestra Familia, and the Nuestra Raza and how the latter two prison gangs
are related to the Norteño street gang. Appellant’ s kite mentioned the murder of
Leonardo Barajas. Sergeant Chappell said he was familiar with the murder of Barajas in

26 Sergeant Chappell told the jury that “[a] bro and the Nuestra Raza

. . . is a prison gang but it’s also organized crime. They function inside and outside of prison and they are very dangerous, very violent

. . . .”60

2008. He explained that Barajas dropped out of the Norteño gang, and leaving the gang
cost him his life. Barajas had agreed t o t estify against a Norteño associate regarding the assault of Rico Hayes. Before Sergeant Chappell testified, t he court admitted evidence about appellant’ s
tattoos

— a stipulation that appellant’s abdomen was photograph ed on March 27, 2009, and again on September 27, 2011. In the later photograph appellant had a tattoo of an
upper case “ N ” and a portion of a letter to the right of it, a tattoo on his abdomen to the
left of the “N” showing upper case “OR” and “T ” and another photograph of app ellant’s left hand showing a new tattoo that read “oppression breeds resistance. Resistance brings freedom.” 27 In addition to the gang evidence, Teodros Anley testified that in 2010 he had been subpoenaed to testify. On October 5, 2010, he received a let ter at his home address with a return address from Santa Cruz County Jail. Inside was a threatening letter created from items cut from newsprint. The letter contained Patricia’s social security number. The first line contained the word “dead” and the se cond had the phrase “memorial service.” Teodros felt as if the sender was trying to keep them from testifying by making
death threats. The parties stipulated that the set of clippings sent to the Anleys was an inmate letter from the county jail and was in the type of envelope typically issued by
inmates. Further, the parties stipulated that a further readiness conference had been set
for September 30, 2010, with trial in the Anley m atter set for October 1 8 , 2010

. In addition to the foregoing, Jyler Raines testified that during his first year in jail he received a letter from appellant. The letter had a friendly tone, but it stated that

a ppellant knew Raines had talked to the police and told him that he should stop. Raines

27 Although the jury heard the evidence that appellant had the tattoo on his hand, the court did not admit the photograph. The court refused to admit the photograph because the tattoo was not “clearly [a] gang

- related tattoo.”61

took that to mean that appellant did not want him to testify. In addition, Raines received a letter from Makuria Banks, a girl he had known in high school but had not had contact with in several years. Banks told Raines to “man up and not testify against Maurice.” He took the letter as a threat because it said that if he testified his criminal “paperwork” would be given to other inmates and he would be in danger. On the day of the escape, but before appellant was caught, a search of his cell uncovered a letter t o appellant from “Makuria.”
Raines testified that he was a maximum security inmate because he “rolled himself up.” Other inmates told Raines they had his pape rwork indicating that he was testifying. They told him to get off the yard. It was not really a threat; they just asked Raines to leave so nothing bad would happen. Raines informed an officer and was m ov ed to protective custody.
I n September 2012 , Raines said that he was put in the same transport van as appellant. By that point, Raines had already agreed to testify against appellant. Appellant told him that everything was Raines’s fault, and Raines was responsible for taking appellant away from hi s family. The court instructed the jury at the time of Raines ’s testimony that it could not
consider Raines ’s testimony for the truth of the matter but only to assess Raines’s state of
mind and credibility in testifying. Appellant argues that his trial was rendered fundamentally unfair, depriving him of due process (U.S. Const. 5th & 14th Amends.; Cal. Const., art. I , § § 7 , 15) . He asserts
that the admission of the gang evidence and the other evidence portrayed him as a

v iolent, threatening person. He asserts that the gang evidence was irrelevant and inadmissible under Evidence Code section 352; and the other evidence, involving Raines,
should have been exclude d under Evidence Code section 352. He contends that t he

erron eous admission of this evidence, individually or combined, was prejudicial

.62

“ California courts have long recognized the potentially prejudicial effect of gang membership. As one California Court of Appeal observed: ‘ It is fair to say that when the word “gang” is used in Los Angeles County, one does not have visions of the characters
from the “Our Little Gang” series. The word gang

. . . connotes opprobrious implications.

. . . [T]he word “gang” takes on a sinister m eaning when it is associated
with activities. ’ [Citation.] Given its highly inflammatory impact, the California Supreme Court has condemned the introduction of such evidence if it is only tangentially relevant to the charged offenses. [Citation.] In fa ct, in cases not involving gang enhancements, the Supreme Court has held evidence of gang membership should not be admitted if its probative value is minimal. [Citation.] ‘ Gang evidence should not be
admitted at trial where its sole relevance is to show a defendant ’ s criminal disposition or bad character as a means of creating an inference the defendant committed the charged
offense. ’ [Citation.]” ( People v

. Albarran (2 007) 149 Cal.App.4th 214, 223.) “Thus, as general rule, evidence of gang membership a nd activity is admissible if it is logically relevant to some material issue in the case, other than character evidence, is not more prejudicial than probative and is not cumulative. [Citation.] Consequently, gang evidence may be relevant to establish th e defendant’s motive, intent or some fact concerning the charged offenses other than criminal propensity as long as the probative value of the evidence outweighs its prejudicial effect. [Citations.] ‘ Evidence of the defendant’s gang affiliation

. . . can help prove identity, motive, modus operandi, specific intent, means of applying force or fear, or other issues pertinent to guilt of the charged crime. [Citations.]’ [Citation.] Nonetheless, even if the evidence is found to be relevant,
the trial court must carefully scrutinize gang

- related evidence before admitting it because of its potentially inflammatory impact on the jury. [Citations.]” ( People v

. Albarran , supra , 149 Cal.App.4th at p p . 22 3

- 22 4.) Evidence of defendant’s gang membership , although relevant to motive or identity , creates a risk the jury will improperly infer that63

defendant has a criminal disposition and is therefore guilty of the charged offense and thus must be carefully scrutinized. ( People v

. Carter (2003) 30 Cal.4th 11 66, 1194.) The People argue that the gang evidence introduced in this case was so minor and tangential that appellant’s argument in this c ourt

— that its admission was erroneous and prejudicial

— is longer than all the testimony and stipulations regarding tha t evidence presented to the jury at trial. Further, the People point out that t he prosecutor did not argue to the jury that appellant was a gang member or participated in gang activities.
Rather , the gang evidence was introduced for two purposes: ( 1) to support Raines’s credibility for testifying in the face of threats and ( 2) to show appellant’s consciousness of guilt whe n he wrote to a gang detective offering to set up a Norteño gang member in an unsolved homicide. We are not persuaded. Since the gan g charges in this case were severed, t he gang evidence in this case had no connection to the crimes with which appellant was charged . Further, the “kite” evidence could have been explained without any reference to kites being used primarily by Norteño gan g members; and the evidence of the relationship between the Norteños, the Nuestra Familia, and the Nuestra Raza and how the latter two prison gangs are related
to the Norteño street gang and how violent they are, along with the evidence of appellant’s tattoos showing that he had gained a gang tattoo , was simply irrelevant. The gang evidence had no relevance, so much so that it raised the distinct potential to sway
the jury to convict appellant regardless of his actual guilt. That being said, we turn to the issue of prejudice. Appellant claims that the admission of this evidence was so serious as to violate his federal constitutional rights to due process, rendering h is trial fundamentally unfair. (See Estelle v

. McGuire (1991) 502 U.S. 62, 70 ; People v

. Partida (2005) 37 Cal.4th 428, 439, [the admission of evidence, even if erroneous under state law, results in a due process violation only if it makes the trial funda mentally unfair ].) In the case of a deprivation of federal due process, reversal is required unless the State can prove beyond a reasonable doubt that the error did not64

contribute to the verdict. (See People v

. Boyette (2002) 29 Cal.4th 381, 428 [ Watson standard 28 applies to prejudicial

- error analysis for er rors of state law, while beyond

- a

- reasonable

- doubt standard of Chapman v

. California (1967) 386 U.S. 18 applies to similar analysis for federal constitutional errors].) In this case the standard of review is largely beside the point because the evidence against appellant was so overwhelming. In closing argument, trial counsel conceded that appellant was guilty of receiving stolen property from the Anleys (count 9), conce ded
counts 14

- 23 regarding the escape and assault on D eputy Bramanti, acknowledged that appellant was guilty of counts 26, 40 and 51 involving the burglaries at Secret Garden Too and the two houses on English Drive, conceded guilt for robbery and attempted carjacking of Tiffany Chapman, and admitted that appellant had unlawfully possessed a
firearm. Counsel made a weak argument that appellant did not participate in the burglary or the other offenses at the Anley residence. He argued that Raines was not cr edible, but acknowledged that Raines could be believed , in which case appellant was guilty of burgl ary and home invasion robbery. Further, t hat the jury decided this case on the facts and not on emotions is quite apparent because it acquitted appellant on counts 10 and 11 (§ § 136.1, subd. (c)(1), 137, subd. (b))

— the counts regarding the threats directed to the Anleys. If the jury had simply been inflamed by the gang evidence it would have convicted appellant on the threat

counts. Accordingly, we are conv inced beyond a reasonable doubt that the error did not contribute to the verdict. As to the other evidence with which appellant takes issue , we find no error in its
admission. Appellant concedes that evidence a witness is afraid to testify, or is fearful of retaliation, is relevant to the credibility of that witness and is therefore admissible.

28 People v

. Watson (1956) 46 Cal.2d 818.65

( People v

. Olguin (1994 ) 31 Cal.App.4th 1355, 1368.) However, citing People v

. Williams (1997) 16 Cal.4th 153, 200

- 201 ( Williams ) , he argues that the lett er allegedly written by Banks, the interaction Raines allegedly had with someone during a jail transport who m he believed to be a Norteño gang member, and his testimony about some other unidentified inmate having “papers” on him, was inadmissible and shoul d have been excluded under the general rule that evidence of an attempt by a third person to suppress evidence is inadmissible against a defendant when the attempt did not occur in the defendant’s presence and the defendant did not authorize the attempt. Appellant’s reliance on Williams is misplaced

. In that case the issue was whether evidence of third party threats was admissible against the defendant as evidence of the defendant’s consciousness of guilt. ( Williams , supra , 16 Cal.4th at pp. 200

- 201.) H ere, the evidence of third party threats was admitted only a s to Raines’s state of mind , not for appellant’s consciousness of guilt. Admission of the testimony was not fundamentally
unfair. Here, the court admitted two pieces of evidence of threat s made b y appellant to
Raines

— his ora l statement in the jail transport van and a letter he sent to Raines from the jail. Appellant argues that the evidence was inadmissible as more prejudicial than probative under Evidence Code section 352. We disagree. As “decisions of this state have long recognized [citations], a threat made by a defendant against a prospective prosecution witness, with the apparent intention of intimidating the witness, is properly admitted because an accused’s efforts to suppress evide nce against himself indicate a consciousness of guilt.” ( Vines , supra , 51 Cal.4th at p p

. 866

- 867 .) Finally, assuming for the sake of argument that the court abused its discretion under Evidence Code section 352 in admitting the threat evidence, we find no prejudice under any standard of review for the same reasons outlined ante

.66

Loss of Presentencing C redits Over appellant’s objection and the court’s denial of a request for an evidentiary hearing , the prosecutor recommended, and the trial court agreed , that based on numerous
acts of misconduct in jail appellant should be denied presentence conduct credits under section 4019, subdivision (c). On appeal, appellant asserts that he was denied his due process rights to contest the denial of credits. The People agree, but only to a limited

extent. We agree that a remand is necessary.
Under section 401 9, certain prisoners are entitled to good behavior credit for time spent in county jail, “unless it appears by the record that the prisoner has not satisfactorily complied with

. . . [jail] rules and regulations

. . . .” (§ 4019, subds.( a ) & (c).) Conduct credit for presentence custo dy is credited to the defendant’ s term of imprisonment “in the discretion of the court imposing the sentence.” (§ 2900.5, subd. (a).) Nevertheless, a court “must afford a defendant due process

— notice and a fair hearing

— in dete rmining the amount of conduct credit to which he or she is entitled. ( People v

. Duesler (1988) 203 Cal.App.3d 273, 276

- 277 .)” 29 ( People v

. Lara (2012) 54 Cal.4th 896, 901.) In this case, the court relied on several incident reports setting forth acts of misconduct appellant allegedly committed in jail , which were attached to the prosecutor ’s sentencing memorandum

. 30 Defense counsel was not served with a copy of the sentencing memorandum before the hearing. 31

29 In People v

. Duesler , supra , 203 Cal.App.3d at p. 277, the court held that “before a sentencing court may withhold conduct credits, the defendant is entitled to prior notice and an opportunity to (1) rebut the findings of his jail violations , and (2) present any mitigating factors.” In part, Duesler relied on Wolff v

. McDonnell (1974) 418 U.S. 539, 563

- 566, which sets forth the minimal due process requirements for prison disciplinary proceedings.

30 There are some reports attached to the pr obation officer’s report. However, the probation officer did recommend that appellant receive some conduct credits.

31 At the sentencing hearing, the prosecutor explained to the court that she had not (continued)67

In general, the probation report is the appropriate vehicle for notifying a defendant that his or her conduct credits are in jeopardy by suggesting or recommending withholding of those credits. ( People v

. Duesler , supra , 203 Cal.App.3d at p. 277.) In this case, as noted, the probation report referenced some jail incidents , but did
recommend that appellant receive some conduct credit. The court based its withholding of credits on the prosecutor’s recommendation and report s attached to the prosecutor’s sentencing memorandum of which appellant did not have notice. Thus, appellant was not notified that presentence credits would be an issue at sentencing and thus was not afforded due process

. Due process in the award of cred its “ entails sufficient notice of the
facts that restrict his [or her] ability to earn credits and, if he [or she] does not admit them, a reasonable opportunity to prepare and present a defense. ” ( People v
. Lara , supra , 54 Cal.4th at p. 906.) Appell ant was denied this opportunity. A ccordingly, we conclude that appellant is entitled to a limited remand in order to have notice of and an opportunity to contest the withholding of his presentence conduct credits

. Appellant is entitled to a new sentencing
he aring, upon proper notice, limited to the issue of presentence conduct credits. Finally, a ppellant raises issues with the court’s oral pronouncement of judgment being in conflict with the abstract of judgment. Specifically, he contends that a
three

- year , four

- month sentence for the gun enhancement of count 26 as reflected in the abstract of judgment was not imposed by the court during the oral pronouncement of judg m e nt

. Further, during the oral pronouncement of judgment the court calculated his
determin ate sentence as 138 years, four months, consecutive to six life terms of seven years to life (42 years). Defense counsel calculated 135 years, 10 months. The clerk’s

received back a file

- stamped copy of the sentencing me morandum, but would provide a copy to counsel once she did. We infer from this that defense counsel had not received a copy of the sentencing memorandum.68

minute order from the sentencing hearing reflects a determinate sentence of 134 years, two months, consecutive to 42 years. The amended abstract of judgment reflects a determinate sentence of 140 years, two month s , consecutive to 42 years, for a total of
182 years, two months. Appellant requests a remand for a determinatio n of his
determin ate sentence. Since we must remand this case for a new sentencing hearing, the court can clarify
these issues on remand. Our review of the record reveals that the court imposed a sentence on count 30, first degree robbery of Tiffany Chapman at the Secret Garden Too (§§ 211, 212.5, subd. (a)), but stayed the sentence under section 654. However, nowhere in the abstract of judgment is there a sentence on count 30, stayed or otherwise.
A s a final point , t he court imposed a $1,180 court facilit ies fee under Government
Code section 70373. That section requires a court to impose an assessment of $30 for each felony conviction. Since appellant was convicted of 39 counts, and 39 multiplied by $30 equals $1,170 , the court erred in imposing a court facilities fee of $1,180

. The court
can correct its calculation on remand. Disposition
The judgment is reversed. The matter is remanded to the trial court to hold a hearing to determine whether appellant is entitled to presentence conduct credits; to clarify appellant’s determinate sentence; and to correct errors in the abstract of judgment
and in the amount of the court facilities fee.32

_________________________________ ELIA, J.

WE CONCUR:

_______________________________ RUSHING, P. J.

_______________________________ WALSH, J. *

* Judge of the Santa Clara County Superior Court assigned by the Chief Justice pursuant to article VI , section 6 of the California Constitution