PEOPLE v. CARDONA — (Leagle)

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Leagle

THE PEOPLE, Plaintiff and Respondent, v. DANIEL CARDONA, Defendant and Appellant.

Filed October 12, 2010.

No. F057879.

Court of Appeals of California, Fifth District

Victor Blumenkrantz, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION
HILL, J.
A jury found appellant Daniel Cardona guilty of kidnapping to commit robbery (aggravated kidnapping) (Pen. Code,1 § 209, subd. (b)(1); count 1), robbery (§ 211; count 2), and attempted robbery (§§ 664, 211; count 3). In a bifurcated proceeding, the trial court found appellant suffered three prior convictions, which qualified as prior strikes (§ 667, subds. (b)-(i)) and serious felony enhancements (§ 667, subd. (a)(1)). Appellant was sentenced as a third strike offender to prison for a total of 40 years to life: 25 years to life on each count, plus 15 years for the serious felony conviction enhancements; the court ordered the sentences on each count to run concurrently.
On appeal, appellant contends: (1) the trial court erred by denying his request for a trial continuance to admit proposed expert testimony on posttraumatic stress disorder; (2) the evidence was insufficient to support his conviction of aggravated kidnapping; (3) the trial court erred in imposing three five-year serious felony enhancements and should have imposed only two of the enhancements; and (4) the imposition of concurrent terms for the aggravated kidnapping and the robbery violated section 654. We agree with appellant’s third contention, which respondent concedes, and will direct the trial court to amend the abstract of judgment accordingly. In all other respects, the judgment will be affirmed.

FACTS

On March 15, 2008, approximately 5:00 p.m., appellant walked into a Kmart store in the city of Ceres. It was a busy time of day and there were quite a few customers and employees inside the store. Appellant approached Jeannette Garcia, a cashier, who was at the end of her shift and in the process of closing out her cash register. Garcia’s cash register contained approximately $300 at the time, and was the first register open to customers when they walked through the door.

Appellant told Garcia to give him her money or he was going to kill her. Appellant said he had a gun and Garcia felt him press an object against her back. Appellant kept repeating, “Do you want to try me?” and “Don’t try me because I will kill you.” Garcia took the cash from her cash register and placed it inside a deposit bag. Appellant then said, “I’m taking you with me. Come on.” Garcia was scared.
With his left hand around her neck, appellant led Garcia to the next open cash register. Appellant told “Sonya,” the cashier working that register, that if she did not give him her money, he was going to kill Garcia. Garcia testified that Sonya appeared nervous and was trying to figure out how to open her cash register.

Appellant told Sonya to hurry up or he would take Garcia with him. Sonya told appellant she was in the middle of a transaction and could not open the cash register. Appellant became agitated. When Sonya tried to call over a supervisor to open the cash register, appellant grabbed Garcia and told Sonya, “Never mind. I’m taking her with me.”
Appellant grabbed the bag of money from Garcia’s cash register, and with his arm around Garcia’s neck and his fist against her throat, led Garcia out of the store into the parking lot. As they were walking, appellant kept asking Garcia why she had said anything and stating that she was going to regret, or pay for, opening her mouth, even though Garcia had not said anything.
When they were approximately 30 feet from the front of the store, Garcia stopped walking. In a demanding voice, appellant told her to keep going, but she refused, saying, “No, I’m not going any further with you.” Garcia explained that she stopped walking because if appellant shot her there, at least she could get help but “who knows” what would happen if she kept going with appellant. When Garcia refused to go any farther, appellant flipped her around and pushed her away from him before walking away.
Appellant’s actions were observed by Sergio Oliveros, a Kmart employee who was in the parking lot, grabbing loose shopping carts to bring them back inside the store. He saw appellant walk out of the store, holding Garcia by the neck. He saw appellant let Garcia go, flinging her to the side. Appellant then walked to the street, got into a car, and took off.
Garcia testified that when appellant took her outside the store, although there were some people outside the store, there were fewer than there had been inside the store and she felt more scared than she had felt inside the store. She also saw Oliveros and a customer stop and look when they saw appellant with his arm around her neck. Surveillance video shows that when appellant moved Garcia outside, there was another Kmart employee close behind them, who got on a cell phone.
Garcia testified that during the encounter, she smelled alcohol on appellant’s breath. However, appellant did not stagger when he walked, slur his words, or say anything nonsensical. Garcia was able to understand appellant’s words clearly and he appeared to know exactly what he was doing.
After leaving the Kmart store, appellant returned to the house of his brother, Eduardo Cardona, and his brother’s wife, Blanca Cardona. Their house was located on a street directly behind the Kmart. Blanca testified that a little after 5:00 p.m., appellant rushed into the house. He went to the kitchen to get water. He then threw money down on the table, and told Eduardo, “I have this.” It appeared to be a lot of money.
Appellant and Eduardo started “scuffling” and Blanca was afraid they were going to fight. Blanca called 911 at Eduardo’s request. Appellant said, “You fucking bitch, don’t call the cops, I’ll kill you.” The police arrived at the house within a few minutes. In the meantime, appellant and Eduardo went out into the garage.
Officer Tonya Smith, who responded first to the Kmart store, testified that when she arrived shortly thereafter at the Cardona residence, the garage door was up and appellant and Eduardo were inside a vehicle. Appellant was seated in the passenger’s seat. Officer Smith pulled her weapon and notified dispatch that she had two at gunpoint. She then gave orders to Eduardo to shut the vehicle off and for both occupants to get out and show their hands.
Appellant did not immediately get out of the car. When he finally did and started walking towards Officer Smith, he was verbally combative and did not comply with her orders to get on the ground, saying “No, you fucking bitch.” He continued to throw his arms around while he yelled at her. Eventually, appellant complied and Officer Smith placed hi
m under arrest. Blanca recovered $300 from the vehicle’s center console and gave it to Officer Smith. The officer searched appellant and found a small, black folding knife.
After Officer Smith arrested appellant, he blurted out that he did not feel comfortable being out of prison and that he had been in prison for so long, he wanted to go back.
Officer Smith smelled alcohol on appellant but did not recall his speech being slurred. Appellant appeared to know exactly what was going on. He responded to questions and his answers made sense. She did not see anything that would make her think he might be mentally unstable or needed to be taken to a mental health facility for evaluation pursuant to Health and Safety Code section 5150.

The defense

Appellant’s brother, Eduardo Cardona, testified that appellant had recently come back from Texas, where he had been in prison for a long time. Eduardo offered to let appellant stay at his house, so he could try to help appellant find a job and readjust to life outside prison. Appellant had been staying at Eduardo’s house for a few months prior to the Kmart incident.
According to Eduardo’s testimony, as of March 15, 2008, appellant had a problem with drugs and alcohol. That morning, Eduardo saw appellant take four or five Vicodin pills, which was not unusual. Appellant had started taking Vicodin when he had a broken arm. Appellant also took Prozac, which had been prescribed to him through the Veteran’s Administration (VA) hospital. Appellant had problems with depression, which worsened while he was living with Eduardo. When appellant got depressed, he had a tendency to get suicidal, and had attempted suicide several times in the past.

On the morning of March 15, 2008, after appellant got up and took his medications, he asked Eduardo if he could borrow his truck to run some errands and visit friends. Eduardo’s stepson went with appellant to keep him company. They left the house between 9:00 a.m. and 10:00 a.m. After four or five hours, Eduardo started to get worried because they had not yet come home. When they finally returned, Eduardo’s stepson was driving the truck and appellant appeared to be very intoxicated.
Appellant came into the house and sat down. Eduardo was afraid to bring anything up because when appellant was intoxicated, he had a tendency to argue and “act out” and Eduardo wanted to avoid a confrontation.
Eduardo sat down on a couch near appellant. In a normal speaking voice, Eduardo told appellant that if he was going to borrow his truck, he would appreciate it if appellant would not drink because his stepson was not supposed to be driving the truck, which was Eduardo’s work truck. Appellant remained quiet and gave Eduardo “that look,” which made Eduardo think that something was going to happen. Appellant threw his phone against the wall, got up, and walked out of the house. It was around 4:45 p.m., when appellant left the house.
The next time Eduardo saw appellant was when appellant came into the house and went to the kitchen to get some water. Appellant was breathing hard and sweating, and looked like he had been running. Eduardo asked, “What the hell did you do now?” Appellant replied, “Nothing.” Eduardo then told appellant he wanted him out of the house. Appellant grabbed a lamp and was about to throw it, when Eduardo grabbed him, pushed him against the wall, and said, “Don’t you dare do anything to this house.”
Afraid appellant was going to start trashing the house, Eduardo told his wife to call the police. Eduardo had not yet seen the money at that point. Eduardo told appellant just to get in the car and that he would drop him off somewhere because he did not want appellant inside his house anymore. When they got into the car and opened the garage, the police were there.
When the police officer was telling appellant to get down, appellant was very intoxicated and not taking orders. He kept telling the officer, “Shoot me. Shoot me.” The officer replied, “Well, if I have to, I will.” Eduardo yelled at appellant to get on the ground. When appellant finally got on the ground, he was still yelling obscenities. Eduardo testified that when alcohol took a hold of appellant, appellant was unable to control himself.

I. Exclusion of Evidence of Post-traumatic Stress Disorder

Appellant contends the trial court abused its discretion and denied him his due process right to present a defense by refusing to grant a trial continuance to allow Dr. Jacqueline Keller, a psychologist who had diagnosed appellant with posttraumatic stress disorder (PTSD), to testify for the defense. Appellant argues Dr. Keller’s proffered testimony concerning his PTSD and PTSD symptoms would have been relevant to the issue of whether he formed the required mental state for robbery. Appellant further argues the evidence would have been relevant to explain why he believed Garcia had said something inside the store when she had not spoken and to explain his conduct when Officer Smith was pointing a gun at him. We conclude the trial court did not abuse its discretion in determining, after conducting an Evidence Code section 402 hearing, that the proffered PTSD evidence would be excluded under Evidence Code section 352, because the defense failed to establish a sufficient link between appellant’s PTSD and the issue of specific intent, and the evidence had a greater potential of confusing the jury than explaining appellant’s mental state at the time of the crimes.

B. Analysis

On the record before us, we cannot conclude the trial court’s denial of appellant’s request for a trial continuance to allow Dr. Keller to testify, thereby excluding evidence of appellant’s PTSD, constituted an abuse of discretion. At the Evidence Code section 402 hearing, defense counsel made the following offer of proof: “What I anticipate [Dr. Keller’s] testimony will be is [appellant] does suffer from post-traumatic stress disorder and that his mental illness played at least some part in his actions the day he was accused of robbing the [Kmart].” Defense counsel explained:
“[T]he issue is what happens to a person who’s experiencing post traumatic disorder when that’s activated. And there’s a thing called [dissociation]2 which can occur. The problem in [appellant’s] case is that he was also highly intoxicated at the time of this incident. So she ­ I mean, no expert can testify that, you know, [appellant] didn’t have the mental state, [what] she can talk about is the disorder, and what it looks like and what that person looks like. But . . . because of the complications with intoxication, she can’t say for certain that there was the [dissociation] or the intoxication. But her opinion is that likely both were present. [¶] So it’s not as if I can have an expert come here and say [appellant] was experiencing [dissociation] at the time. She’s going to come and say it’s possible. I can’t rule it out, but it’s complicated by the fact of his intoxication. I think that both voluntary intoxication and PTSD go towards the mental state required in robbery, which I believe is a specific intent crime that you have intent to permanently deprive someone of their property. So that’s why I intend to call her.”
Defense counsel added that appellant had also been diagnosed through the VA hospital as suffering from PTSD but agreed with the prosecutor that its diagnosis was PTSD caused by prison confinement, whereas Dr. Keller had identified the abuse by appellant’s father of his mother and siblings during his childhood as the cause of his PTSD.
The January 30, 2009, letter of Dr. Keller, on which defense counsel based his offer of proof, did not specifically link appellant’s PTSD and PTSD symptoms to the issues and circumstances of this case. In relevant part, Dr. Keller’s letter stated:
“[Appellant’s PTSD] symptoms have declined in severity over the years, but they remain and his reactivity to trauma-related triggers has not remitted. He continues to respond with aggression, and a few very brief episodes of dissociation, when triggered by aggression or being humiliated.
“[Appellant] reported blacked out memories of almost all of his violent episodes. Because the vast majority of them occurred while he was intoxicated, it is not possible to say whether there was dissociation accompanying that lack of memory or it was due solely to the drugs and alcohol. It would be my opinion, that likely both were present to some degree.”
As can be seen, Dr. Keller did not state that it was likely or even possible appellant was experiencing dissociation at the time of the current offenses or render any opinion as to appellant’s mental state at the time. Indeed, Dr. Keller’s letter contained no specific mention of the circumstances of this case. Rather, Dr. Keller specifically discussed appellant’s PTSD symptoms in connection with past episodes of violence appellant reported to her, and there is no indication appellant had been referring to anything that had happened in connection with this case…

II. Sufficiency of the Evidence of Aggravated Kidnapping

Appellant contends there was insufficient evidence to support the conviction for aggravated kidnapping. He claims his “brief movement of Garcia from her cash register to just outside the store” was merely incidental to the commission of robbery and did not increase Garcia’s risk of harm. We find appellant’s arguments unpersuasive and conclude substantial evidence supports his conviction of aggravated kidnapping.