CERTIFIED FOR PARTIAL PUBLICATION*
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
THE PEOPLE, B170486
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. MA024413)
MARK JOHAHN WASHINGTON et al.,
Defendants and Appellants.
APPEAL from judgments of the Superior Court of Los Angeles County,
William Pounders , Judge. Reversed in part, affirmed in part and remanded for
David M. Thompson, under appointment by the Court of Appeal, for Defendant
and Appellant Mark Johahn Washington.
Ava R. Stralla, under appointment by the Court of Appeal, for Defendant and
Appellant Evyn Delayne Mack.
Bill Lockyer, Attorney General, Robert R. Anderson and Pamela C. Hamanaka,
Assistant Attorneys General, Jaime L. Fuster and Chung L. Mar, Deputy Attorneys
General, for Plaintiff and Respondent.
* Pursuant to California Rules of Court, rules 976(b) and 976.1, this opinion is
certified for partial publication. The portions of this opinion to be deleted from
publication are those portions enclosed within double brackets, [[ ]].
Mark Johann Washington and Evyn Delayne Mack appeal the judgments entered
after conviction by jury of two counts of kidnapping for the purpose of robbery, three
counts of robbery, three counts of assault with a firearm and nine counts of false
imprisonment. (Pen. Code, §§ 209, subd. (b)(1), 211, 245, subd. (a)(2), 236.)1 The jury
found Washington and Mack both personally used a firearm in the commission of each
offense and that each offense was committed for the benefit of a criminal street gang.
(§§ 12022.53, subd. (b), 186.22, subd. (b)(1).) We reverse the convictions of kidnapping
for the purpose of robbery but otherwise affirm the judgments and remand for
Appellants committed a take-over robbery of a bank. While Mack robbed the
tellers, Washington moved the bank manager from her office to the vault room, a distance
of approximately 25 feet, and forced the manager to open the vault with the assistance of
a teller who moved from the teller area to the vault room, a distance of approximately 15
feet. Appellants took cash from the vault, then fled.
At the close of the People‟s evidence, appellants sought dismissal of the counts
that alleged kidnapping for the purpose of robbery on the ground the movement of the
manager and the teller was merely incidental to the robbery, citing People v. Daniels
(1969) 71 Cal.2d 1119, 1139. Daniels held a conviction of kidnapping for the purpose of
robbery in violation of section 209, subdivision (b), commonly referred to as aggravated
kidnapping, requires “movement of the victim that is not merely incidental to the
commission of the underlying crime and that increases the risk of harm to the victim over
and above that necessarily present in the underlying crime itself.” (People v. Martinez
(1999) 20 Cal.4th 225, 232; People v. Daniels, supra, at p. 1139.)2
1 All further statutory references are to the Penal Code.
2 Section 209, subdivision (b), provides: “(1) Any person who kidnaps or carries
away any individual to commit robbery [or other enumerated crimes] shall be punished
The trial court noted the absence of any published case applying Daniels to a bank
robbery situation in which the victims are transported from a public area of a bank to the
secure setting of a vault room. The trial court found the movement of the victims in this
case increased the risk of harm and, therefore, the evidence presented a jury question as
to whether appellants had committed aggravated kidnapping.
On appeal, appellants renew their challenge to the counts alleging kidnapping for
the purpose of robbery. They also claim insufficient evidence in several other respects,
sentencing error and an error in the abstract of judgment.
In the published portion of the opinion, we conclude the brief movement of the
manager and the teller from the public area of the bank to the vault room was incidental
to the robbery within the meaning of Daniels. Accordingly, we reverse the convictions of
kidnapping for the purpose of robbery and remand for resentencing on the remaining
counts and enhancements. In the unpublished portion of the opinion, we reject
appellants‟ remaining claims.
1. The bank robbery.
On April 25, 2002, at about 9:00 a.m., Carol Sierra saw Washington emerge from
a Ford Mustang parked next to her car and enter the Washington Mutual Bank in
Palmdale carrying a sawed-off shotgun.
Tellers Jerome Maudlin and Diane Reynoso were assisting their first customers of
the day. The lobby of the bank contained a line of customers. Mack jumped onto the
counter and announced, “This is a mother fucking robbery, nobody push any buttons,
don‟t touch anything. Everybody get down on the floor.” Mack had what appeared to be
a handgun wrapped in a blue bandanna and he wore a dark blue or black bandanna over
by imprisonment in the state prison for life with possibility of parole. [¶] (2) This
subdivision shall only apply 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, the intended underlying offense.”
the lower portion of his face. When Mack jumped to the teller area, the object in the blue
bandanna struck Maudlin below the right eye. The object felt hard, like a piece of metal,
and the blow left a mark on Maudlin‟s face. Mack grabbed Reynoso by the hair and
threw her to the floor.
Mack directed Maudlin to empty the cash drawers into a cloth bag. When
Maudlin had difficulty, Reynoso rose to assist him. Mack alternatively pointed the
bandanna-covered object at Maudlin and Reynoso as they emptied cash drawers at his
Bank manager Debbie Reif was speaking to a 911 operator when Washington
entered her office wearing a dark blue ski mask over his face and carrying a sawed-off
shotgun. Washington pointed the shotgun at Reif‟s head and demanded “the money.”
Reif indicated she needed a second set of keys to open the vault, then went to the door of
the office and asked Reynoso to assist her. Reynoso left the tellers‟ area and went with
Reif and Washington to the vault room.
Rief testified she traveled a distance of approximately nine feet from the office to
the door of the vault room and five or six additional feet into the vault room. Reynoso
testified she moved approximately 15 feet from the teller area to the vault room but had
to return to the teller area to retrieve her keys which Reif needed to open the vault.
After Reynoso gave Rief her keys, Mack pressed the bandanna-covered object into
Reynoso‟s chest and ordered her to the floor. Rief opened the vault and removed cash
that Washington placed into a bag. One of the robbers said, “Thank you very much.
Have a nice day,” before they walked out the back door of the bank. The initial loss to
the bank was approximately $160,000.
Shortly after the robbery, Sheriff‟s deputies traced the Mustang parked in front of
the bank to Washington at an address on Olive Drive in Palmdale. Deputies went to the
address and spoke to Darnetta Wheat who indicated Washington had just telephoned her
from a residence on Via Del Rio in Palmdale, approximately one mile northeast of the
bank. At about 10:30 a.m., sheriff‟s deputies found Washington, Mack and two females
in the Via Del Rio residence. At a field showup, Reynoso and Maudlin each indicated
the physical appearance of Washington and Mack matched the physical characteristics of
In the Via del Rio residence, deputies found cash totaling $128,835, including five
bills whose serial numbers the bank previously had recorded in the event of a robbery.
A loaded shotgun was found in the bathroom closet.
3. Verdicts, findings and sentencing.
The jury found appellants guilty as charged and found true personal use of a
firearm and criminal street gang enhancements as to each appellant and each count.
The trial court sentenced Washington and Mack to substantial prison terms, in each case
selecting kidnapping for the purpose of robbery as the principal term.3
1. The evidence is insufficient to support the convictions of kidnapping for the
purpose of robbery.
Appellants contend application of the two-part Daniels test to the facts of this case
reveals the movement of bank manager Reif and teller Reynoso to have been merely
incidental to the commission of robbery. Thus, the evidence was insufficient to support a
conviction of kidnapping for the purpose of robbery.
a. General principles.
As previously noted, Daniels held a conviction of kidnapping for the purpose of
robbery requires “movement of the victim that is not merely incidental to the commission
of the underlying crime and that increases the risk of harm to the victim over and above
3 The trial court sentenced Washington to life with a minimum term of 15 years
before parole eligibility plus 27 years and 4 months. The trial court sentenced Mack to a
second strike term (§§ 1170.12, 667, subds. (b) through (i)) of life with a minimum term
of 30 years before parole eligibility plus 35 years and 4 months.
that necessarily present in the underlying crime itself.” (People v. Martinez, supra, 20
Cal.4th at p. 232; People v. Daniels, supra, 71 Cal.2d at p. 1139.) This has been referred
to as the “two-part Daniels . . . test.” (People v. Rayford (1994) 9 Cal.4th 1, 20.)
“In determining „whether the movement is merely incidental to the [underlying]
crime . . . the jury considers the “scope and nature” of the movement. [Citation.] This
includes the actual distance a victim is moved. However, we have observed that there is
no minimum number of feet a defendant must move a victim in order to satisfy the first
prong.‟ [Citations.]” (People v. Martinez, supra, 20 Cal.4th at p. 233, citing People v.
Rayford, supra, 9 Cal.4th at p. 12 and People v. Daniels, supra, 71 Cal.2d at p. 1128.)
“ „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, the danger inherent in a victim‟s foreseeable attempts
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 was not increased. [Citations.]‟ [Citations.]” (People v.
Martinez, supra, 20 Cal.4th at p. 233.)
In Daniels, the defendants were alleged to have robbed and raped three victims in
their homes, moving the victims from room to room 18 feet, 5 to 6 feet, and 30 feet,
respectively. Daniels ruled such brief movements were merely incidental to the
associated offenses. (People v. Daniels, supra, 71 Cal.2d at p. 1139.) Daniels held
section 209 defined aggravated kidnapping “to exclude from its reach not only „standstill‟
robberies [citation] but also 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. [Citations.]”
(People v. Daniels, supra, at p. 1139.) Daniels observed that, “when in the course of the
robbery a defendant does no more than move his victim around inside the premises in
which he finds him – whether it be a residence, as here, or a place of business or other
enclosure – his conduct generally will not be deemed to constitute the offense proscribed
by section 209.” (Id. at p. 1140.)
Numerous cases illustrate these principles. (See, e.g., People v. Sheldon (1989) 48
Cal.3d 935, 952-953 [movement of victim from attached garage to various rooms within
the house was incidental to robbery]; People v. Morrison (1971) 4 Cal.3d 442, 443
[movement up and down stairs and into various rooms of residence incidental to
robbery]; People v. Smith (1971) 4 Cal.3d 426, 427 [movement of a hotel clerk about an
office and then to a second floor room insufficient to sustain a conviction for kidnapping
for the purpose of robbery]; People v. Killean (1971) 4 Cal.3d 423, 424 [movement of
victims across apartment threshold and through several rooms looking for valuables was
incidental to robbery]; People v. Adame (1971) 4 Cal.3d 417 [movement of supermarket
employees from check stand and manager‟s office to the safe was incidental to robbery];
People v. Mutch (1971) 4 Cal.3d 389, 397-399 [movement of 30 to 40 feet in a business
establishment from one room to another room where the safe was located was incidental
to robbery]; People v. Williams (1970) 2 Cal.3d 894, 902-904 [movement of gas station
attendant from cash register to locked bathroom and then around premises was incidental
to the robbery]; People v. John (1983) 149 Cal.App.3d 798, 805 [movement of 465 feet
inside “interconnected living quarters shared by [victim] and his parents” was incidental
c. Application here.
The bank in question occupies a retail space 35 feet wide and 70 feet deep.4 The
bank is on one level with approximately two-thirds of the floor space open to the public.
The rear 12 feet of the bank are devoted to restrooms, a break room and the vault room,
4 This court, on its own motion, has ordered the trial exhibits transmitted from the
superior court for our review. People‟s exhibit No. 1 is a diagram of the layout of the
all connected by a common hallway that runs from one side of the bank to the other and
out the back door on the rear wall. Reif‟s office is on the right hand side of the bank at
the rear of the public area. The vault room is directly across the bank from Reif‟s office
and behind the teller area. To enter the vault room, one must first enter the common
hallway and go to the second door on the left, the first door being the entrance to the
With respect to asportation, Reynoso testified she moved approximately 15 feet
from the teller area to the vault room. The parties note Reynoso moved a total distance of
45 feet because Reynoso had to return to the teller area to get a key needed to open the
vault. However, Reynoso moved only 15 feet in absolute terms, traversing that distance
Reif testified she moved a total of approximately 15 feet. However, based on the
diagram of the bank, it appears Reif underestimated the distance she traveled from her
office to the vault room by about 10 feet. Reif‟s testimony indicates she moved
essentially from one side of the bank to the other, which appears to be a distance of at
least 25 feet.
These discrepancies in the distance each victim moved do not alter our analysis.
Assuming Reynoso moved 45 feet and Reif moved 35 feet, from one wall to the other,
the movement was insufficient to support a conviction of aggravated kidnapping.
We reach this conclusion because the movement occurred entirely within the
premises of the bank and each victim moved the shortest distance between their original
location and the vault room. Thus, there was no excess or gratuitous movement of the
victims over and above that necessary to obtain the money in the vault. Also, given that
the cooperation of two bank employees was required to open the vault, the movement of
both Reif and Reynoso was necessary to complete the robbery. After appellants took the
money from the vault, they left quickly and without incident.
On these facts, it must be concluded the brief movement of Reif and Reynoso to
the bank‟s vault room was incidental to the robbery within the meaning of Daniels and
thus was insufficient to support a conviction of kidnapping for the purpose of robbery.
In denying a motion to dismiss at the close of the People‟s evidence, the trial court
distinguished Daniels on the ground there appeared “to be an obvious difference between
moving [someone] around in a home versus moving [a victim] around in a bank, which
has public areas and private areas and super private areas like the safe area, which is
obviously meant to be an area as far removed from the public as possible . . . .” The trial
court indicated its research had not disclosed any case that applied Daniels to movement
of a victim to a vault room during a bank robbery.
The trial court noted Reynoso and Reif were moved from a public area to an area
of “total isolation” in the vault room “away from other employees and customers who
might . . . have rendered assistance and prevented further crimes being committed . . . .”
The trial court concluded the question of whether the distance moved by the victims was
sufficient to constitute aggravated kidnapping was for the jury to decide and denied the
request to dismiss the counts.
However, the movement in this case must be seen as equivalent to the movement
of victims to the location of safes in offices or locations out of public view in other types
of businesses. (See, e.g., People v. Adame, supra, 4 Cal.3d at p. 418 [movement of
supermarket employees to the safe]; People v. Mutch, supra, 4 Cal.3d at pp. 397-399
[movement to safe]; People v. Williams, supra, 2 Cal.3d at pp. 902-904 [movement
around gas station premises including to a locked bathroom].)
The rule to be derived from these cases is that robbery of a business owner or
employee includes the risk of movement of the victim to the location of the valuables
owned by the business that are held on the business premises. Many retail businesses
hold large amounts of cash or other valuable personal property on the business premises,
frequently in a secure area away from public view, often in a safe or a vault. No
principled distinction can be made between those businesses and the bank in question
here. The fact thresholds within the business are crossed cannot elevate robbery to
aggravated kidnapping, given that all of the movement occurred within close proximity to
where the robbery commenced and the only thresholds crossed were those that separated
appellants from the bank‟s property.
The trial court erred in favor of caution by permitting the aggravated kidnapping
counts to go to the jury. However, notwithstanding the jury‟s verdicts on these counts,
the evidence does not support them. The applicable precedents reveal that brief
movement of a robbery victim within business premises does not qualify as aggravated
d. The People’s argument to the contrary is not persuasive.
The People adopt the trial court‟s view and argue the movement of Reif and
Reynoso from an area open to public view to the vault room, an area that was more
isolated and less accessible, substantially changed their environment and increased the
risk of harm over and above that inherent in robbery, decreased the likelihood of
detection and enhanced the opportunity for appellants to commit additional crimes.
(People v. Martinez, supra, 20 Cal.4th at p. 233.) Essentially, they assert these factors
overcome the apparent application of Daniels, even where the movement is brief because
distance alone is not determinative and the two parts of the Daniels test are interrelated.
(People v. Martinez, supra, at p. 233; People v. Rayford, supra, 9 Cal.4th at p. 12.)
However, any movement of a robbery victim increases the risk of harm to the
victim over and above that present in a standstill robbery. Where the movement of a
robbery victim is substantially similar to that found insufficient to support a conviction of
aggravated kidnapping in Daniels and its progeny, analysis of whether the movement of
the victim increased the risk of harm need not be undertaken. Indeed, a finding of
sufficient movement in this case would eliminate the first part of the test in favor of a test
based entirely on increased risk of harm. Clearly, that is not the law.
The discussion in Martinez illustrates this point. Martinez held the asportation
standard applicable to simple kidnapping, movement of the victim that is substantial in
character, applied to the offense of kidnapping a victim under 14 years of age in violation
of section 208, subdivision (b). Martinez discussed asportation required for simple
kidnapping at length, eventually distinguishing it from that required for aggravated
kidnapping. Martinez noted increased risk of harm was not needed for simple kidnapping
but held that the trier of fact may consider more than “actual distance” in determining
whether the movement of the victim was “ „substantial in character‟ ” as required for
simple kidnapping. (People v. Martinez, supra, 20 Cal.4th at p. 235.) Martinez affirmed
the “historically recognized” rule that “for both aggravated and simple kidnapping,
limiting a trier of fact‟s consideration to a particular distance is rigid and arbitrary, and
ultimately unworkable.” (Id at p. 236.)
Martinez observed the “two prongs of aggravated kidnapping are not distinct, but
interrelated, because a trier of fact cannot consider the significance of the victim‟s
changed environment without also considering whether that change resulted in an
increase in the risk of harm to the victim.” Thus, in determining whether movement of a
victim is “ „substantial in character‟ ” the jury may consider the “ „scope and nature‟ of
the movement or changed environment, and any increased risk of harm.” (People v.
Martinez, supra, 20 Cal.4th at p. 236.)
Martinez continued: “At the same time, we emphasize that contextual factors,
whether singly or in combination, will not suffice to establish asportation if the
movement is only a very short distance. [¶] In addition, in a case involving an associated
crime, the jury should be instructed to consider whether the distance a victim was moved
was incidental to the commission of that crime in determining the movement‟s
substantiality. . . .” (People v. Martinez, supra, 20 Cal.4th at p. 237.)
The jury‟s ability to consider evidence related to the increased risk of harm
required for aggravated kidnapping presupposes the sufficiency of the evidence to
support the conviction. However, as implied by the Martinez discussion, where Daniels
applies, the evidence is insufficient to support a conviction of aggravated kidnapping as a
matter of law and thus there is nothing for the jury to consider.
e. The rape cases cited by the People are distinguishable.
The People also rely on People v. Salazar (1995) 33 Cal.App.4th 341, 347-348
and People v. Shadden (2001) 93 Cal.App.4th 164, 169-170, cases involving rape and
attempted rape, respectively, that have adopted the view of the Daniels test they espouse
here, namely, that a substantial change in environment constitutes sufficient asportation
even where the movement might otherwise have been incidental to the underlying
In Salazar, supra, the victim was dragged 29 feet from a motel hallway into a
motel bathroom. Salazar held the jury “could find the movement crossed significant
boundaries (from the public walkway into the motel room bathroom) and was not a
necessary or a natural part of committing the rape.” (People v. Salazar, supra, 33
Cal.App.4th at p. 347.) In the course of its discussion, Salazar distinguished aggravated
kidnapping for rape from aggravated kidnapping for robbery and noted that although rape
may be committed without movement of the victim, “the commission of a robbery may
frequently require that a victim be moved to the property which is the object of the
robbery . . . .” (Id. at p. 348, fn. 8.)
In People v. Shadden, supra, 93 Cal.App.4th 164, the defendant moved a video
store owner nine feet into a small back room of the store where he attempted to rape her.
Shadden, citing People v. Salazar, supra, 33 Cal.App.4th at page 348, footnote 8,
observed that rape does not necessarily require movement and concluded the movement
of the victim did not have to be “great in distance” because it “changed [the victim‟s]
environment.” (People v. Shadden, supra, at p. 169.)
Salazar and Shadden both rely on the proposition that rape is different than
robbery for the purposes of aggravated kidnapping. Because this case involves robbery,
Salazar and Shadden are distinguishable.
A similar conclusion was reached in People v. Hoard (2002) 103 Cal.App.4th 599,
607. In Hoard, the defendant moved two female employees of a jewelry store about 50
feet to the office at the back of the store where he bound and gagged the employees, then
proceeded to remove jewelry from the display cases. Hoard held the “movement of
the two women served only to facilitate the crime with no other apparent purpose.”
(Id. at p. 607.)
The People counter that movement of Reif and Reynoso was not necessary to
commit robbery because appellants robbed Reynoso and Maudlin in the teller area before
they moved Reif and Reynoso to the vault room.
However, the primary object of a bank robbery is to obtain money from the vault.
The fact appellants also committed a “standstill” robbery of Reynoso and Maudlin in the
teller area does not mean the movement of Reif and Reynoso to the bank vault
constituted aggravated kidnapping. As in Daniels, appellants “had no interest in
forcing their victims to move just for the sake of moving; their intent was to commit
robberies . . . , and the brief movements which they compelled their victims to
perform were solely to facilitate such crimes. It follows, a fortiori, that those
movements were „incidental to‟ the robberies . . . .” (People v. Daniels, supra, 71 Cal.2d
at pp. 1130-1131.)
For all the foregoing reasons, we conclude the convictions of kidnapping for the
purpose of robbery in count 1 and count 17 must be reversed. We therefore need not
address appellants‟ further claims the trial court should have instructed the jury on false
imprisonment as a lesser offense included within kidnapping for the purpose of robbery
or the assertion defense counsel rendered ineffective assistance in failing to request
instruction on false imprisonment.
[[Begin nonpublished portion]]
[[2. The record contains sufficient evidence of personal use of a firearm.
Appellants contend the evidence is insufficient to demonstrate the bandanna-
covered object carried by Mack was a firearm. Thus, the conviction of assault with a
firearm committed against Maudlin and the true findings on all firearm enhancements
based on the use of the bandanna-covered object must be reversed. Appellants argue
neither Reynoso nor Maudlin saw any part of the bandanna-covered object, neither
described the object placed against them as cylindrical and Maudlin testified he was
“not going to say that‟s a gun because I don‟t know.” Appellants note Mack never
threatened to kill or shoot anyone, never said he had a gun and made no move toward
readying the object for firing such as cocking a hammer or pulling a slide. Thus, the
bandanna-covered object might have been an object that resembled a handgun.
Appellants conclude this evidence is insufficient to support the true finding on the
personal use enhancements or the conviction of assault with a firearm.
We disagree. “[A] firearm is displayed when, by sensory perception, the victim is
made aware of its presence. Once displayed in such fashion, the threat of use sufficient
to produce fear of harm becomes a [proscribed] use of that firearm . . . .” (People v.
Jacobs (1987) 193 Cal.App.3d 375, 381; People v. Granado (1996) 49 Cal.App.4th 317,
Here, Maudlin believed the bandanna-covered object was a handgun because it
was “shaped like a gun,” Mack held it like a gun and the bandanna “hung” on the object
as it would on a gun. Maudlin was struck in the face with the object and testified it felt
hard like metal and the blow left a mark on his face. Mack also placed the object against
the back of Maudlin‟s head when Mack demanded money.
Reynoso testified she thought the bandanna-covered object was a handgun because
Mack used the object like it was a handgun by pointing it at both Reynoso and Maudlin
as they unlocked the cash drawers. Also, the object felt hard when Mack placed it against
Reynoso‟s chest and ordered her to the floor of vault room.
Although Mack did not expressly threaten to shoot or kill anyone, he repeatedly
pointed the object at the victims and pressed it against them. These acts constituted
implied threats to shoot the victims if they failed to comply with his demands. Based on
this evidence, a rational fact finder could infer the bandanna-covered object was a
handgun. (People v. Dominguez (1995) 38 Cal.App.4th 410, 422 [firearm use properly
found where the defendant placed a cold steel cylindrical object against the victim‟s neck
and threatened to kill the victim unless the victim surrendered property].)
The fact neither victim testified the object in the blue bandanna felt cylindrical
does not require a different result, as appellants appear to argue. Not all handguns have
cylindrical barrels. Maudlin and Reynoso both testified they believed the object was a
handgun based on its appearance, the manner in which Mack used the object to ensure
compliance with his demands and based on the way the object felt when it touched them.
This evidence is sufficient to support the firearm use enhancements and the conviction of
assault with a firearm.
3. Sufficient evidence supports the criminal street gang enhancements.
Appellants contend the evidence was insufficient to support the conclusion the
charged offenses were committed “for the benefit of, at the direction of, or in association
with any criminal street gang” as required by section 186.22, subdivision (b)(1). Before
addressing this contention, we summarize the gang evidence presented at trial.
a. Gang evidence.
Los Angeles Police Officer Mark Arenas, a gang expert, testified Washington and
Mack were members of the same subset of a criminal street gang that had 190
documented members. Members of the gang referred to each other as “cuz” and used
blue as their color, often wearing blue bandannas. Gangs earn money through the sale of
narcotics and the commission of violent crimes such as robberies. Gangs use the
proceeds of their crimes to purchase narcotics or guns. Arenas opined the bank robbery
in this case was committed to benefit or promote appellants‟ gang. The “takeover” style
of robbery increases the public‟s fear of the gang and adds to the gang‟s prestige within
the gang community.
In addition to the expert testimony, Maudlin testified the robbers acted like gang
members and Mack repeatedly addressed Maudlin as “cuz.” Also, one of the females in
the Via del Rio home testified Mack and another member of appellants‟ gang lived at the
Via Del Rio residence and other members of the gang “hung out” there. Darnetta Wheat
testified her brother is Mack‟s friend and a member of the same gang. A photograph
found at the Olive Drive apartment depicted Washington and other individuals making
gang hand signs. The cash found in the Via Del Rio residence was in three different
locations, stuffed inside a sofa cushion, under a bed in the master bedroom and in a
shoebox inside a pillowcase.
b. Appellants’ contentions.
Appellants argue the expert‟s opinion that appellants would gain respect by
robbing the bank constitutes speculation about their state of mind. Appellants claim the
expert‟s opinion is not well founded because use of the word “cuz” is not limited to gang
members and appellants did nothing to indicate their gang should be given credit for the
robbery. Specifically, the robbers did not refer to their gang, make gang signs or flaunt
their gang membership. Appellants conclude that because the evidence showed they
acted to advance only their own personal interests, the true findings on the gang
enhancements must be reversed. (See People v. Loeun (1997) 17 Cal.4th 1, 11; People v.
Gardeley (1996) 14 Cal.4th 605, 623.)
Appellants‟ attack on the sufficiency of the expert‟s opinion fails to acknowledge
that People v. Gardeley, supra, 14 Cal.4th at pp. 619-620, held similar testimony was a
sufficient basis upon which a jury could conclude the charged offenses had been
committed for the benefit of a criminal street gang. Indeed, it is now well settled that the
prosecution properly may rely on expert testimony to establish the required elements of a
criminal street gang enhancement. (People v. Sengpadychith (2001) 26 Cal.4th 316,
322.) Also, a gang expert may testify concerning whether the defendant acted for the
benefit of a gang, even though it is an ultimate factual issue for the jury to decide,
because it is a matter that is beyond the common experience of the jury. (People v.
Valdez (1997) 58 Cal.App.4th 494, 507-509.)
Thus, appellants‟ attack on the expert‟s opinion is plainly without merit.
Also, the evidence abundantly supported the criminal street gang enhancement.
Washington and Mack were members of the same subset of a gang that claims blue as its
color and whose members refer to each other as “cuz.” Appellants took the majority of
the proceeds of the robbery to the Via del Rio residence where Mack and another gang
member lived and where gang members “hung out.” Significantly, the money was
concealed in three locations in the residence. This demonstrated a sharing of the wealth
that likely would not have been present had appellants acted purely for personal gain.
Moreover, Reynoso and Maudlin both testified Mack acted like a gang member
during the robbery. Reynoso testified Mack walked toward the teller counter with “that
gangster limp.” Maudlin testified he had the impression the robbers were gang members
based on the blue bandannas and the way Mack used the word “cuz” as a “gang banging
word.” Maudlin also testified the way the robbers “came at” him and their manner of
speech led him to believe they were gang members. Further, the modus operandi of the
crime, a take over style robbery committed in a crowded bank at opening, suggested the
robbers were trading on the public‟s fear of gang members and intended to enhance that
fear to facilitate future crimes.
In sum, the evidence demonstrated the robbery promoted a criminal street gang.
The fact that more evidence of gang involvement may have been presented in other cases
(e.g., People v. Olguin (1994) 31 Cal.App.4th 1355, 1382-1383), does not mean the
evidence in this case was insufficient.
3. Sentencing contentions.
a. Criminal street gang enhancements apply with respect to each count.
Appellants contend a criminal street gang enhancement is akin to a status
enhancement, which can be applied only once (People v. Tassell (1984) 36 Cal.3d 77,
90), or a recidivism enhancement, which can be imposed only once per information
(People v. McKee (1995) 36 Cal.App.4th 540, 547).
Appellants are wrong. Criminal street gang enhancements relate to the conduct
underlying the charged offense and apply on a count by count basis. (See, e.g., People v.
Atkins (1997) 56 Cal.App.4th 331, 339.) Because the jury found appellants committed
each separate count for the benefit of a criminal street gang, the true finding as to each
count was proper. The trial court avoided any double punishment concerns by staying all
but one of the 10-year gang enhancements pursuant to section 654.
b. The trial court did not impose multiple criminal street gang enhancements
with respect to any single count.
Washington argues that because the trial court imposed a 15-year minimum term
before parole eligibility under section 186.22, subdivision (b)(5), with respect to the
convictions of kidnapping for the purpose of robbery, it could not also impose an
additional 10-year enhancement on one of the robbery counts. (People v. Ortiz (1997) 57
Cal.App.4th 480, 485-486.)
Given that the convictions of kidnapping for the purpose of robbery must be
reversed, the question is moot.
c. The stayed restitution fine.
The trial court stayed a restitution fine of $1,000. However, the abstract of
judgment does not reflect the stay. Appellants argue it must be amended to do so.
The People concede the point. Although their concession appears well taken, the
matter must be remanded for resentencing, which will result in a new abstract of
judgment. Thus, there is no need to order the requested correction at this time.]]
[[End nonpublished portion]]
The convictions of kidnapping for the purpose of robbery in counts 1 and 17
are reversed as to both appellants. In all other respects, the judgments are affirmed.
As to each appellant, the matter is remanded for resentencing.
CERTIFIED FOR PARTIAL PUBLICATION
KLEIN, P. J.