P. v. Kahn

Filed 5/31/16 P. v. Kahn CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent,
v.
CODY KYLE KAHN,
Defendant and Appellant.
G050574
(Super. Ct. No. 11NF3650)
O P I N I O N
Appeal from a judgment of the Superior Court of Orange County, W.
Michael Hayes, Judge. Reversed in part and affirmed in part.
Sharon M. Jones, under appointment by the Court of Appeal, for Defendant
and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina,
Kristen Chenelia and Christine Levingston Bergman, Deputy Attorneys General, for
Plaintiff and Respondent.
* * *

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Cody Kyle Kahn appeals following his conviction on charges of robbery,
aggravated kidnapping, false imprisonment by violence, having a firearm in his vehicle,
and carrying a loaded, unregistered firearm. He was sentenced to a term of 10 years,
followed by an indeterminate term of life with the possibility of parole.
Defendant argues his conviction must be overturned because the prosecutor
engaged in misconduct by advising the victim, incorrectly, that the court order allowing
the defense investigator access to the crime scene – the lobby of an Anaheim hotel – was
limited to one day, thereby thwarting defendant’s ability to complete his trial preparation,
and by thereafter sending her own investigator to the scene to address the same issue she
knew the defense investigator had intended to explore, without disclosing that
investigation to defendant.
Defendant also argues: (1) the evidence was insufficient to support his
conviction for aggravated kidnapping because the movement of the victim was not
substantial; (2) the search of his cell phone, incident to his arrest, violated his rights under
the Fourth Amendment and consequently the evidence obtained from that search should
have been suppressed; and (3) the use of CALCRIM No. 376 violated his right to due
process because it invited the jury to convict him of kidnapping and robbery on only
slight evidence.
We conclude the prosecutor engaged in misconduct, whether or not
intentional, when she misrepresented the content of the court order allowing the defense
investigator access to the crime scene. And by doing so, she hindered the defendant’s
preparation of his case. That being said, however, we find the misconduct was not
prejudicial, and thus does not warrant a reversal of the judgment.
As to defendant’s other claims, we reject his assertion regarding the cell
phone evidence because the phone’s search was authorized under California law at the
time it was conducted, and thus there is no deterrent effect in suppressing the evidence
obtained. And we find no error in the trial court’s use of CALCRIM No. 376. What the

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instruction actually does is prohibit the jury from basing a conviction solely upon
evidence that a defendant knowingly possessed stolen property, and the fact it allows a
conviction based on only slight additional evidence is not a denial of due process.
However, we agree with defendant’s contention the evidence was insufficient to support
his conviction for aggravated kidnapping because moving the victim from the area behind
the hotel’s front desk to an adjacent hallway was merely incidental to the robbery and did
not increase the risk of harm to him.
FACTS
This case involves a robbery carried out at the Desert Palms Hotel in
Anaheim, where defendant was employed from August 2008 until he was fired in January
2010. Both during and after the period of defendant’s employment, the hotel offered
tickets to Disneyland, Knott’s Berry Farm, and Universal Studios for sale to its guests.
The tickets were kept in folders behind the front desk.
On November 9, 2011, two male employees were working the night shift at
the hotel – one was at the front desk and the other was elsewhere performing
maintenance. At about 3:00 a.m., two young males wearing black clothing, black gloves
and white masks covering their entire faces, entered the hotel and jumped across the
counter at the front desk. They grabbed the employee from the floor where he had fallen,
and dragged him into a hallway behind the desk. One of the men held a gun against the
employee’s neck while they bound his hands and feet with zip ties.
The men left the employee bound up while they went back to the front
desk. After about a minute, they returned and asked him twice where the Disneyland
tickets were. They came back into the hallway again, put down their bags or backpacks
and put the cash they had taken into the backpacks. The second employee was
confronted by the men in the hotel’s laundry room. They pointed a gun at him and told

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him to get on the floor. After he did so, they also bound his hands and feet with zip ties,
while one of the men continued to point a gun at his head.
After the robbers left the building, the first employee freed himself from his
restraints and called 911. He described both robbers to the police as being approximately
five feet ten inches tall, and weighing about 170 pounds. The second employee described
one of the robbers as being about five feet five inches tall, and the other being about five
feet seven inches tall. It was later determined that over $56,000 worth of Disneyland
tickets had been stolen from the hotel. Disneyland was notified and the tickets were
subsequently cancelled.
Three weeks later, defendant, who is six feet two inches tall and weighed
240 pounds at the time of the robbery, visited Disneyland using an annual pass.
However, he was accompanied by two others, one of whom attempted to enter the park
with a ticket that was rejected by the ticket scanner. Disneyland investigators later
determined the rejected ticket had been among those stolen from the hotel during the
November 9, 2011, robbery.
Thereafter, defendant’s identity was obtained from Disneyland’s records of
annual passholders. When interviewed by Anaheim police on December 7, defendant
identified the two people with him at Disneyland as his friend Derek (later identified as
Derek Jesson) and Jesson’s girlfriend. He explained that he and Jesson had gone to
Chinatown a couple of weeks previously to buy a knife, and Jesson bumped into a friend,
Kevin Nguyen, who offered to sell them Disneyland tickets he had obtained from a
“supplier.” Defendant bought three tickets. When the police officer pointed out, later in
the interview, that at the time defendant and his friends had tried to enter Disneyland,
they told the Disneyland employees that their tickets had been purchased at the Desert
Palms, defendant responded that Nguyen had told them to say that.
The police searched defendant’s bedroom where they found three binders
containing the stolen tickets, a white mask of the type worn by the robbers, a gun box and

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magazine for a .40 caliber Smith and Wesson handgun, and a package of zip ties. There
were six zip ties missing from the package, which is the same number used to restrain the
hotel employees during the robbery. A search of defendant’s car carried out on the same
day revealed 20 additional stolen Disneyland tickets, a pair of black and gray gloves, a
grey hoodie of the type worn by the robbers, and a Smith and Wesson handgun that
appeared to be the same gun visible in a surveillance video from the robbery.
Defendant was arrested and the police searched his cell phone incident to
that arrest, including reading the text messages found on it. Defendant was charged with
one count of kidnapping to commit robbery (Pen. Code, § 209, subd. (b); all further
staturory references are to this code); two counts of robbery (§§ 211, 212.5, subd. (c); one
count of false imprisonment by violence (§§ 236, 237, subd. (a); one count of having a
concealed firearm in his vehicle (former § 12025, subd. (a)(1), (b)(6), now § 25400, subd.
(a)(3); and one count of carrying a loaded, unregistered firearm in public (former
§ 12031, subd. (a)(1), (a)(2)(F), now § 25850, subds. (a), (c)(6). The information also
alleged, in connection with the robbery counts, that defendant personally used a firearm
within the meaning of section 12022.53, subdivisions (a) and (b).
The defense hired an investigator, William Hunt, to take photos and
measurements of the crime scene and then compare those to the surveillance video taken
during the robbery, for the purpose of showing that neither of the robbers shown on the
video was the same height as defendant. The hotel operator initially refused Hunt
permission to conduct his investigation on the hotel premises, and defendant’s counsel
obtained a court order allowing Hunt access to the premises. The order was not limited
to one day, nor otherwise limited by time.
On January 8, 2015, Hunt went back to the hotel with the court order. After
that visit, he wrote a report detailing his preliminary conclusions, but determined he
would need to return to the site to take additional photos and measurements so he could
ascertain how accurately the surveillance cameras depicted height. Hunt planned to use

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himself as a model because he was a similar height to defendant – something he had been
unable to do on the first visit because he lacked a ladder and an assistant. On February 3,
defense counsel forwarded Hunt’s preliminary report to the prosecutor, including Hunt’s
statement that he wanted to return to the hotel for additional photos of himself standing
where the robbers were standing in the surveillance video, prior to his testimony.
On February 4, the prosecutor contacted her own investigator and informed
him that Hunt intended to return to the hotel for further investigation. She also told her
investigator, incorrectly, that the court order allowing Hunt access to the hotel premises
had authorized one visit only. She later explained she had done so because most such
orders were limited to a single visit, and she had not read this specific order before
detailing its supposed content to her investigator. She also instructed her investigator to
go back to the hotel and conduct his own additional investigation.
The prosecutor’s investigator called the hotel manager that same day to
arrange an additional visit. During that conversation, the investigator also informed the
manager that Hunt was also expected to return to the hotel for further investigation, and
then volunteered that because the court order allowing Hunt access was no longer in
effect, the manager should feel free to refuse Hunt access. Two days later, on February 6,
Hunt returned to the hotel premises to complete his investigation, but was refused access.
The prosecutor’s investigator went back to the site on February 7 and was
able to conduct further investigation, which included taking video. That additional
investigation was essentially the same inquiry Hunt had intended to do on his return visit,
but had been prevented from doing by the prosecutor. The prosecutor was informed on
February 7 that Hunt had returned to the hotel, but was denied access to the site.
Three days later, on February 10, the prosecutor began putting on evidence
at the trial. The prosecutor rested her case without calling her investigator as a witness.
The defense then called Hunt as its first witness on February 13. Hunt testified about his
one site visit, and described some still photographs which he had marked with a line

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depicting the top of a lockbox, which established a “relative height of five foot six and
five-eighths.” When asked if he could estimate “how far away from the wall” two
hooded figures were in one of the photographs, he replied “Well, no.” And when asked if
he was able to make an estimate as to the height of the figures depicted in a photo, he said
“it would be a guess.” After the prosecutor objected to such a guess, defense counsel
terminated his questioning of Hunt.
On cross-examination, the prosecutor asked Hunt whether it appeared to
him “not as an investigator, as a lay person,” that one of the people in the photos he took
appeared to be taller than the lockbox. He responded, “It would appear he may be a little
taller.” He then agreed the other person appeared to be “quite a bit shorter than the
lockbox,” but then clarified it was hard to tell from the photos he provided.
After the prosecutor asked Hunt a string of questions about the accuracy of
physical descriptions given by the victims, she asked him to clarify “that you were unable
to gather any information relating to the angle of this video surveillance camera[?]” He
responded, “We were prevented from it” because “[t]he manager would not let me do
further than what I did.” The prosecutor then asked for a chambers conference to discuss
whether Hunt had violated the court’s earlier order to “exclude reference to any
statements about witness’s willingness to cooperate with defense and/or defense
investigators.”
In the course of discussion in chambers, the court read the order granting
Hunt access to the site (which had been issued by a different judge), and noted it had not
contained any limitation as to days or time, as was typical of such orders. Although this
point was then discussed in some detail, the prosecutor did not mention she had – only
just days before – incorrectly told her investigator that although Hunt intended to return
to the hotel for further investigation, the prior court order did not authorize it and the
hotel manager should feel free to exclude him. Moreover, it was only when the court
asked her directly that the prosecutor acknowledged she had already known that Hunt had

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returned to the site, but was refused access, when she questioned him about his failure to
measure the camera angle. The court consequently ruled it was appropriate for Hunt to
respond to that question by stating he had been prevented from further investigation by
the hotel manager.
Upon further cross-examination, Hunt stated he was hired primarily to
assist in determining the height of the two individuals depicted on the hotel’s surveillance
camera during the robbery. He explained he had been unable to determine their exact
heights, but believed one was slightly taller than the lockbox, while the other was slightly
shorter. On redirect, he stated that none of the evidence he was able to review caused
him to conclude that the taller of the two robbers could have been as tall as six feet two
inches.
Defendant waived his Fifth Amendment right and testified after Hunt. He
explained that it was his friend, Jesson, who robbed the hotel. He testified he had
become acquainted with Jesson in 2010, when both were enrolled in classes at Golden
West College. Prior to the robbery, defendant and Jesson had discussed how such a
robbery might be carried out, and defendant provided Jesson with many details about the
hotel. However, defendant believed this was just idle chat, and claimed he did not
believe Jesson would ever try to rob the hotel, and had no intention of helping him do so.
Defendant claimed he found out about the robbery right after it occurred,
when Jesson showed up at his house after 3:00 a.m. that same night. Jesson brought with
him a duffle bag containing the tickets and a mask, and defendant then realized he had
robbed the hotel. Defendant explained that Jesson did not bring the zip ties with him that
night, however. Instead, defendant had asked Jesson at a later date if he could borrow
some zip ties, which he used for automotive work. Jesson gave him the package, which
defendant had taken home but not used prior to his arrest. Defendant acknowledged that
both the gloves and the gun found in his car belonged to him. He described the gloves as
typical mechanics gloves, which he used while working on cars. He testified Jesson also

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owned a similar gun, and that he and Jesson had gone together to Jesson’s property in
Temecula to shoot guns at some point before the robbery. Defendant claimed the hoodie
found in his car, which appeared to be of the type worn by the robbers, belonged to
Jesson, who was wearing it on the night of the robbery and had left it in his car.
Defendant said he did not know the identity of the second robber, although he had later
asked Jesson who it was.
On cross-examination, defendant agreed he had given Jesson very detailed
information about the hotel and its nighttime operation – including the number of
employees on the premises, the location of surveillance cameras, how many Disneyland
tickets there were, how much cash was on hand, and “exactly where the drawers were.”
Defendant also conceded that he owned one of the masks used in the robbery – he
purchased it at Halloween, just before the robbery – but he explained that Jesson had
somehow gotten it from him, and thereafter used it in the robbery.
When asked by the prosecutor if he had been involved in stealing things
before, defendant answered “no.” But he was then impeached with evidence of a text
message sent by his fiancée on October 8, stating, “That stealing bullshit has to stop.
You could get caught.” Defendant then admitted he had stolen things before the robbery,
including shoes and tools.
With respect to the tickets, defendant stated he did not know how many
tickets Jesson had brought to him on the night of the robbery, but claimed Jesson had
asked him to just “hold on to them.” Defendant not only did that, but acknowledged he
had tried to sell some of them. On November 17, defendant wrote a text message to a
friend named Mario, stating “The tickets work.” Mario wrote back, “Congratulations.
You are rich. Need to celebrate.”
Defendant also admitted that he purchased his gun in October 2011, the
month before the robbery. He purchased it in Arizona, on a trip with Jesson and Jesson’s
father, and he knew it was unregistered.

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After defendant’s testimony concluded for the day, the jury was sent home
and the parties discussed jury instructions with the court. The prosecutor then informed
the defense, for the first time, that the prosecutor’s investigator would testify on rebuttal,
based on his own investigation of the premises on February 7, and that he would be
relying on the videotape he had taken that day.
The following day, February 14, the prosecutor left messages for both the
hotel manager and defense counsel to “correct[] our prior misinformation about the scope
of the court’s order [allowing Hunt access to the hotel premises].” She suggested that if
Hunt wished to go back and take additional measurements, to “please do so as early as
possible.”
At the next court session, on February 18, the defense brought a motion for
relief based on prosecutorial misconduct. Specifically, the defense argued prosecutorial
misconduct based on the prosecutor’s interference with the defendant’s right to conduct
his own further investigation of the premises in accordance with the court’s order, and the
prosecutor’s failure to reveal its own investigator’s additional investigation until after
both the defense investigator and defendant had testified at trial. The defense argued this
amounted to sabotage of the defense case. As remedies, the defendant sought (1)
dismissal of the case with prejudice, (2) dismissal of the case without prejudice, or (3)
suppression of the videotape taken by the prosecutor’s investigator when he returned to
the hotel premises.
The defense also moved to exclude the videotape on the grounds (1) it had
not been disclosed to the defense in a timely fashion, and (2) it was not relevant because
the location of the surveillance camera had been moved since the robbery. The court
concluded the existence of the videotape was disclosed in a timely fashion because it was
rebuttal evidence the prosecutor decided to use only after the defense rested its case. And
the court concluded the alteration in the camera angle as compared to the date of the
robbery was merely an issue to be hashed out before the jury, and did not render the

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videotape irrelevant. The court also believed the videotape actually supported the
defense theory that the robbers were shorter than defendant.
With respect to the misconduct assertion, the court did express “great
concern” that the prosecutor had “tried to keep out the fact [Hunt was] denied entry” in
response to her attempt to impeach his testimony, despite the fact she already knew what
had happened, and that she had continued to argue the point in chambers even after the
court had read aloud the earlier court order which revealed that her earlier
mischaracterization of the order had played a part in Hunt’s inability to complete his
investigation. However, the court also made clear that while it faulted the prosecutor for
making an assumption about the content of a court order without reading it, it also
believed she had made an honest mistake when she mischaracterized the scope of the
order to her investigator, and that she had not been “playing hide the ball.”
Ultimately, the court offered the defense an opportunity to return to the
hotel and conduct further investigation – including the creation of its own videotape
using the hotel’s surveillance camera if it was not satisfied with the prosecution’s video –
before resting its case.
Defendant resumed the stand and the prosecutor continued her cross-
examination. He acknowledged that the story he told to the police following his arrest
had been a lie, and that there was no Kevin Nguyen selling Disneyland tickets in
Chinatown. He claimed he had told that story because he was trying to protect his friend,
Jesson, from being implicated in the hotel robbery. Defendant also conceded that he had
told Jesson he would help him sell the tickets after the robbery, but he never actually did
it and had no intention of doing it.
After defendant completed his testimony, the defense rested. The
prosecutor called her investigator to testify in rebuttal to defense investigator Hunt’s
testimony about the apparent height of the robbers. The investigator described the
circumstances of his visit to the hotel on February 7, 2014, where he obtained a videotape

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from the surveillance camera, depicting himself walking around in the places where the
robbers had been seen during the robbery. The video was played for the jury and
admitted into evidence. Among other things, the investigator testified about how the
surveillance camera footage made him appear to be the same height as, or even shorter
than, the top of the lockbox Hunt had referred to in his testimony, even though he was
five feet eleven inches tall. The defense declined to cross-examine the investigator and
chose not to call Hunt as a surrebuttal witness.
The jury convicted defendant on all counts. The court subsequently
sentenced him to a life term with the possibility of parole on the aggravated kidnapping
count, and a consecutive term of 10 years for the firearm enhancement alleged in
connection with that count. The court imposed and stayed punishment on one count of
robbery and the count of false imprisonment, and imposed concurrent sentences on the
other count of robbery and the two firearm counts. Defendant’s total sentence was 10
years, followed by an indeterminate term of life with the possibility of parole.
DISCUSSION
1. Prosecutorial Misconduct
Defendant first argues his conviction must be reversed because the
prosecution engaged in egregious misconduct when, after learning that defendant’s
investigator, Hunt, intended to return to the hotel to conduct further investigation
involving the surveillance camera, they misrepresented to the hotel manager that the
court order allowing Hunt access had been limited to one day and he was therefore
entitled to refuse Hunt further access. And at the same time, the prosecution sent its own
investigator to the hotel to conduct the very same investigation Hunt had intended to do,
without informing the defense. It was only after Hunt had completed his testimony, and
defendant had waived his rights under the Fifth Amendment and begun testifying, that the

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prosecution revealed what it had done and acknowledged its role in thwarting Hunt’s
investigation.
While we agree the prosecution’s conduct is disturbing – at a minium, the
prosecutor’s misrepresentation of the content of a court order was negligent – we
conclude it does not justify a reversal of the judgment.
“‘“A prosecutor’s misconduct violates the Fourteenth Amendment to the
United States Constitution when it ‘infects the trial with such unfairness as to make the
conviction a denial of due process.’ [Citations.] In other words, the misconduct must be
‘of sufficient significance to result in the denial of the defendant’s right to a fair trial.’
[Citation.] A prosecutor’s misconduct that does not render a trial fundamentally unfair
nevertheless violates California law if it involves ‘the use of deceptive or reprehensible
methods to attempt to persuade either the court or the jury.’ [Citations.]”’ [Citation.] ‘A
defendant’s conviction will not be reversed for prosecutorial misconduct, however, unless
it is reasonably probable that a result more favorable to the defendant would have been
reached without the misconduct.’” (People v. Tully (2012) 54 Cal.4th 952, 1009-1010,
italics added.)
Defendant’s argument stumbles on this last aspect of the analysis. He
argues that the prosecutor’s misconduct “denied [him] his right to due process of law by
preventing the defense from conducting crucial investigation which would have affected
the decision whether to rest after the presentation of the prosecution’s case.” In his reply
brief, he claims the prosecution’s misconduct was highly prejudicial because “[h]ad the
defense been appri[s]ed of the information obtained by the [prosecution] prior to the
presentation of the defense case, it would have impacted decisions concerning the
testimony of defense witnesses and, indeed, whether or not the defense would have
chosen to present the testimony of either Mr. Hunt or [defendant].” However, given the
massive pile of circumstantial evidence amassed against defendant, we have no trouble

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concluding, even beyond a reasonable doubt, that he would have been convicted had he
put on no defense.
Specifically, the prosecution had established: (1) defendant worked at the
hotel and he knew about the Disneyland tickets; (2) when he was apprehended, he not
only had the stolen tickets in his possession, but also had the mask used in the robbery,
the hoodie worn by one of the robbers, and an unregistered gun that appeared to be the
one used in the robbery, a bag of twist-ties short the same number as used in the robbery;
and (3) the initial story defendant told police about having bought a few of the stolen
tickets from a guy in Chinatown was wholly inconsistent with his possession of all those
things. Defendant’s only hope was to provide the jury with some other explanation of
those things. The fact that his testimony caused him a host of additional problems is
neither here nor there. Without it, he had no chance.
And the fact that defendant might have chosen to omit Hunt’s testimony if
he had been able to complete his own anticipated investigation before trial – or if he had
been privy to the prosecution’s last minute videotape – does not change the analysis.
There is no indication Hunt’s testimony actually hurt the defense and defendant does not
explain how omitting that testimony might have altered the outcome of the trial.
Significantly, defendant does not argue that Hunt’s testimony would have been improved
in the absence of the prosecutorial misconduct – i.e., that Hunt’s initial determination the
robbers were shorter than defendant would have been vindicated had the prosecutor not
thwarted his attempt to complete his own investigation prior to testifying. Instead,
defendant seems to be conceding that ultimately, the surveillance footage was not helpful
in establishing the robbers were shorter than he. Given that concession, we could not
conclude the defense suffered significant prejudice because Hunt was not allowed to
finish his investigation before testifying.
Moreover, we reject defendant’s assertion the trail court failed to offer him
“any meaningful remedy” after it was revealed the prosecutor had misrepresented the

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court order to the hotel manager, and thus interfered with the completion of Hunt’s
investigation. The remedy offered by the court was that Hunt would be allowed to return
to the hotel and complete his investigation using the hotel’s own surveillance camera ‒
before the defense rested its case – and thus before the prosecutor would have the
opportunity to call her investigator to rebut Hunt’s initial testimony with his own
surveillance videotape. By doing so, the court ensured the defense would have a chance
to give its best version of Hunt’s testimony, before the prosecution rebutted anything.
That was a meaningful remedy.
Finally, in response to the Attorney General’s assertion that defendant
could not have been prejudiced by the prosecution’s rebuttal videotape because the trial
court commented that the tape appeared to actually support defendant’s claim the robbers
were shorter than he was, we asked the parties to brief the issue of whether the prosecutor
had violated her duties under Brady v. State of Maryland (1963) 373 U.S. 83 [83 S.Ct.
1194, 10 L.Ed.2d 215], by failing to promptly disclose that videotape to the defendant.
However, as the videotape was disclosed to defendant before the defense rested its case,
and the court arranged for defendant to conduct his own further investigation of the hotel
premises before the videotape was shown to the jury, we conclude no Brady violation
occurred. (People v. Wright (1985) 39 Cal.3d. 576, 591 [No Brady violation where the
trial court “allow[ed] defendant to present the additional evidence to the jury in a timely
manner, so that it could be considered in their deliberations”].) Moreover, as we have
already explained, we find defendant suffered no significant prejudice.
2. Kidnapping
Defendant next argues the evidence was insufficient to support his
conviction on the count of kidnapping for purposes of robbery – i.e., aggravated
kidnapping. Specifically, defendant asserts that the movement of the front desk clerk

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from the area behind the desk, into an adjacent hallway, did not constitute sufficient
movement to qualify as asportation for purposes of a kidnapping charge.
In reviewing such a challenge, we “must review the whole record in the
light most favorable to the judgment below to determine whether it discloses substantial
evidence - -that is, evidence which is reasonable, credible, and of solid value - - such that
a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.”
(People v. Johnson (1980) 26 Cal.3d 557, 578.) We “‘“‘presume in support of the
judgment the existence of every fact the trier could reasonably deduce from the
evidence.’”’” (People v. Clark (2011) 52 Cal.4th 856, 943.) And if the evidence
reasonably justifies the trier of fact’s findings, reversal is not warranted simply because
the evidence might also reasonably be reconciled with a contrary finding. (People v.
Lindberg (2008) 45 Cal.4th 1, 27.)
The standard for asportation in an aggravated kidnapping – referring
specifically to a kidnapping carried out “to commit robbery, rape” or other specified
offenses (§ 209, subd. (b)(1)) ‒ focuses on the movement’s relationship to the other
crime. The standard “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; see § 209, subd. (b)(2).) The two elements of this test “are
not mutually exclusive, but interrelated,” (People v. Rayford (1994) 9 Cal.4th 1, 12
(Rayford)) and the standard “suggests a multifaceted, qualitative evaluation rather than a
simple quantitative assessment.” (People v. Dominguez (2006) 39 Cal.4th 1141, 1152.)
Significantly, “whether the victim’s forced movement was merely incidental to the
[underlying crime] is necessarily connected to whether it substantially increased the risk
to the victim.” (Ibid.)
In assessing whether the movement increases the risk of harm to the victim
over and above that present in the robbery itself, the trial court considers “such factors as

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the decreased likelihood of detection, the danger inherent in the vicitm’s forseeable
attempts to escape, and the attacker’s enhanced opportunity to commit additional
crimes.” (Rayford, supra, 9 Cal.4th at p. 13.)
Defendant relies on People v. Hoard (2002) 103 Cal.App.4th 599 (Hoard),
in which the trial court concluded that moving jewelry store employees into a back office,
where they were restrained while the defendant robbed the store did not qualify as an
aggravated kidnapping. Not only did the Hoard court conclude the movement of the
employees had been merely incidental to the robbery, but it specifically rejected the
notion that confining the employees had increased the risk of harm to them: “a rape
victim is certainly more at risk when concealed from public view and therefore more
vulnerable to attack. But in the present case, the victims may have been at less risk tied
up in the back office where they could not try to thwart the robbery than had they
remained at gunpoint in the front of the store.” (Id. at p. 607.) Similarly, the court
rejected the notion that moving the employees to the back office for a brief period
subjected them to a substantial increase in the risk of psychological harm, over and above
what would be expected from a stationary robbery. In doing so, the court contrasted that
situation to the one found in People v. Nguyen (2000) 22 Cal.4th 872, where “the victim
was moved to five different locations over a period of hours, not 50 feet for a few
minutes.” (Hoard, at p. 607.)
We agree the facts of Hoard are most closely analogous to the present case,
and its reasoning is persuasive. Moreover, the Attorney General’s effort to distinguish it
fails. The Attorney General argues that because defendant had already ordered the desk
clerk onto the floor behind the front desk, it was consequently unnecessary to move him
any farther to carry out the robbery. But that assertion is immediately undermined by the
acknowledgment that the cash and Disneyland tickets the robbers sought were stored
behind the front desk; hence, if the desk clerk were not moved out of the immediate area,
defendant and his cohort would have had to step over and around him to conduct their

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search. In these circumstances, as in Hoard, moving the desk clerk “served only to
facilitate the crime with no other apparent purpose.” (Hoard, supra, 103 Cal.App.4th at
607.)
The Attorney General’s contention that moving the desk clerk into the
hallway subjected him to an increased risk of physical or psychological harm is likewise
unavailing. Specifically, the mere fact the clerk “was out of public view and away from
the surveillance cameras” did not demonstrate either that the crime was less likely to be
detected that the clerk was in greater peril. As to the former, the robbery was being
carried out by men dressed in black hoodies and white masks. If anyone had entered or
even looked into the hotel lobby while the robbery was in progress, they would have
realized what was happening without regard to whether the clerk was also visible in the
lobby. And because there is no evidence the surveillance cameras were being monitored
during the robbery, the clerk’s appearance on the screen would not have affected the
likelihood of detection. And as to the latter, there is simply no basis to infer that
remaining in the lobby with the armed robbers would have been safer for the clerk than
remaining in the hallway, out of any potential line of fire.
The Attorney General also argues that the movement of the desk clerk into
the hallway subjected him to an increased risk of psychological harm because “his
seclusion exacerbated the mental anguish,” but cites no evidence to support it. “The
essence of aggravated kidnapping is the increase in the risk of harm to the victim caused
by the forced movement.” (People v. Dominguez, supra, 39 Cal.4th at p. 1152, italics
added.) And yet when the desk clerk was asked if he was “afraid for your life” during the
robbery, he made no reference to being moved into the hallway. Instead, he made clear it
was the gun and the restraints that caused him to feel that way: “Definitely. It’s a gun.
It’s a gun pointed straight at your head while they’re zip-tying you.”
Finally, the Attorney General cites People v. Corcoran (2006) 143
Cal.App.4th 272, suggesting it is more on point. We cannot agree. In Corcoran, the

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defendants were attempting to rob a bingo hall, and it was only after they abandoned that
plan because one of the victims had escaped, that “[a]t gunpoint, they herded the victims
approximately 10 feet from a public area to a small back office without windows and
with a solid door. Believing that [another victim] was trying to call the police, defendant
pulled what he believed to be a telephone cord out of the wall. He threatened to shoot the
victims if they left the office.” (Id. at p. 279, fn. omitted.) The court reasoned that
because the attempted robbery had already been aborted when the victims were moved
into the office, and because the would-be robbers engaged in additional menacing acts
while holding the victims in the office, the movement was not merely incidental to the
attempted robbery and had increased the risk of danger to the victims. “In the instant
case, the movement of the victims had nothing to do with facilitating taking cash from the
bingo hall; defendant and his accomplice had aborted that aim, and their seclusion of the
victims in the back office under threat of death was clearly ‘excess and gratuitous.’” (Id.
at pp. 279-280.) Significantly, Corcoran did not disagree with Hoard, but instead
distinguished it on that basis. (Id. at p. 280.) This case is factually on point with Hoard,
and is thus distinguishable on that basis as well.
Consequently, we conclude there is no substantial evidence to support
defendant’s conviction for aggravated kiddnapping, and the conviction must be reversed.
3. Cell Phone Search
Relying on Riley v. California (2014) 513 U.S. ___ [134 S.Ct. 2473, 189
L.Ed.2d 430] defendant also claims his Fourth Amendment right to be free of
unreasonable searches and seizures was violated when the police searched his cell phone,
without a warrant, at the time of his arrest. In Riley, the United States Supreme Court
concluded that the rule allowing police to search and seize physical items under an
arrestee’s immediate control did not extend to a search of the contents of a cell phone.
Defendant acknowledges that Riley was decided after his trial, but argues it states a

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constitutional rule of criminal procedure that applies retroactively to pending cases such
as this, and thus it demonstrates that the text messages uncovered during the search of his
cell phone should have been suppressed under the exclusionary rule. He consequently
asserts it was error to allow them to be relied upon at trial.
Defendant also acknowledges he made no objection to the prosecutor’s use
of the text messages at trial, but argues the issue is not waived because it would have
been futile to object in light of then-controlling California law (see People v. Diaz (2011)
51 Cal.4th 84, abrogated by the holding in Riley), which specifically approved such
searches without a warrant.
The Attorney General seems to agree with much of defendant’s argument,
with one crucial exception: she asserts that because the police conducted the search of
defendant’s cell phone in good faith and in full compliance with then-applicable
California law, there was no basis to suppress the evidence. The Attorney General has
the better of this issue.
The exclusionary rule is remedial, and its application to suppress evidence
is not warranted in every case where the Fourth Amendment has been violated.
“[T]he exclusionary rule ‘operates as a judicially created remedy designed to safeguard
against future violations of Fourth Amendment rights through the rule’s general deterrent
effect. [Citations.]’ [Citation.] Thus, its ‘‘“prime purpose”’ is to ‘“effectuate”’ the
Fourth Amendment’s guarantee against unreasonable searches or seizures by ‘deter[ring]
future unlawful police conduct.’ [Citation.] Moreover, because the exclusionary rule is a
‘remedial device,’ its application is ‘restricted to those situations in which its remedial
purpose is effectively advanced.’ [Citation.] Thus, application of the exclusionary rule
‘“is unwarranted”’ where it would ‘“not result in appreciable deterrence.”’” (People v.
Willis (2002) 28 Cal.4th 22, 30.) More specifically, “exclusion is proper ‘“only if it can
be said that the law enforcement officer had knowledge, or may properly be charged with
knowledge, that the search was unconstitutional. . . .”’” (Id. at p. 31, italics added.)

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Here, there can be no persuasive claim that the police who searched
defendant’s cell phone could be charged with knowledge that the search was
unconstitutional. To the contrary, at the time of that search, our controlling Supreme
Court precedent expressly allowed such searches. Defendant suggests there were some
indications – in the form of case law in other states, and proposed legislation in this one –
that our Supreme Court’s approval of such searches was on shaky ground, but that is not
an evaluation we require police officers to engage in. Rather, we expect them to follow
the law as it exists. And at the time of defendant’s arrest in this case, our law allowed his
cell phone to be searched. Consequently, there is no basis for applying the exclusionary
rule to deter police officers from engaging in the conduct exhibited by the officers in this
case.
4. Instructional Error
Finally, defendant also claims instructional error. He argues the court erred
by instructing the jury with CALCRIM No. 376, as follows: “If you conclude that the
defendant knew he possessed property and you conclude the property had in fact been
recently stolen, you may not convict the defendant of the kidnapping for robbery, as
charged in count 1, and second-degree robbery, as charged in count[s] 2 and 3, based on
those facts alone. However, if you also find supporting evidence tends to prove his guilt,
then you may conclude that the evidence is sufficient to prove that he committed the
kidnapping for robbery, as charged in count 1, and the second-degree robbery, as charged
in counts 2 and 3. [¶] The supporting evidence need only be slight and need not be
enough by itself to prove guilt. You may consider how, where, and when the defendant
possessed the property along with other relevant circumstances tending to prove his guilt
of kidnapping for robbery, as charged in count 1, and second-degree robbery, as charged
in counts 2 and 3. [¶] Remember that you may not convict the defendant of any crime

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unless you are convinced that each fact essential to the conclusion that the defendant is
guilty of that crime has been proved beyond a reasonable doubt.”
Much like its predecessor, CALJIC No. 2.15, CALCRIM No. 376 is based
on a “long-standing rule of law [that] allows a jury to infer guilt of a theft-related crime
from the fact a defendant is in possession of recently stolen property when coupled with
slight corroboration by other inculpatory circumstances [that] tend to show guilt.”
(People v. Barker (2001) 91 Cal.App.4th 1166, 1173.) However, defendant contends this
instruction denied him due process because it invited the jury to infer he was a
perpetrator of the robbery based on only “slight” evidence, and thus “permitted an
inference of guilt without a rational basis.”
The Attorney General responds that defendant waived this issue by failing
to object to this standard instruction at the time it was given, citing People v Hart (1999)
20 Cal.4th 546. We reject the waiver argument because the rule cited by the Attorney
General applies to claims that the trial court erred by failing to “modify or amplify” a
standard instruction. As explained in Hart, “a party may not complain on appeal that an
instruction correct in law and responsive to the evidence was too general or incomplete
unless the party has requested appropriate clarifying or amplifying language.” (Id. at p.
622.) But that is not what defendant asserts here. He is not arguing that CALCRIM No.
376 should have been modified to fit this case; rather, his claim is that the instruction is
not correct in law because it invites the jury to infer a defendant’s guilt without sufficient
evidentiary basis to support it. Hart does not preclude such a claim being made for the
first time on appeal. Instead, because “the issue raised asserts a violation of substantial
constitutional rights” (People v. O’Dell (2007) 153 Cal.App.4th 1569, 1574), it may be
considered on appeal even if not objected to the trial level.
On the merits, however, defendant’s argument fails. As defendant
acknowledges, other courts have already rejected similar challenges to both CALCRIM
No. 376 and its predecessor, CALJIC No. 2.15. (See, e.g., People v. Parson (2008) 44

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Cal.4th 332, 355-356 [“nothing in the instruction that directly or indirectly addresses the
burden of proof, and nothing in it relieves the prosecution of its burden to establish guilt
beyond a reasonable doubt]; People v. O’Dell, supra, 153 Cal.App.4th at pp. 1573-1574;
People v. Williams (2000) 79 Cal.App.4th 1157, 1173 [“As long as the corroborating
evidence together with the conscious possession could naturally and reasonably support
an inference of guilt, and that inference is sufficient to sustain a verdict beyond a
reasonable doubt, we discern nothing that lessens the prosecution’s burden of proof or
implicates a defendant’s right to due process”].)
Despite that acknowledgment, defendant contends it was error to give the
instruction here because it allowed the jury to improperly “infer from [his] possession of
the stolen tickets that he was a participant in the kidnapping and robbery based only on
slight support in the evidence.” He further contends that because the “slight supporting
evidence was negated by [his] testimony, the instruction should not have been given.”
Defendant’s first point distorts CALCRIM No. 376. The instruction does not allow the
jury to convict based on slight supporting evidence; what it actually does is prevent the
jury from convicting if the only evidence is his knowing possession of the stolen goods.
As explained in People v. Williams, supra, 79 Cal.App.4th at p. 1173 (discussing the
predecessor statute) “CALJIC No. 2.15 correctly prohibits the jury from drawing an
inference of guilt solely from conscious possession of recently stolen property but
properly permits the jury to draw such an inference where there is additional
corroborating evidence.” Defendant is not denied due process by a jury instruction which
limits the jury’s ability to convict him.
And defendant’s second point implies that the mere fact he testified
obligated the court to presume he was telling the truth – and thus to disregard any
contradictory evidence that otherwise tended to support his guilt. Of course there is no
such rule. The mere fact defendant’s testimony offered a different explanation for the

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supporting evidence did not “negate” that evidence. Instead, it was for the jury to decide
whether his testimony was credible.
DISPOSITION
The judgment is reversed to the extent of defendant’s conviction on the
count of aggravated kidnapping, but otherwise affirmed. The case is remanded to the
trial court with instructions to resentence defendant.
RYLAARSDAM, ACTING P. J.
WE CONCUR:
BEDSWORTH, J.
ARONSON, J.

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