People v. Escobar

[480]Opinion

JOHNSON, J . Andrew Rudy Escobar appeals from the judgment entered following a jury trial that resulted in his conviction of kidnapping for the purpose of robbery and simple kidnapping (Pen. Code, §§ 209, subd. (b), 207, counts 1, 2), two counts of second degree robbery (Pen. Code, § 211, counts 3, 7), two counts of grand theft of an automobile (Pen. Code, § 487, former subd. 3, counts 4, 10), first degree burglary (Pen. Code, § 459, count 8), attempted first degree robbery (Pen. Code, §§664-211, count 9), each with the use of a firearm (Pen. Code, § 12022.5), and evading a police officer (Veh. Code, § 2800.2, count 11), and his plea of guilty to possessing a firearm by a previously convicted felon (Pen. Code, § 12021, count 13) and admission of one prior serious felony conviction (Pen. Code, § 667, subd. (a).)

He contends: “I. The evidence is insufficient to support appellant’s conviction of kidnapping for robbery in count 1. II. The trial court committed prejudicial error when it permitted the prosecutor to refer to the charged ‘kidnappings for robbery’ as ‘carjackings,’ when no such crime existed in California. III. Appellant’s convictions of counts 2, 3, 4, and 10 must be reversed. IV. The ‘high-term’ enhancements imposed for appellant’s ‘personal use of a gun’ in counts I and VIII must be stricken, as the court relied on improper factors in aggravation in selecting those upper terms.”

Viewed according to the customary standard of appellate review People v. Lewis (1990) 50 Cal.3d 262, 277 [266 Cal.Rptr. 834, 786 P.2d 892] (cf. People v. Ceja (1993) 4 Cal.4th 1134, 1138-1139 [17 Cal.Rptr.2d 375, 847 P.2d 55]), the offenses occurred in two episodes that occurred on the evening of February 17, 1993. At approximately 5:30 p.m. on that date, appellant and an accomplice accosted Raul Rodriguez (counts 1 to 4) at gunpoint in the parking lot of a Huntington Park bank as Rodriguez was alighting from a borrowed white pickup truck. Rodriguez reentered the truck when appellant told him to do so. Appellant and the accomplice also entered, one on either side of Rodriguez. Appellant gave his gun to the accomplice, then demanded Rodriguez’s money and wallet. After receiving the wallet and $250, appellant threatened to kill Rodriguez if he called the police, then drove off with Rodriguez and the accomplice. They drove for approximately five minutes, covering a distance of five blocks. Appellant released Rodriguez in a residential area and drove off in the truck, which was recovered the following day in Norwalk.