Filed 12/30/20 P. v. Lewis CA2/5

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                         SECOND APPELLATE DISTRICT

                                        DIVISION FIVE

 THE PEOPLE,                                                          B297167

           Plaintiff and Respondent,                                  (Los Angeles County
                                                                      Super. Ct. No. PA089846)
           v.

 CARL LEWIS et al.,

           Defendants and Appellants.


       APPEAL from a judgment of the Superior Court of Los
Angeles County, Cynthia L. Ulfig, Judge. Affirmed as modified
with directions as to defendant Lewis; remanded for resentencing
as to defendant Ford.
       James M. Crawford, under appointment by the Court of
Appeal, for Defendant and Appellant Carl Lewis.
       Cynthia L. Barnes for Defendant and Appellant Kewain
Ford.
       Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Steven D. Matthews and J. Michael
Lehmann, Deputy Attorneys General, for Plaintiff and
Respondent.

                    __________________________

       Defendants and appellants Carl Lewis and Kewain Ford
appeal their convictions for robbery and related offenses arising
from two robberies at Walgreens pharmacies. Defendants raise
three issues: (1) insufficient evidence that Lewis kidnapped one
of the pharmacists (specifically, the asportation element);
(2) insufficient evidence of the gang enhancement; and (3) error
in instructing with CALCRIM No. 361, on a defendant’s failure to
explain or deny adverse testimony. We asked the parties to
submit letter briefing on two additional issues: (4) whether part
of each of defendants’ sentences must be stayed pursuant to
Penal Code section 654; and (5) whether certain firearm and gang
enhancements imposed and stayed on Ford’s false imprisonment
counts must be stricken or modified.1 We modify Lewis’s
sentence, remand for resentencing Ford, and otherwise affirm.
       FACTUAL AND PROCEDURAL BACKGROUND
1.     The Offenses
       On Halloween night 2017, defendants – both members of
the Pacoima Piru Bloods gang – intended to rob a Walgreens
pharmacy to obtain Oxycodone and other prescription drugs for
personal use and resale on the street. Although the first robbery
was successful, defendants discovered they had obtained the



1       All undesignated statutory references are to the Penal
Code.



                                  2
wrong drugs, so they robbed a second Walgreens that night.
Defendants were arrested fleeing the scene of the second robbery.
       A.    The First Robbery – Sherman Way
       The first robbery was committed at the Sherman Way
Walgreens. Lewis wore a “Scream” Halloween costume; Ford
wore a “Scream” mask without the full robe.2 First Ford, then
Lewis, leapt over the pharmacy counter at the Walgreens. Ford
flashed a gun at the pharmacist, T.K. Lewis asked T.K. where
the “good stuff” was kept; T.K. rightly inferred that the men
wanted narcotics.
       Walgreens pharmacies keep their narcotics in a safe in the
back. The safe has four quadrants; each quadrant requires a key,
but one quadrant has a time delay on the lock for extra security.
The narcotics which are highly abused and highly addictive – and
therefore, commonly stolen – are kept in the time-delayed
quadrant in order to deter theft. When Lewis asked for the “good
stuff,” T.K. walked back to the safe, followed by Lewis. He told
her to open the safe. T.K. immediately opened one quadrant of
the safe – not the time-delayed quadrant containing the
narcotics. Lewis swept the medications off the safe shelves into
his bag. Both defendants fled.3
       After they drove away from the Walgreens, Lewis pulled
the car over to review their take. He was disheartened to learn
that it was all useless medication, “Adderall, Ritalin, nothing
basically that you can get high off of or sell.” Defendants chose to


2     Lewis testified that he had shoplifted both costumes from
the 99 Cents Store earlier that day.

3     In the first robbery, defendants hired a lookout who Lewis
said was not a gang member. He also fled.



                                 3
commit a second robbery. Lewis dumped the drugs, and the
“Scream” costumes, in the trash.
       B.    The Second Robbery - Woodman
       The second robbery took place at the Woodman Avenue
Walgreens. Defendants’ tactics were virtually identical to that of
the first robbery. Wearing Halloween masks, the robbers entered
the Walgreens. Ford and Lewis jumped over different counters to
enter the pharmacy from both sides. When customers waiting
outside the pharmacy saw this, they fled, leaving the area outside
the pharmacy deserted. Ford flashed a gun. Lewis demanded
Oxycodone from a pharmacist named T.L. T.L. felt an object
touch her back; she thought it was a gun, although the jury found
it was not. Lewis walked T.L. toward the drug safe. T.L.
estimated the distance to be 15 to 20 feet; video shows Lewis
walking T.L. past at least five pharmacy aisles. T.L. put her key
in the time-delayed lock, which started counting up to three
minutes. T.L. explained to Lewis that they had to wait for the
three minutes before the safe would open. Lewis kept telling her
to hurry up and open the safe; T.L. said she could do nothing
until the clock ran.
       While Lewis was with T.L. at the safe, Ford gathered the
other pharmacy employees to another part of the pharmacy, and
directed them to look away. Ford stood for a time with T.L. and
Lewis at the safe; then he leapt back over the counter to keep
watch – he could see T.L. and the other employees from this
location, and also watch the area around the pharmacy to see if
anyone was coming to assist the victims. Pharmacist T.L. was
isolated at the safe; she could not see her fellow employees and
they could not see her. Nor could she see out the consultation
window into the rest of the Walgreens. To the extent she could




                                4
lean back to see the consultation window, she saw only Ford
standing just beyond it, saying to hurry up. T.L. did not consider
escaping; she thought it too dangerous, so she just kept her hands
up and waited for the robbery to be over.
       After the three minutes elapsed, T.L. had to use her key a
second time to open the safe. Lewis grabbed everything he could
and defendants sprinted away.
       C.     The Arrest
       It is not clear who first alerted police to the second robbery
at the Woodman Walgreens, but the three-minute time-delay on
the safe may have given the authorities the head start they
needed. By the time a police car arrived on the scene, a police
helicopter was already overhead, and passersby directed police in
the direction of defendants’ fleeing vehicle. After a brief pursuit,
defendants exited their car and attempted to disappear into a
residential neighborhood where children were trick-or-treating.
Both defendants were captured on foot. As Ford was arrested, he
dropped the mask he had used in the Woodman robbery. The car
defendants had used was registered to Lewis. Lewis’s mask and
the stolen drugs from the Woodman robbery were found in the
car, as well as Lewis’s cell phone. The street value of the stolen
drugs, which included over 4000 pills, was estimated to be
$40,000-$50,000.
       D.     The Planned Drug Sales Would Have Benefitted
              the Gang
       It was undisputed that the purpose of the robberies was to
obtain drugs for sale. One of the issues at trial was whether
those anticipated drug sales would have benefitted defendants’
gang or whether, as Lewis attempted to argue, they were simply
for his own economic gain.




                                 5
       Lewis testified at trial. He admitted that he had a history
of drug sales. Indeed, drug sales were his source of income for
most of his adult life. Lewis also admitted that he had been
jumped into the Pacoima Piru Bloods at age 18 and had a gang
moniker. Although Lewis conceded that he was never jumped
out, he claimed that he had left the gang at age 36, some 12 years
earlier, and had simply stopped associating with the gang. Lewis
testified that none of his drug sales were ever part of his gang
membership.
       LAPD Officer Jeff Rood, the prosecution’s gang expert on
the Pacoima Piru Bloods, testified that one of the gang’s primary
activities is the sale of narcotics. He explained that robberies and
drug sales support the gang financially, by bringing in money,
which can be used to buy more drugs or firearms. Drug sales also
fund the gang members’ lives, so that they need not have regular
jobs. Officer Rood testified, in response to a hypothetical based
on the facts of this case, that the robberies were for the benefit of
the gang because gang members would get money from the
anticipated drug sales. He also believed the robberies would
have promoted the gang “as being the guys who have the best
narcotics on the street, the best narcotics that they can sell,
meaning prescription. They will get a lot more clients than just
clients of individuals who use just common street drugs.” In
response to a hypothetical positing that two Pacoima Piru
members robbed a pharmacy, got away with it, sold the drugs,
and made a profit they did not share with anyone else, Officer
Rood testified this would nonetheless benefit the gang because,
“[w]hen they sell the drugs, they are selling the drugs as Pacoima
Piru gang members, as drug dealers representing Pacoima Piru.
It allows the neighborhood and users, other gangs[,] to know that.




                                 6
[¶] The Pacoima Piru Bloods can get narcotics, whatever may be,
and sell it and get rid of it fast because they get the good stuff or
whatever it may be. Their goal is to get clients hooked, to get the
community hooked and get that community coming back, because
that is a consistent flow of money, like I said meth, heroin[],
prescription pills, opioids, stuff of that nature.”
       Officer Rood added that if someone sells drugs in a gang’s
territory, the gang must approve it and there has to be some
benefit to the gang for that to occur. If it is not approved by the
gang, there will be severe consequences, including the possibility
of death.
       As to whether Lewis had, in fact, stopped associating with
the gang, his cell phone included “selfie” photographs of himself
throwing gang signs commonly associated with the gang. On
October 1, 2017 – just a month before these robberies, Lewis was
in attendance at a softball game between the Pacoima Pirus and
another Blood set. At trial, Lewis admitted attending the game,
but explained that it was an anti-violence softball game; he
clarified that he had not stopped associating with his friends in
the gang, he simply was no longer participating in “violent
negativity actions.”
       As to whether Lewis sold drugs on behalf of the gang, his
phone included a text message exchange in which someone
commenced conversation with him by stating, “What up [P]iru?”
and Lewis responded. In the course of the conversation, the other
person asked Lewis about his ability to obtain drugs, to which
Lewis responded affirmatively.4 Lewis agreed that people still

4     Specifically, the person asked defendant, “Aye kan you still
get yo hands on dat black for $650[?]” The gang expert explained
that “black” referred to heroin, and the use of “k” for “c” (as in the



                                  7
know him by his gang moniker, and that they use gang “lingo”
with him, which he uses back to them. Although he claimed to
have left the gang, he did not make an effort to inform people of
his real name.
2.    The Charges
      The prosecution originally sought to proceed against
defendants for the robbery and aggravated kidnapping of both
pharmacists – T.K. and T.L. At the preliminary hearing, the
court concluded the evidence of movement was insufficient to
support aggravated kidnapping and reduced the charge to simple
kidnapping in both instances.
      Defendants were both charged by amended information
with the robbery (§ 211) and kidnapping (§ 207, subd. (a)) of both
T.K. and T.L. With respect to each offense, a firearm
enhancement (§ 12022.53, subd. (b)) and gang enhancement
(§ 186.22, subd. (b)(1)(C)) were also alleged with respect to each
defendant.
3.    The Verdicts
      The trial court asked the parties whether they wanted
instruction on any lesser included offenses. Ford requested
instruction on false imprisonment; Lewis did not want such
instruction. The trial court complied, instructing on the lesser of
felony false imprisonment only as to Ford.5

word “can”) is common for Piru members who avoided the letter
“c” as is “Crips.” Defendant responded to the text with a
negotiation: “750$.. and got some China White.” China White is
a designer form of synthetic heroin.

5     The jury was not instructed on accomplice liability. It was
instructed in the language of CALCRIM No. 203 to “separately
consider the evidence as it applies to each defendant.”



                                 8
       The jury returned the following verdicts: As to Ford, he
was found guilty of both robberies, with the firearm and gang
enhancements true. He was found not guilty of both
kidnappings, but guilty of both false imprisonments, again with
the firearm and gang enhancements true. As to Lewis, he was
found guilty of both robberies, with the gang enhancement, but
not the firearm enhancement, true. He was acquitted of
kidnapping T.K., but convicted of kidnapping T.L., with the gang
enhancement true.
4.     Sentencing
       Ford was sentenced to 25 years in prison, calculated as the
high term of 5 years for the first robbery, plus 10 years for the
firearm enhancement, plus 10 years for the gang enhancement.
Concurrent terms were imposed on the remaining counts;
enhancements on those counts were imposed and stayed.
       Lewis was sentenced to 26 years, 8 months in prison,
calculated as follows: For the T.L. kidnapping, the high term of 8
years, plus 10 years for the gang enhancement. For each of the
two robberies, a consecutive term of 4 years, four months,
calculated as one-third the midterm of 3 years, plus one-third the
enhancement term of 10 years.6




6      Although Lewis’s abstract of judgment mathematically
adds the consecutive terms in the total sentence, the box is
checked for these terms to be “concurrent.” As we modify Lewis’s
sentence and direct preparation of a new abstract, we also direct
the trial court to correct the abstract to reflect consecutive
sentences for Lewis.



                                9
                            DISCUSSION
1.     Sufficiency of the Evidence of Asportation of T.L.
       Lewis argues there is insufficient evidence that he
kidnapped T.L., specifically, as to the element of asportation.
       When a defendant questions the sufficiency of the evidence,
we are required “to review the record ‘ “ ‘in the light most
favorable to the prosecution to determine whether it contains
evidence that is reasonable, credible, and of solid value, from
which a rational trier of fact could find the defendant guilty
beyond a reasonable doubt.’ ” [Citations.]’ [Citation.]” (People v.
Arias (2011) 

193 Cal. App. 4th 1428

, 1434.)
       There is a distinction between the asportation requirement
for aggravated kidnapping (e.g., kidnapping for the purpose of
robbery under section 209, subdivision (b)) and the asportation
requirement for simple kidnapping, even when the simple
kidnapping is in the course of a robbery.
       Specifically, the asportation element for aggravated
kidnapping requires movement of the victim that both (1) is not
merely incidental to the robbery; and (2) increases the risk of
harm to the victim over and above the harm necessarily present
in the robbery. (People v. Williams (2017) 

7 Cal. App. 5th 644

, 667
(Williams); People v. Shadden (2001) 

93 Cal. App. 4th 164

, 168
[similar test for kidnapping for rape].)
       The asportation element of simple kidnapping requires only
that the movement be substantial in character. However, there
is no specific minimum distance which must be met for the
movement to be substantial. (People v. Singh (2019)

42 Cal. App. 5th 175

, 187–188 [movement of a victim a mere ten
feet is substantial, when the victim is a helpless child and the
movement takes the child away from his mother who is standing




                                10
in a bus ready to depart].) In determining whether the
movement is substantial, the trier of fact may consider more than
actual distance. (People v. Martinez (1999) 

20 Cal. 4th 225

, 235.)
As was the case here, the jury is to be instructed to consider the
totality of the circumstances in determining whether the
movement is substantial. (Id. at p. 237.) Some of the factors a
jury may consider, in addition to the actual distance, are whether
the movement increased the risk of harm above that which
existed prior to the asportation, decreased the likelihood of
detection, and increased the danger inherent in a victim’s
foreseeable attempts to escape and the attacker’s enhanced
opportunity to commit additional crimes. (Ibid.) “[I]n 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.” (Ibid.) We emphasize our Supreme Court’s
language here: kidnapping for robbery requires that the distance
moved not be merely incidental to the commission of the robbery;
but for simple kidnapping, whether the movement is merely
incidental to the robbery is only one of several factors the jury is
to consider in its overall determination of whether the movement
is substantial.
       Here, considering the totality of the circumstances, the jury
found the movement of T.L. substantial. This conclusion is
supported by sufficient evidence. Lewis moved T.L. 15 to 20 feet,
from the front of the pharmacy where she was with her fellow
employees, to the back where she was isolated from view – able to
see only Lewis and his armed accomplice. The defendants kept
her separated from the others at this spot for three minutes while
waiting for the safe to open, during which time both defendants




                                11
urged T.L. to hurry – a process over which she had no control.
This increased the risk of harm to T.L. and the defendants’
opportunity to commit additional crimes. There was a risk that
the defendants would take out their frustrations at the time
delay on T.L., and there was no one to whom she could turn for
assistance. (See 

Arias, supra

, 193 Cal.App.4th at pp. 1430, 1435
[simple kidnapping asportation established when defendant
forced the victim to walk 15 feet, at gunpoint, from outside to an
indoor location, increasing risk].)
       Lewis disagrees, relying primarily on authority holding
that robbery is not elevated to aggravated kidnapping merely
because the robber moves the victim inside the premises to the
location where the valuables are held. 

(Williams, supra

,
7 Cal.App.5th at p. 669.) But this is a case of simple kidnapping,
in which the totality of the circumstances analysis applies. In
any event, we find the additional circumstance of keeping T.L.
trapped at the safe while waiting for the time-delay renders this
case distinguishable.7
2.     Sufficiency of the Evidence of the Gang Enhancement
       Both defendants argue the evidence is insufficient to
establish the gang enhancement. Specifically, they deny that
substantial evidence supported the finding that the crimes were
committed “for the benefit of, at the direction of, or in association

7     Lewis relies on 

Williams, supra

, 7 Cal.App.5th at p. 644 to
suggest that if the movement is only incidental to the robbery,
defendant cannot be convicted of simple kidnapping. To the
extent that is the holding in Williams, we respectfully disagree
with it. As for Lewis’s contention that, because Williams was a
Second District case, we are obligated to follow it, he is wrong.
(Gonzalez v. Lew (2018) 

20 Cal. App. 5th 155

, 166, fn. 7 [“[t]here is
no horizontal stare decisis in the California Court[s] of Appeal”].)



                                 12
with any criminal street gang, with the specific intent to promote,
further, or assist in any criminal conduct by gang members.”
(§ 186.22, subd. (b)(1).) Defendants argue that they committed
the robberies and kidnapping to obtain drugs for personal use
and personal sale – not in association with or to benefit the
gang.8
        There are two elements here. The first is that the offense
be committed “for the benefit of, at the direction of, or in
association with any criminal street gang.” The second is that
the offense be committed “with the specific intent to promote,
further, or assist in any criminal conduct by gang members.”
(§ 186.22, subd. (b)(1).) We address the two elements separately.
        A.    “For the benefit of, at the direction of, or in
               association with any criminal street gang”
        Before considering the evidence of the first element, we
have one preliminary observation. The association/direction/
benefit alternative is in the disjunctive. “The crucial element,
however, requires that the crime be committed (1) for the benefit
of, (2) at the direction of, or (3) in association with a gang.”
(People v. Morales (2003) 

112 Cal. App. 4th 1176

, 1198.) In People
v. Albillar (2010) 

51 Cal. 4th 47

, 59, our Supreme Court




8     Lewis specifically focuses his argument on the T.L.
kidnapping, suggesting that there was no evidence that the
kidnapping itself was gang-related. The evidence was that Lewis
kidnapped T.L. in order to obtain the narcotics from the safe. In
other words, when considering defendants’ purposes in
committing these offenses, their intent was the same for all of the
crimes.




                                13
considered the association and benefit alternatives separately, as
do we.9
       The prosecution gang expert, Officer Rood, was asked to
consider a lengthy hypothetical mirroring the facts of this case.
The prosecutor then asked if Officer Rood had an opinion
whether the crimes in the hypothetical were “for the benefit or in
association with the Pacoima Piru Bloods street gang.” The
officer’s initial answer addressed both alternatives. “The
association, meaning the multiple gang members committing
crimes together. The benefit is financially, they are going to
benefit from the theft of the narcotics in which they will be able
to sell that, turn around and get money to benefit the gang to buy
more narcotics and more weapons, to commit more crimes
against other gang members, community members, to continue to
instill fear upon the community in which they claim territory to.”
       We consider first whether substantial evidence supported
the “benefit of the gang” alternative. Defendant Lewis testified
at trial that he had a history of selling drugs but denied that his
sales were gang-related. Officer Rood saw the connection. Later
in his testimony, he said that the sale of drugs was one of the
Piru Bloods’s primary activities. Sales benefitted the gang
financially because they enabled the gang to buy weapons and
more drugs. Drug money funded the gang members’ lifestyles so
they had the freedom to commit other crimes. Officer Rood also
testified that other gang members would get money from
anticipated sales. Even if drug money were not shared with


9     The court’s discussion of the association element was at 51
Cal.4th at pages 60-63; the discussion of the benefit to the gang
was at pages 63-64. Neither the Supreme Court nor the parties
here discuss separately the “direction” alternative.



                                14
other gang members, the gang would benefit from the present
robberies because members would be known as “the guys who
have the best narcotics on the street, the best narcotics that they
can sell, meaning prescription.” Piru Bloods had “the good stuff,”
which distinguished Piru Bloods from other gangs that only sold
street drugs. The prescription drugs could be sold more quickly.
      According to Officer Rood, Lewis’s personal involvement in
drug sales that benefitted the gang could be seen in a series of
phone text messages to and from Lewis. In one text, someone
asked Lewis, “What’s up Piru?” and Lewis responded. The other
person then asked Lewis about his ability to obtain drugs. Lewis
responded affirmatively using a code adopted by the Piru Bloods
that had a derogatory reference to a rival gang.10 We conclude
substantial evidence supported the “for the benefit” alternative in
section 186.22, subdivision (b)(1).
      Because the “benefit” and “association” alternatives are in
the disjunctive, we briefly discuss the evidence that the robberies
were committed in association with other gang members. To
establish the association alternative, the defendants’ conduct
must “exceed[] that which was necessary to establish that the
offenses were committed in concert.” (People v. 

Albillar, supra

,
51 Cal.4th at p. 61.) Officer Rood acknowledged that not every
crime committed by multiple gang members is committed in
association with the gang. Here, there was evidence that Ford
and Lewis had a friendship and possibly were related, suggesting
the robberies were for personal gain.11 In contrast, Officer Rood


10    See footnote 3 above.

11    During his testimony, Lewis referred to Ford as “[m]y
crimie.”



                                15
testified: “If you are using more than one gang member you are
obviously using because you trust your fellow gang members
which is why you are committing the crime with them, not
choosing to do it by yourself or do it with just anyone. You have
chosen your fellow gang members because you trust them
because they are part of your neighborhood, they are part of
someone you know is down because they have earned their name
and moniker, they are willing to commit crimes to benefit the
gang.”
       Although we find this evidence is weaker than Officer
Rood’s testimony about these crimes benefitting the gang, the
totality of his testimony is substantial evidence of the
benefit/direction/association element of section 186.22,
subdivision (b)(1).
       B.     “With the specific intent to promote, further, or
              assist in any criminal conduct by gang
              members”
       We find the second element of section 186.22(b)(1) — “with
the specific intent to promote, further, or assist in any criminal
conduct by gang members” – was also supported by substantial
evidence. This element does not require evidence of a specific
intent to assist the gang, only the specific intent to promote
criminal conduct by gang members. In People v. 

Albillar, supra

,
51 Cal.4th at p. 68, the court held that “if substantial evidence
establishes that the defendant intended to and did commit the
charged felony with known members of a gang, the jury may
fairly infer that the defendant had the specific intent to promote,
further, or assist criminal conduct by those gang members.” The
same inference is more compelling in those situations, such as
this one, in which two gang members commit crimes not only in




                                16
association with, but also for the benefit, of the gang. We
conclude the same evidence that demonstrated the crimes
benefitted the gang also supported the intent to promote the
criminal conduct of gang members.12
3.     Any Error in Giving CALCRIM No. 361 Was Harmless
       After Lewis testified, the trial court instructed the jury in
the language of CALCRIM No. 361 as follows: “If the defendant
failed in his testimony to explain or deny evidence against him,
and if he could reasonably be expected to have done so based on
what he knew, you may consider his failure to explain or deny in
evaluating that evidence. Any such failure is not enough by itself
to prove guilt. [¶] The People must still prove the defendant
guilty beyond a reasonable doubt. If the defendant failed to
explain or deny, it is up to you to decide the meaning and
importance of that failure.”
       As the late Justice Donald Gates wrote of CALCRIM
No. 361’s predecessor, CALJIC No. 2.62, “We heartily agree that
in light of the hostile reception this instruction has received of

12     We find the present case is distinguishable from In re
Daniel C. (2011) 

195 Cal. App. 4th 1350

, on which Lewis relies. In
Daniel C., the defendant intended to shoplift a bottle of liquor,
but ended up committing a robbery when the store’s assistant
manager tried to stop him. (Id. at p. 1353.) Defendant had acted
alone, although his companions were waiting outside. (Ibid.) On
appeal, the court rejected the notion “that stealing a bottle of
liquor to drink with companions is, in itself, sufficient to support
a conclusion that the theft was intended to promote, further or
assist criminal conduct by gang members.” (Id. at p. 1364.) In
the present case, defendants were not acting alone to obtain
something for personal use; they were acting together to obtain
something for resale in the name of the gang and in furtherance
of the gang’s reputation in the community.



                                 17
late from legal logicians and semanticists [citations], it will
always be unwise of a trial court to include it among its general
instructions without prior inquiry of the parties concerning it. In
fact, today it should not even be requested by either side unless
there is some specific and significant defense omission that the
prosecution wishes to stress or the defense wishes to mitigate. In
the typical case it will add nothing of substance to the store of
knowledge possessed by a juror of average intelligence.
Furthermore, if its terms are adhered to, as presumably they will
be, its message will be essentially irrelevant in the absence of
some designated glaring hiatus in the defendant’s testimony. In
such an instance, of course, this lacuna will presumably be the
subject of debate and emphasis during the parties’ arguments to
the jury, with or without the neutral guidelines contained in this
recently disfavored instruction.” (People v. Haynes (1983)

148 Cal. App. 3d 1117

, 1119–1120.)
       Yet, the erroneous use of the predecessor instruction was
routinely found to be harmless, largely because the instruction
itself contains limiting language. (People v. Lamer (2003)

110 Cal. App. 4th 1463

, 1472.) It does not direct the jury to draw
an adverse inference; it expressly applies only if the jury finds a
failure to explain or deny evidence. It further cautions that
failure to explain or deny does not create a presumption of guilt
or otherwise relieve the prosecution of its burden. (Ibid.)
       We review claims of instructional error de novo. (People v.
Grandberry (2019) 

35 Cal. App. 5th 599

, 604.) The task of a
reviewing court examining a claim that CALCRIM No. 361 was
erroneously given is to ascertain if the defendant failed to explain
or deny any fact or evidence which was within the scope of
relevant cross-examination and was within the defendant’s




                                 18
knowledge which he did not explain or deny. (Id. at p. 606.) The
focus is not on what was adduced during cross-examination, but
on what could have been asked of the defendant in light of the
evidence presented in the prosecution’s case-in-chief and the
defendant’s own testimony. (Id. at p. 608.) If giving the
instruction was error, the harmlessness standard of People v.
Watson (1956) 

46 Cal. 2d 818

, 836, applies. We consider whether
it is reasonably probable that a result more favorable to the
defendant would have been reached in the absence of the error.
(People v. 

Lamer, supra

, 110 Cal.App.4th at pp. 1471–1472.)
        Here, at the jury instruction conference prior to Lewis’s
decision to testify, the court deferred a decision on CALCRIM
No. 361 until after Lewis made his decision. After Lewis
testified, however, there was no further discussion of whether
CALCRIM No. 361 would be given.
        We find it unnecessary to pore through the record for
testimony that Lewis did not explain or deny. Instead, for sake of
discussion, we will assume error and conclude it was harmless.
Lewis admitted committing the robberies, and his conduct during
the crimes was captured on video from the pharmacies. The jury
evaluated the videos and the testimony and reasonably concluded
that while Lewis kidnapped T.L. (at the second pharmacy) he did
not kidnap T.K. (at the first). As to Lewis’s gang involvement,
although he claimed to have left the gang, the undisputed
evidence was that he still associated with gang members, still
used his gang moniker, and still used gang language – even in
the course of conducting his drug dealing operations. While the
prosecutor rightly questioned the logic of Lewis’s testimony in
argument to the jury, the prosecution did not call attention to
this instruction or the inference it allowed. The jury was




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instructed in the language of CALCRIM No. 200 that some of the
instructions may not apply, and that it should only use those
instructions which apply based on the facts it finds. There is no
reasonable probability that the jury would have reached a
different verdict in the absence of this unemphasized instruction.
       Lewis’s contrary arguments do not persuade us: “The
logical inference from this instruction being included was that
Lewis was being either dishonest or evasive in trial, with the
result being that the jury did not believe Lewis’s claims that he
was committing the robberies to furnish his personal drug habit
and pay personal expenses.” Lewis’s suggestion that the mere
inclusion of the instruction informed the jury that he must have
been either dishonest or evasive goes against the express
language of both CALCRIM No. 200 and the instruction itself.
The instruction simply permits an adverse inference if the jury
finds the necessary prerequisite of a failure to explain or deny.
The jury disbelieved Lewis not because of the perhaps erroneous
inclusion of a facially inapplicable instruction, but because his
testimony was inherently not worthy of belief.
4.     Defendants’ Sentences Must Be Modified Under
       Section 654
       Section 654 prohibits multiple punishments for the same
act. Further, it bars multiple punishment for separate offenses
arising out of a single occurrence where all of the offenses were
incidental to one objective. 

(Williams, supra

, 7 Cal.App.5th at
p. 695.) We sought additional briefing on the application of
section 654 to this case. Defendants argued, the prosecution
concurred, and we agree to the following modifications:
       Lewis was sentenced to a principal term for the kidnapping
of T.L. (count 4), with a consecutive subordinate term for, among




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other things, the robbery of T.L. (count 3). Where the kidnapping
effectuates the robbery, the robbery sentence must be stayed
under section 654 pending completion of the sentence for
kidnapping the same victim. (See People v. Eddahbi (1988)

199 Cal. App. 3d 1135

, 1143.)
      Similarly, Ford was sentenced to a principal term for the
robbery of T.K. (count 1) with concurrent terms for the false
imprisonment of T.K. (count 2) and the robbery of T.L. and false
imprisonment of T.L. (counts 3 and 4). As the robbery and false
imprisonment of each victim were part of an indivisible course of
conduct committed pursuant to a single objective, the false
imprisonment terms must be stayed pending completion of the
sentences for the related robberies. (People v. 

Williams, supra

,
7 Cal.App.5th at p. 695.)
5.    Issues Related to Defendant Ford’s Sentence and
      Enhancements for False Imprisonment
      Ford received concurrent terms for the two counts of false
imprisonment, which, as discussed above, must be stayed. For
each false imprisonment count, a 10-year enhancement for
personal use of a firearm (§ 12022.53, subd. (b)) and an additional
10-year gang enhancement (§ 186.22, subd. (b)(1)(C)) were
imposed and stayed.
      As to the firearm enhancement, section 12022.53,
subdivision (b) provides a 10-year sentence enhancement for the
personal use of a firearm in the commission of a felony
enumerated in subdivision (a). While kidnapping and robbery
are so enumerated (§ 12022.53, subds. (a)(3), (a)(4)), false




                                21
imprisonment is not. The firearm enhancements on Ford’s two
false imprisonment counts must be stricken.
       The section 186.22, subdivision (b) gang enhancement
applies to any felony. However, it imposes a different term
depending on whether the offense is a felony, serious felony, or
violent felony. The trial court imposed and stayed 10 years,
which is the term for a violent felony. (§ 186.22, subd. (b)(1)(C).)
False imprisonment is not included in the list of violent felonies.
(§ 667.5, subd. (c).) The prosecution does not argue that the false
imprisonments in this case were serious felonies. The
appropriate term is therefore two, three, or four years, at the
court’s discretion. (§ 186.22, subd. (b)(1)(A).) We therefore
remand for the trial court to exercise its sentencing discretion on
this issue.




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                           DISPOSITION
      As to defendant Lewis, the judgment is modified as follows:
the consecutive sentence imposed on count 3, and its related gang
enhancement, shall be stayed pursuant to section 654. The trial
court is directed to prepare a new abstract of judgment reflecting
these changes and that Lewis’s sentence was consecutive, not
concurrent. The clerk shall forward the new abstract to the
Department of Corrections. As modified, the judgment is
affirmed.
      As to defendant Ford, the concurrent terms imposed on
counts 2 and 4 shall be stayed pursuant to section 654. The
firearm enhancements, on counts 2 and 4, on which sentence had
already been stayed, shall be stricken. The matter is remanded
for the trial court to exercise its discretion as to the term to be
imposed and stayed for the gang enhancement. The judgment is
otherwise affirmed.




                              RUBIN, P. J.
WE CONCUR:




            BAKER, J.




            KIM, J.




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