People v. Hutchinson

20 Cal.App.5th 539

229 Cal.Rptr.3d 136

The PEOPLE, Plaintiff and Respondent,

v.Louis James HUTCHINSON, Defendant and Appellant.

B279767

Court of Appeal, Second District, Division 1, California.

Filed February 15, 2018

Sunnie L. Daniels, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Shawn McGahey Webb, Supervising Deputy Attorney General, and Nima Razfar, Deputy Attorney General, for Plaintiff and Respondent.

JOHNSON, J.

A jury convicted Louis James Hutchinson (Hutchinson) of five counts of first degree residential robbery and five counts of home invasion robbery. Hutchinson contends that a 15-year-old girl inside the residence at the time of the robbery—the homeowners' daughter—could not be deemed a victim of the robbery because she did not actually or constructively possess any of the stolen property. We disagree. Hutchinson also contends that his convictions on counts 1 through 5 must be vacated. We agree. In all other respects, the judgment is affirmed.

BACKGROUND

I. Overview of Charges

Hutchinson and codefendants Kwan Smith (Smith) and Deavon Phillips (Phillips) were charged with five counts of first degree residential robbery ( Pen. Code,¹ § 211 ; counts 1–5) and five counts of home invasion robbery ( § 211 ; counts 6–10).² As to counts 6 through 10, the information alleged that Hutchinson, Smith and Phillips acted in concert and entered an inhabited dwelling house during the commission of the robbery. (§ 213, subd. (a)(1)(A).)

The information also alleged as to all counts that Hutchinson and Phillips personally used a Taser, (§ 12022, subd. (b)(1) ), as well as a firearm (§ 12022.53, subd. (b) ), and that a principal had been armed with a firearm (§ 12022, subd. (a)(1) ). The information also alleged that Hutchinson suffered a prior strike conviction (§§ 667, subds. (b)-(i); 1170.12, subds. (a)-(d) ), a prior serious felony conviction (§ 667, subd. (a)(1) ), and had served two prior prison terms (§ 667.5, subd. (b) ).

Before trial, Smith and Phillips pleaded no contest to the charged offenses and admitted the special allegations. Hutchinson proceeded to jury trial. The jury convicted Hutchinson on all counts and found true the allegation that a principal had been armed with a firearm. As to the allegation that Hutchinson had personally used a firearm during the offenses (§ 12022.53, subd. (b) ), the jury found it to be not true as to counts 4, 5, 9, and 10, and deadlocked on the other counts.³ The court declared a mistrial on the deadlocked allegations and granted the prosecution's subsequent request to dismiss them. Hutchinson admitted the prior conviction allegations.

The trial court sentenced Hutchinson to a total of 42 years, four months in state prison. The court used count 6 as the base term, imposed the upper term of nine years, doubled to 18 years for Hutchinson's prior strike conviction, plus a one-year term for the firearm enhancement (§ 12022, subd. (a)(1) ). As to each of counts 7 through 10, the trial court imposed a consecutive term of two years (one-third the middle term of six years), doubled to four years for the prior strike, plus four months for the firearm enhancement. The trial court imposed additional terms of five years for the prior serious felony and one year for the prior prison term. The trial court stayed the remaining counts and enhancements.

II. Prosecution Evidence

Daren Gaynair and his wife, Charlotte Jackson, lived in Rancho Palos Verdes with their children—daughters Daijavon (age 19), Dexenia (age 15), Dakota (age 3), and sons Drake and Dillon. Daren's mother, Shirley Sabido, and sister, Kim Gaynair, also lived at the residence. Daren owned a tax preparation and accounting business, where Daijavon also worked.

On December 11, 2015, at approximately 8:30 a.m., Daijavon dropped off her brothers at school and returned home. As Daijavon was about to leave again to drive her sister Dakota to school and then go to work, she did not lock the front door after entering the house. Daijavon went to the kitchen area with her parents and helped Daren put on his socks since he had a broken arm in a sling. Hutchinson, Smith, Phillips, and another man, then suddenly appeared inside the house. The Gaynairs did not know any of the men.

Hutchinson pointed a gun at the family and ordered them to "get the fuck down." Daren and Charlotte complied. Daijavon asked Hutchinson if he was joking. Hutchinson moved closer toward Daijavon and said, "Bitch, I said get down." Daijavon asked, "Are you serious?" Hutchinson then ordered one of the other men to "tase that bitch." The man proceeded to tase Daijavon a total of 15 times, including on her legs, back, stomach, and side. Daren implored Daijavon to get down on the ground, which she finally did. Hutchinson tied Daren's wrists behind his back with a cloth. When Daijavon told the armed man that Daren's arm was broken, the man replied, "I don't care. If I don't do this they are going to kill me." The man with the taser tied Daijavon's wrists with plastic zip ties. A third man tied Charlotte's wrists with zip ties. Daijavon broke apart the ties. The man with the taser grabbed Daijavon by the head and smashed her head on the ground several times. The man told Daijavon not to move, retied her wrists, and tased her again.

Hutchinson made a phone call and told the person, "We're in. We got 'em." Hutchinson told the Gaynairs that he was there to get the money, stating, "This is an inside job. You see, I don't have on a mask." Hutchinson asked where the other family members were. Daren said they were downstairs. Hutchinson and two of the other men then went downstairs. One man remained with the Gaynairs in the kitchen.

When the men confronted the Gaynairs upstairs, Dexenia was downstairs in her bedroom with Dakota. Dexenia heard the commotion and initially believed Daijavon was getting into trouble with her parents. Daren's sister Kim was in a nearby bathroom and heard someone from upstairs falling on the floor. She exited the bathroom and saw Dexenia crying. Kim then went into her mother Shirley's room to check on her and again heard someone from upstairs falling on the floor. She went to Dexenia who continued to cry. She told Dexenia to go to her room with Dakota and lock the door.

A minute or so later, Hutchinson and one of his accomplices entered Dexenia's bedroom. Hutchinson pointed a gun at Dexenia and ordered her to get down. Dexenia was immediately tased from behind and fell to the floor. Dexenia pleaded with Hutchinson not to hurt Dakota. Hutchinson told Dexenia that her father had done " ‘something bad.’ " When Kim heard Hutchinson's voice, she told her mother Shirley that she would go get help. Kim exited the house and made her way to a neighbor's home.

Moments later, Phillips entered Shirley's room with one of the other men, who then gave Phillips a gun and left. Phillips saw an open door in her room and asked Shirley if anyone had gone outside. Shirley lied and said the door was usually left open to let in some air. Phillips threatened to shoot Shirley but she begged him not to and defecated on herself out of fear. Phillips ordered Shirley to get in her wheelchair. Shirley told him she could not move herself. Phillips noticed that Shirley was looking at him closely. He held a pillow over her face and nearly suffocated her.

During this time, Hutchinson took Dexenia upstairs and placed her on the ground with her parents and Daijavon. Her wrists were tied behind her back with a cloth. Dakota was also brought upstairs. She stood near her family. At some point, Hutchinson told Daren that he was going to kill him. Daren pleaded with him to spare his daughters. Hutchinson asked Daren where the safe was located. Daren said it was in the hallway closet. Hutchinson then said, " ‘I already know where the safe is. I just wanted to see if you were gonna lie.’ "

Hutchinson and the man with the taser pulled Daren up from the ground and walked with him to the closet where the safe was located. Once there, Daren was tased four times and dropped to the ground. Hutchinson went inside the closet as the other man held a gun to Daren's head. Hutchinson asked for the combination, which Daren provided. Hutchinson eventually managed to open the safe but saw no money inside. Hutchinson asked Daren, " ‘Where's the fuckin’ money?' " Daren said he did not have any. The men then kicked Daren. Hutchinson said, " ‘Stop fuckin’ with me. I know you got money.' " Daren told Hutchinson that there were two cashier's checks inside envelopes in the safe. Hutchinson took the checks but told Daren that if he did not get his cash, he would take Dakota with him. Daijavon overheard Hutchinson's threat and said she had $3,500 in her purse. The man with the taser grabbed her purse and took out the cash. Hutchinson also took cell phones belonging to Daijavon, Daren, Charlotte, and Shirley. Dexenia did not have a cell phone.

By this time, Kim had made her way across the street to a neighbor's house where she called 911. The call was made at 9:03 a.m. Deputies arrived at the Gaynair's residence within minutes. When he heard the sirens, Hutchinson yelled, "TC, 1, 2, 3. Let's go," and fled the house with his accomplices. Hutchinson and Smith ran into a nearby ravine about a quarter of a mile away. Deputies found and detained the two shortly thereafter. After searching Smith, deputies found a loaded, 38-caliber revolver and zip ties. Deputies recovered jewelry, including cuff links, watches, necklaces, and a bracelet, as well as two $50,000 cashier's checks from Hutchinson. Phillips was located nearby as he ran along Hawthorne Boulevard. During a field show-up, Shirley identified Phillips as one of the perpetrators. Deputies found zip ties in Phillips' pocket when they booked him into custody.

During the investigation, deputies discovered muddy footprints...