Opinion
NOT TO BE PUBLISHED
San Mateo County Super. Ct. No. SC060127
Lambden, J.
A jury found defendant guilty of conspiracy to commit murder (Pen. Code, §§ 182, subd. (a)(1); 187, subd. (a)), conspiracy to commit rape (§§ 182, subd. (a); 261, subd. (a)(2)), kidnapping during the commission of a carjacking (§ 209.5, subd. (a)), kidnapping (§ 207, subd. (a)), and making a criminal threat (§ 422). The jury also found true the gun use allegations as to all counts. Defendant appeals and contends that the record does not contain substantial evidence to support his conspiracy to commit murder and conspiracy to commit rape convictions. He further maintains that his statements to the detectives should have been suppressed and that the lower court committed prejudicial instructional error in refusing to instruct on duress. We are unpersuaded by his arguments and affirm the judgment.
All unspecified code sections refer to the Penal Code.
BACKGROUND
The Charges
An amended information filed March 1, 2006, charged defendant with conspiracy to commit murder (§§ 182, subd. (a)(1); 187, subd. (a)), conspiracy to commit rape (§§ 182, subd. (a)(1); 261, subd. (a)(2)), kidnapping with the intent to commit forcible rape (§ 209, subd. (b)(1)), kidnapping during the commission of a carjacking (§ 209.5, subd. (a)), and making a criminal threat (§ 422). The information alleged as to the first four counts that defendant personally used a firearm (§ 12022.53), and as to the last count that defendant used a firearm (§ 12022.5, subd. (a)).
The matter proceeded to a jury trial.
The Prosecution
The Kidnapping
Jane Doe, who used the name Nancy, moved to San Mateo County from Mexico in January 2004. She began working at Mi Rancho Market in February 2004, and then also worked at a jewelry store located within the market but separately owned by Ricardo Zambrano. In January or February of 2005, Jose Aguilar, another employee of the jewelry store and reportedly Zambrano’s brother, offered Jane Doe a car. She offered to pay for the car, but he refused any payment.
Zambrano sent Jane Doe flowers and indicated that he wanted to pursue a relationship with her. Jane Doe did not want to have a romantic relationship with Zambrano because she saw him as her boss. She told him that she “did not want to have anything with him or with anybody else.”
At the end of March or the beginning of April 2005, Zambrano offered Jane Doe a ride home when her car did not start. Zambrano pulled into a parking lot and attempted to hug and kiss her. She refused his advances and he removed a gun from the glove compartment. He told her that she would be sorry for not loving him and that the same thing would happen to her as happened to a woman named Maricela. Zambrano reported that Maricela used to work with him and was murdered. Zambrano then took Jane Doe to her home.
Shortly thereafter, in April 2005, Aguilar terminated Jane Doe’s employment at the jewelry store. Zambrano told her that he was responsible for her firing.
In May 2005, Aguilar told Jane Doe that Zambrano had been in an accident and was dying. Zambrano spoke with her on the telephone and begged her to come to Fresno where he was. Zambrano claimed that he had become drunk because Jane Doe did not love him. While driving drunk, he claimed to have rolled his truck, causing a co-worker to die in the accident. A woman claiming to be Zambrano’s mother, but later identified as Guadalupe Torrez Perez, spoke with Jane Doe on the phone and told her that Zambrano had been in an accident and that it was Jane Doe’s fault that he was drunk and killed his friend. Jane Doe agreed to come to Fresno to see Zambrano and she brought her cousin with her.
When Jane Doe and her cousin arrived at Zambrano’s home in Fresno, Jane Doe observed that Zambrano was fine. As she was leaving, Zambrano grabbed her arm and said, “You are going to be sorry. What is mine is only mine.”
Teresa Armas lived with her mother, Perez. Armas overheard Zambrano tell her mother that he was planning to bring “Nancy” to Fresno and intended to send defendant to kidnap her. Armas called the Menlo Park police and reported that a woman named Nancy was to be kidnapped.
In the early morning of June 10, 2005, Jane Doe worked at the Mi Rancho Market until 4:00 p.m. As she was leaving and approaching her car, defendant followed her. He had a gun and threatened to kill her if she did not get into her car. Jane Doe recognized the gun as the same one Zambrano had removed from the glove compartment of his car and shown her. Defendant took Jane Doe’s keys, purse, and telephone and then pushed her into the car on the passenger’s side. Defendant got into the car on the driver’s side. When Jane Doe attempted to escape, defendant stopped her and warned, “If you do anything to get out, I am going to kill you.”
After driving around for about 40 to 50 minutes looking for a particular laundry where a van was supposed to be waiting, the car defendant was driving struck another vehicle; defendant did not stop the car. The driver of that vehicle followed defendant, but stopped following when defendant displayed his gun.
Defendant drove toward San Francisco, then across the San Mateo bridge, and then to Fresno. Defendant told Jane Doe that the initial plan had changed because they had spent four days trying to get her. Defendant told her that the current plan was that, once she was taken to Fresno, Zambrano was going to rape her and they were going to kill her and bury her inside a very deep well.
Defendant drove to a creek where he intended to leave Jane Doe bound while he went to a gas station to get gas. Defendant blindfolded Jane Doe and tied her hands and feet and lowered her into a creek. Defendant then brought her back to the car and drove to the gas station to get gas. He warned her not to give any signal or try to escape “because he was going to kill [her] there.” Defendant used Jane Doe’s money to buy gas and water.
Defendant repeatedly told Jane Doe that she was going to be raped by two men and then murdered. Defendant told her that he would receive $5,000 if he kidnapped her and more if he killed her. Jane Doe told him that she would pay him and then move far away. He responded that he could not do that because, if he did not bring her to Zambrano, they were going to kill his son.
About seven or eight hours into the incident and after they arrived in Fresno, Jane Doe asked defendant if she could call her grandmother before he brought her to Zambrano. Defendant agreed and drove to an apartment. Defendant left the car and spoke to a woman in the apartment while Jane Doe remained in the car. Defendant returned laughing, and drove around looking for a public telephone.
Linda Matus testified that defendant was the father of one of her sons. She reported that defendant came to her door on the day of Jane Doe’s kidnapping. When Matus spotted a woman in the car, she asked defendant who the woman in the car was. Defendant told Matus to be quiet and she told him to leave. Defendant did not ask Matus about their son; nor did he ask to see their son, who was in the apartment. Matus said that she saw defendant the next day and he told her that he was with Jane Doe “[b]ecause he was going to get—he was going to get paid,” by Zambrano to “kidnap, rape, and kill her.” Defendant said that he did not “want to do that.”
Defendant took Jane Doe to a residence and told her this was where she was going to be raped and killed. Before arriving there, defendant blindfolded her and tied her hands. Defendant went to the house, and returned to the car because Zambrano was not there.
Defendant drove to another residence, parked, and went to the door. He went inside. A woman, later determined to be Anna Martinez, came to the car and pulled Jane Doe out and took her to a bedroom inside the house. Martinez told Jane Doe that she was saving her life even if they were going to kill her; she brought Jane Doe into the bedroom and Martinez locked the door. Defendant came to the door and asked Martinez to open the door; he complained that no one had given him any money yet. There was a phone in the room and Jane Doe called a family member to pick her up. Martinez took the phone and said, “Come quickly, right away to pick her up. I found her in the street and they want to kill her.”
Martinez opened the bedroom door and defendant entered; he asked Jane Doe to forgive him, kissed her hand, and left in her car. Martinez drove Jane Doe to a gas station where Jane Doe’s relative arrived. Jane Doe and her relative went to the sheriff’s department.
Perez’s Testimony
Perez, who was granted immunity, testified at the trial. She reported that Zambrano was not married, but had two children and lived with the children’s mother. Zambrano told her that he wanted to have a sexual relationship with Jane Doe and asked her to call Jane Doe and pretend to be his mother.
Perez stated that, sometime between May and June 2005, Zambrano asked to use her house. He explained that they were going to kidnap Jane Doe, bring her to Perez’s house, and defendant and Zambrano were going to rape her. Zambrano was then going to kill her. He told her that defendant was going to do the kidnapping and that he got defendant to agree to it because he was going to pay him. He did not mention any threat to defendant’s son.
On June 10, 2005, Perez was going to bring Jane Doe to Perez’s home, and Zambrano stayed at her house from approximately 2:00 to 5:00 p.m. Zambrano left at 5:00 p.m. and called her about one or two hours later and said, “everything went wrong.” Perez picked Zambrano up and took him to where his truck was. She returned home and defendant arrived with a woman between 11:00 p.m. and midnight. Defendant came to the door and knocked, but Perez did not answer the door. Defendant left.
Defendant’s Arrest
On July 16, 2005, an officer spotted Jane Doe’s car, which had been reported stolen. He stopped the car and arrested defendant who was driving the car. Fresno Police Detective Chris Serrano interviewed defendant. Defendant told him that “they” forced him “to go pick up a girl over there.” He reported that Zambrano threatened him that, if he did not do it, he was going to kill his son. He said that Zambrano showed him where the victim was working at a little market. Defendant declared that he told Jane Doe when he took her that he did not want to do anything to her, and claimed that he was just trying to protect his son.
Menlo Park Police Detective William Massey drove to Fresno and spoke to defendant. Defendant reported that he did not want to bring the woman to Zambrano because she was nice. At first, according to defendant, Zambrano wanted defendant to kill Jane Doe, but defendant said that he refused to do that. Zambrano then told him that he wanted him to bring the woman to him. Defendant said that he was not doing it for the money; rather, he did it because Zambrano threatened to kill his son if he did not do it. He reported that his first conversation with Zambrano about the crime was one month earlier when they both went to the market and Zambrano pointed the victim out.
The day after the kidnapping, Zambrano showed up at defendant’s apartment and gave him $1,000. Defendant said that he did not want the money and returned the gun to Zambrano. Zambrano told him that defendant’s son could have Jane Doe’s car.
An Informant’s Testimony
Juan Carlos Posadas was in custody with defendant and was housed in a cell across from defendant. Posadas provided information to the police on a regular basis in exchange for money or modified sentences. In the present case, the prosecution had agreed to write letters or make phone calls to prison officials outlining Posadas’s cooperation so that he could be housed in an appropriate facility. Posadas testified that defendant told him that he had kidnapped a woman for money. Defendant disclosed to Posadas that he was to kidnap the woman and give her to someone else, but he had “an idea that the other guy was going to—going to kill her.” Defendant asked Posadas if he could get rid of a female witness, because his troubles would disappear if she disappeared.
The Defense
Defendant testified that he met Zambrano through Martinez at the end of May 2005. While at Martinez’s house, Zambrano told him he wanted him to go to the Bay Area to kill a girl. In later conversations, Zambrano explained that he wanted defendant to kidnap her and take her to a house in Fresno where defendant and he would rape and kill her. Defendant told Zambrano that he was crazy and talking to the wrong person. Zambrano repeatedly told defendant to kidnap Jane Doe, but defendant maintained that he continued to refuse Zambrano’s requests.
Defendant testified that Martinez told him that Zambrano was a very wealthy, dangerous, and powerful man who was always armed. Subsequently, Zambrano told defendant that he knew where he lived and that he would kill his son if he did not do what he asked. Defendant said that he agreed to kidnap Jane Doe, but refused to rape or murder her.
About one week prior to the kidnapping, defendant went with Zambrano so that Zambrano could point out Jane Doe to him. Zambrano gave defendant a gun. Defendant admitted that he threatened to kill Jane Doe to get her to cooperate. He asserted, however, that he never intended to rape or kill her. He declared that it took him about 10 hours to get to Fresno because it was a difficult decision to deliver her to Zambrano.
Defendant claimed that he did not want to deliver Jane Doe and decided to check on his son rather than go directly to Perez’s house. When the mother of his child saw him with another woman, she cussed him out and sent him away. Defendant eventually took Jane Doe to Martinez’s house so she could use the telephone to call her grandmother. He denied asking the jailhouse informant if he knew how to make witnesses disappear.
The Verdict and Sentence
On March 15, 2007, a jury found defendant guilty of conspiracy to commit murder (§§ 182, subd. (a)(1); 187, subd. (a)), conspiracy to commit rape (§§ 182, subd. (a); 261, subd. (a)(2)), kidnapping during the commission of a carjacking (§ 209.5, subd. (a)), and making a criminal threat (§ 422). The jury found defendant not guilty of kidnapping with intent to commit rape (§ 209, subd. (b)(1)), but guilty of the lesser included offense of kidnapping (§ 207, subd. (a)). The jury also found true the gun use allegations as to all counts.
On June 8, 2007, the trial court sentenced defendant to 25 years to life for the conspiracy to commit murder charge with a consecutive term of 10 years for the gun use. The sentences on the remaining counts were stayed pursuant to section 654.
Defendant filed a timely notice of appeal.
DISCUSSION
Defendant maintains that substantial evidence did not support his conspiracy convictions. He also contends that the lower court should have suppressed his statements made to the detectives after his arrest. Additionally, he asserts that the lower court committed prejudicial error in refusing to instruct on duress. We consider each of his contentions.
I. Substantial Evidence Supported the Conspiracy Convictions
A. Standard of Review and the Elements of Conspiracy
Defendant contends that the due process clause of the Fourteenth Amendment of the United States Constitution was violated because substantial evidence did not support his convictions for conspiracy to commit murder and conspiracy to commit rape. The due process clause of the Fourteenth Amendment is violated when the evidence is insufficient to support a finding of guilt beyond a reasonable doubt. (Jackson v. Virginia (1979) 443 U.S. 307, 317-320.) “But this inquiry does not require a court to ‘ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.’ [Citation, emphasis added.] Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (Id. at pp. 318-319.)
Accordingly, our sole function is to determine if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (People v. Bolin (1998) 18 Cal.4th 297, 331.) The standard of review is the same in cases where the prosecution relies primarily on circumstantial evidence. (People v. Rodriguez (1999) 20 Cal.4th 1, 11.) “Reversal . . . is unwarranted unless it appears ‘that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].’ ” (People v. Bolin, supra, at p. 331, quoting People v. Redmond (1969) 71 Cal.2d 745, 755.)
“ ‘A conviction of conspiracy requires proof that the defendant and another person had the specific intent to agree or conspire to commit an offense, as well as the specific intent to commit the elements of that offense, together with proof of the commission of an overt act “by one or more of the parties to such agreement” in furtherance of the conspiracy.’ ” (People v. Jurado (2006) 38 Cal.4th 72, 120; see also People v. Russo (2001) 25 Cal.4th 1124, 1131.) The specific intent element of conspiracy “ ‘ “divides logically into two elements: (a) the intent to agree, or conspire, and (b) the intent to commit the offense which is the object of the conspiracy. . . . To sustain a conviction for conspiracy to commit a particular offense, the prosecution must show not only that the conspirators intended to agree but also that they intended to commit the elements of that offense.” ’ ” (People v. Swain (1996) 12 Cal.4th 593, 600; see People v. Petznick (2003) 114 Cal.App.4th 663, 680-681 [“for defendant to be guilty of the crime of conspiracy to commit murder, he had to have been one of the participants who harbored the specific intent to kill”].)
B. Conspiracy to Commit Murder
Defendant argues that the evidence in the record did not support a finding that he agreed to kill Jane Doe. Murder is the “unlawful killing of a human being . . . malice aforethought.” (§ 187, subd. (a).)
Here, the trial court instructed the jury regarding the crime of conspiracy to commit murder. The court instructed in relevant part as follows: “To prove that the defendant is guilty of this crime, the People must prove that: [¶] 1. The defendant intended to agree and did agree with Ricardo Zambrano to intentionally and unlawfully kill; [¶] 2. At the time of the agreement, the defendant and one or more of the other alleged members of the conspiracy intended that one or more of them would intentionally and unlawfully kill; [and] [¶] 3. The defendant, or Ricardo Zambrano, or both of them committed at least one of the following over acts alleged to accomplish the killing . . . .”
After being instructed, the jury found that defendant intended to agree and did agree with Zambrano to intentionally and unlawfully kill Jane Doe. Defendant challenges this verdict, arguing the evidence in the record is insufficient.
Defendant maintains that the evidence may support a finding of aiding and abetting, but it does not support a finding that he kidnapped Jane Doe with the intent that she would be killed. Defendant asserts that the record shows that he told Zambrano that he would not kill Jane Doe when Zambrano first offered him money to kill her. Defendant claims that he agreed only to take Jane Doe to Perez’s house, and that he never expressly agreed to the killing of her. The evidence established, according to defendant, that he only kidnapped Jane Doe because of Zambrano’s alleged threats to harm his son if he did not participate. He contends that his statements to the detectives on the night of his arrest, Jane Doe’s testimony that he told her he could not kill her, and his conduct during the kidnapping all established his lack of consent to kill Jane Doe.
Although the record contains some evidence that defendant did not have the requisite intent, the record contained ample evidence that defendant acted with the specific intent of delivering Jane Doe to Zambrano so that he could kill her. Evidence that defendant kidnapped Jane Doe for the money rather than because of any alleged threat to his son included the following: Perez’s testimony that Zambrano told her that he had paid defendant to kidnap Jane Doe and take her to Perez’s house in Fresno where defendant and he would rape and kill her. Jane Doe testified that defendant repeatedly told her that the plan was, once he took her to Fresno, for Zambrano to rape and kill her. Defendant told Jane Doe that he would receive $5,000 if he kidnapped her and more if he killed her. Matus, the mother of defendant’s son, reported that defendant told her that he was with Jane Doe “[b]ecause he was going to get—he was going to get paid” by Zambrano to “kidnap, rape, and kill her.”
Defendant stresses that he was attempting to avoid having to deliver Jane Doe to Zambrano by taking so long to get to Fresno, but the delay was partially due to his being unable to find the laundry location, taking a detour to leave Jane Doe in a creek prior to getting gas, and becoming involved in a hit-and-run vehicular accident. More significantly, he did take Jane Doe to Perez’s residence where he believed Zambrano would be waiting to rape and kill her. When he arrived at Perez’s home, defendant told Jane Doe that this was where she was going to be raped and killed. Defendant failed to deliver Jane Doe, not because he abandoned the plan, but because Perez did not answer the door and Zambrano was no longer there.
Additionally, a jailhouse informant testified that defendant told him that he had kidnapped a woman for money. Defendant disclosed to the informant that he was to kidnap a woman and give her to someone else, but he had “an idea that the other guy was going to—going to kill her.”
Defendant stresses that Zambrano, not he, was the person who was going to kill Jane Doe. However, defendant is not exempt from liability simply because he was not the actual person who was going to commit the murder. “ ‘ “ ‘In contemplation of law the act of one [conspirator] is the act of all. Each is responsible for everything done by his confederates, which follows incidentally in the execution of the common design as one of its probable and natural consequences . . . .’ ” ’ [Citations.] Thus, ‘[i]t is not necessary that a party to a conspiracy shall be present and personally participate with his co-conspirators in all or in any of the overt acts.’ [Citation.]” (People v. Morante (1999) 20 Cal.4th 403, 417.) Here, as already emphasized, the record contained substantial evidence that defendant planned the kidnapping with Zambrano and defendant agreed to and intended to deliver Jane Doe to Zambrano so that he could rape and kill her.
Accordingly, we conclude that the record contains substantial evidence supporting the jury’s finding that defendant intended to agree and did agree to kidnap Jane Doe to have Zambrano murder her.
C. Conspiracy to Commit Rape
Defendant maintains the record contains insufficient evidence to support his conviction for conspiracy to commit rape. He asserts there was no evidence that he intended to rape Jane Doe and the jury’s not guilty verdict on the kidnapping for purposes of rape supports this conclusion. The jury found defendant was guilty of the lesser included crime of kidnapping rather than kidnapping for the purposes of rape.
The reason for the jury’s finding defendant guilty of kidnapping rather than kidnapping for the purposes of rape is unclear, but the court’s instruction on kidnapping for the purpose of rape appears to require that defendant, himself, intended to rape Jane Doe. The jury could have found that the evidence did not support such a finding since, other than Zambrano’s statement, there was little evidence that defendant intended to rape Jane Doe.
The trial court gave CALCRIM No. 1203, which stated as follows: “The defendant is charged . . . with kidnapping for the purpose of rape. [¶] To prove that the defendant is guilty of this crime, the People must prove that: [¶] 1. The defendant intended to commit rape; [¶] 2. Acting with that intent, the defendant took, held, or detained another person by using force or by instilling a reasonable fear; [¶] 3. Using that force or fear, the defendant moved the other person or made the other person move a substantial distance; [¶] 4. The other person was moved or made to move a distance beyond that merely incidental to the commission of a rape; [¶] and [¶] 5. The other person did not consent to the movement. . . . [¶] . . . [¶] To be guilty of kidnapping for the purpose of rape, the defendant does not actually have to commit the rape. . . .”
In contrast, the instructions were clear that defendant could be guilty of conspiracy to commit rape even if he, himself, did not intend to rape Jane Doe. The evidence, as discussed above, amply supported a finding that defendant kidnapped Jane Doe for the purpose of delivering her to Zambrano so that he could rape and kill her. The evidence established that defendant told Jane Doe and the mother of his children that Zambrano was going to rape Jane Doe. Further, as already stressed, defendant drove Jane Doe to Perez’s house where Zambrano was to be waiting to rape and kill her. We therefore conclude that substantial evidence supported the jury’s finding that he conspired to commit rape.
II. Defendant’s Statements to the Detectives
Defendant argues that the lower court erred when it denied his motion to suppress his statements to the detectives because they violated his right against self-incrimination. He claims that his confession was involuntary and therefore inadmissible because it was elicited by the promise by Detective Serrano that he was trying to help defendant “get out of this, this whole big old mess . . . .” Serrano told defendant that as long as defendant was honest with him, he could help him out, and thereafter defendant admitted to kidnapping Jane Doe. Moreover, Serrano told him that the police were really looking at Zambrano, not him.
A. Standard of Review
The Fifth and Fourteenth Amendments of the United States Constitution prohibit the introduction of a confession or admission in a criminal trial unless the prosecution proves by a preponderance of the evidence that the defendant’s confession was voluntary. (Lego v. Twomey (1972) 404 U.S. 477, 487-489; People v. Weaver (2001) 26 Cal.4th 876, 920.) On review, we defer to the trial court’s factual findings if they are supported by substantial evidence, but review de novo the ultimate question of whether a waiver was voluntary. (People v. Holloway (2004) 33 Cal.4th 96, 114.) Even if the lower court errs in failing to find the defendant’s statements wholly involuntary, the error is subject to harmless error analysis under the beyond-a reasonable-doubt standard of Chapman v. California (1967) 386 U.S. 18. (See, e.g., People v. Neal (2003) 31 Cal.4th 63, 86.)
B. Harmless Beyond a Reasonable Doubt
Even if we were to presume that the lower court erred in admitting defendant’s statements to the detectives, we conclude defendant suffered no prejudice as the statements were harmless beyond a reasonable doubt. Defendant argues that, absent these statements to the detectives, the prosecution could not have argued that defendant was a liar and the prosecution would not have been able to present any evidence that defendant accepted any money from Zambrano.
The record does not support defendant’s latter argument that the prosecution could not have presented any evidence of defendant’s acceptance of money for the kidnapping without defendant’s statements to the detectives. Jane Doe testified that defendant told her that Zambrano was going to give him $5,000 for kidnapping her. She also explained that defendant had told Martinez to open the locked door to let him get her because he had not been paid yet. Further, Matus, the mother of defendant’s son, reported that defendant told her that he was with Jane Doe “[b]ecause he was going to get—he was going to get paid” by Zambrano to “kidnap, rape, and kill her.” Perez testified that Zambrano told her that he had paid defendant to kidnap Jane Doe and take her to Perez’s house in Fresno where defendant and he would rape and kill her. Thus, given the testimony by other witnesses that defendant was being paid by Zambrano for kidnapping Jane Doe, defendant’s statements to the detectives that he was paid for kidnapping Jane Doe were harmless beyond a reasonable doubt.
With regard to defendant’s credibility, defendant maintains that if the prosecution had not been able to argue that he lied to the detectives about his name, date of birth, and nickname, the jury would have believed his testimony that he kidnapped Jane Doe only because of Zambrano’s threats to his son’s well-being. He claims that his credibility was of particular importance because the prosecutor stressed that defendant’s statements showed his “disconnect with reality” and that to believe his version of what happened was to “almost engage in a fantasy.”
Evidence other than defendant’s untruthful statements to the detective established that defendant’s rendition lacked credibility. Although defendant claimed he kidnapped Jane Doe because of the threat to his son’s life, on the day of the kidnapping he stopped by the house where his son lived and did not ask to see his son; nor did he ask about his son’s welfare. Further, when he saw his son’s mother the following day, he said nothing about any possible danger to his son, despite his failure to deliver Jane Doe to Zambrano. He told Matus, his son’s mother, that he was with Jane Doe because he was going to get paid to “kidnap, rape, and kill her.” Additionally, Perez testified that Zambrano told her that he had paid defendant to get defendant’s help; he never said that he had threatened to harm defendant’s son to get defendant’s help. Thus, other evidence in the record indicated that defendant’s rendition was not truthful.
Further, as already discussed, the record contained evidence other than defendant’s own statements that he kidnapped Jane Doe in exchange for money and with the intent to have Zambrano rape and murder her. Jane Doe testified that defendant forced her at gun point into her car and that he repeatedly told her that he was delivering her to Zambrano where she would be raped and killed. She reported that he told her that he was going to be paid for delivering her to Zambrano.
Accordingly, any error regarding the admission of defendant’s statements to the detectives was harmless beyond a reasonable doubt.
III. The Instructions
A. The Lower Court’s Refusal to Instruct on Duress
Defendant contends that the lower court erred when it refused his instruction on duress (CALCRIM No. 3402). He claims that his crimes were committed when he was under duress because Zambrano had threatened to harm his son if he did not kidnap Jane Doe and bring her to Zambrano.
Judicial Council of California Criminal Jury Instructions (2006) CALCRIM No. 3402 states in relevant part: “The defendant is not guilty of _______ <insert crime[s]> if (he/she) acted under duress. The defendant acted under duress if, because of threat or menace, (he/she) believed that (his/her/[or] someone else’s) life would be in immediate danger if (he/she) refused a demand or request to commit the crime[s]. The demand or request may have been express or implied. [¶] The defendant’s belief that (his/her/[or] someone else’s) life was in immediate danger must have been reasonable. When deciding whether the defendant’s belief was reasonable, consider all the circumstances as they were known to and appeared to the defendant and consider what a reasonable person in the same position as the defendant would have believed. [¶] A threat of future harm is not sufficient; the danger to life must have been immediate. [¶] The People must prove beyond a reasonable doubt that the defendant did not act under duress. If the People have not met this burden, you must find the defendant not guilty of _______ <insert crime[s]>.”
“A defendant, upon proper request . . ., has a right to an instruction to direct the jury’s attention to evidence from which a reasonable doubt of his guilt could be inferred.” (People v. Jeffers (1996) 41 Cal.App.4th 917, 924-925.) “In determining whether a requested instruction must be given, the trial court must first evaluate the evidence to determine if the theory proffered by the defendant is supported by substantial evidence. Only if the theory is supported by substantial evidence is the refusal to give a requested instruction erroneous.” (People v. Randolph (1993) 20 Cal.App.4th 1836, 1841; see also People v. Barrick (1982) 33 Cal.3d 115, 132, superseded by statute on another issue.) “ ‘ “Substantial evidence is evidence sufficient to ‘deserve consideration by the jury,’ that is, evidence that a reasonable jury could find persuasive.” ’ ” (People v. Cole (2004) 33 Cal.4th 1158, 1215.) “The testimony of a single witness, including the defendant, can constitute substantial evidence requiring the court to instruct on its own initiative.” (People v. Lewis (2001) 25 Cal.4th 610, 646.) The trial court has a corollary duty “ ‘to refrain from instructing on principles of law which not only are irrelevant to the issues raised by the evidence but also have the effect of confusing the jury or relieving it from making findings on relevant issues.’ [Citation.]” (People v. Saddler (1979) 24 Cal.3d 671, 681; People v. McNeill (1980) 112 Cal.App.3d 330, 339.)
Section 26 provides in pertinent part: “All persons are capable of committing crimes except those belonging to the following classes: [¶] . . . [¶] “Six—Persons (unless the crime be punishable with death) who committed the act or made the omission charged under threats or menaces sufficient to show that they had reasonable cause to and did believe their lives would be endangered if they refused.” Duress may arise when the threat is to another. (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 100 (Coffman).) Duress negates the intent element of the charged crime such that the defendant need only raise a reasonable doubt that he or she acted voluntarily. (People v. Heath (1989) 207 Cal.App.3d 892, 900.) Thus, defendant contends that he could not form the specific intent necessary for conspiracy since he acted under duress.
The immediacy of the threat or menace is central to the duress defense. Threats of future harm do not diminish criminal culpability. (People v. Bacigalupo (1991) 1 Cal.4th 103, 125, judgment vacated on other grounds by Bacigalupo v. California (1992) 506 U.S. 802.) In order to establish the duress defense, the threat or menace “[must] be accompanied by a direct or implied demand that the defendant commit the criminal act charged.” (People v. Steele (1988) 206 Cal.App.3d 703, 706.)
When acting out of duress, the defendant does not have the time to form criminal intent because of the immediacy and imminency of the threatened harm. (People v. Heath, supra, 207 Cal.App.3d at p. 901.) In contrast, the necessity defense, which the trial court in the present case did give, contemplates a threat in the immediate future. (Ibid.) With the necessity defense, the defendant has the time, however limited, to consider alternative courses of conduct. (Ibid.)
The trial court gave CALCRIM No. 3403, an instruction on necessity, which was as follows: “The defendant is not guilty of count 1, 2, 3 or 4 if he acted because of legal necessity. [¶] In order to establish this defense, the defendant must prove that: [¶] 1. He acted in an emergency to prevent a significant bodily harm or evil to himself or someone else; [¶] 2. He had no adequate legal alternative; [¶] 3. The defendant’s acts did not create a greater danger than the one avoided; [¶] 4. When the defendant acted, he actually believed that the act was necessary to prevent the threatened harm or evil; [¶] 5. A reasonable person would also have believed that the act was necessary under the circumstances; [¶] AND [¶] 6. The defendant did not substantially contribute to the emergency. [¶] The defendant has the burden of proving this defense by a preponderance of the evidence. This is a different standard of proof than proof beyond a reasonable doubt. To meet the burden of proof by a preponderance of the evidence, the defendant must prove that it is more likely than not that each of the six listed items is true.”
In the present case, we agree with the trial court that the record does not contain any evidence that defendant reasonably believed that the threats to his son were both imminent and immediate at the time he had kidnapped Jane Doe. As already stressed, “ ‘The common characteristic of all the decisions upholding [a duress defense] lies in the immediacy and imminency of the threatened action: each represents the situation of a present and active aggressor threatening immediate danger; none depict a phantasmagoria of future harm.’ ” (People v. Vieira, supra, 35 Cal.4th at p. 290.)
The California Supreme Court has left open the question whether duress may be a defense to a conspiracy to commit murder. (People v. Vieira (2005) 35 Cal.4th 264, 290.) We need not reach this issue since we conclude the record did not support giving a duress instruction.
The record does not show that defendant’s son was under any immediate danger of harm. Defendant testified that Zambrano had threatened to harm his child and there was evidence that Zambrano may have harmed others in the past, but there was no evidence that Zambrano or anyone under Zambrano was watching defendant or his son. Defendant maintains that the evidence of duress was that he told Jane Doe that he was kidnapping her because of Zambrano’s threat to harm his son. Further, Martinez told Jane Doe that she was aware of Zambrano’s threat to kill defendant’s son. This evidence indicates that Zambrano threatened to harm or kill defendant’s son if defendant did not kidnap Jane Doe, but there is absolutely no evidence that Zambrano’s threat was both imminent and immediate at the time defendant was committing his crimes.
Defendant also cites the evidence that it took him so long to get to Fresno as supporting a duress instruction. This argument makes little sense. Indeed, if defendant believed his son was in immediate danger, it would seem that he would try to get to Fresno as quickly as possible.
Indeed, the facts in the record contradict defendant’s assertion that his son was under immediate threat of harm. The evidence indicates that defendant merely told Jane Doe that he had to kidnap her otherwise “they were going to kill his son.” He did not tell Jane Doe that “they” were watching him or watching his son or that his son was under any current threat. In fact, defendant never makes any time reference. Moreover, once the plot failed and defendant never delivered Jane Doe to Zambrano, there is no evidence that defendant rushed off to protect his son or that he showed any particular concern for his son’s welfare. Rather, following the kidnapping and his failure to deliver Jane Doe to Zambrano, defendant received $1,000 from Zambrano, returned the gun to Zambrano, and kept Jane Doe’s automobile reportedly because Zambrano told him that his son could have it.
To support his argument that the evidence supported a duress instruction, defendant cites his testimony that Zambrano told him that he knew where defendant lived and that he would kill defendant’s son if he did not kidnap Jane Doe. Further, defendant notes that he and others testified that Zambrano always carried a gun. Defendant also asserts that Zambrano was within a few miles of defendant’s residence and could easily have carried out his threat to kill. Additionally, defendant points to his testimony that he had seen Zambrano near his house in the weeks leading up to the kidnapping.
None of the foregoing evidence, however, established anything more than a general threat of harm. Defendant did not testify as to any immediate or imminent threat. Moreover, the record establishes that defendant drove to the home of his son’s mother and she did not indicate that their son was in any immediate danger. Defendant had sufficient time to go to the police from the time he first agreed to kidnap Jane Doe until the time he was supposed to take Jane Doe to Perez’s home.
Defendant cites a number of cases and compares and distinguishes the facts of the present case with those of the cited cases. (See, e.g., People v. Heath, supra, 207 Cal.App.3d 892, 901-902 [the defendant’s testimony that person held a gun to the defendant’s head and threatened to kill him if he did not commit burglary was evidence of duress]; People v. Lo Cicero (1969) 71 Cal.2d 1186, 1189-1191 [the court erred in excluding evidence of the threats made, but the error was harmless because the defendant did not establish duress since the defendant testified that he was not afraid that he would be harmed and provided no evidence of a threat of imminent violence], disapproved on another point in Curl v. Superior Court (1990) 51 Cal.3d 1292, 1301, fn. 6; People v. Pena (1983) 149 Cal.App.3d Supp. 14 [the defendant was entitled to necessity or duress instruction even when the threat concerned a third person], criticized for confusing the necessity defense with a duress defense in People v. Heath, supra, at pp. 899-900; People v. Graham (1976) 57 Cal.App.3d 238 [the trial court erred in instructing that the defendant had to prove by a preponderance of evidence that the robbery was committed under duress when the acquaintance pulled a gun on him and told him to rob the store or his girlfriend and her child would be killed because the defendant only had to raise reasonable doubt that he had acted in exercise of his free will]; and People v. McKinney (1986) 187 Cal.App.3d 583 [no evidence of duress defense to assault with deadly weapon charge when inmates who had threatened the defendant were not present at time of the assault].) We need not consider the manner in which the facts of the present case differ or are similar to these cases cited by defendant, because the record before us simply does not support an instruction on duress. The record is devoid of any evidence indicating that defendant did not have time to go to the police or that Zambrano’s threat to kill defendant’s son was both imminent and immediate at the time defendant decided to and did kidnap Jane Doe.
Defendant claims that he did not call the police because he did not think the police would believe or help him, and argues this belief was supported by the fact that Perez and her daughter called both the Menlo Park and Fresno police departments to report the crime, but the police did not arrest Zambrano. This argument merits little discussion. Defendant’s assertion that the police would not believe him does not explain his failure to even try. The record establishes that, despite having plenty of opportunity to contact the police, defendant made no attempt to report the crime to the police.
Accordingly, we conclude that the trial court did not err in refusing to provide the duress instruction.
B. The Trial Court’s Refusal to Instruct that the Evidence of Duress Was Relevant to Defendant’s Mental State
Defendant requested an instruction based on the language in Coffman, supra, 34 Cal.4th 1, a case where the female defendant sought to introduce evidence of battered woman syndrome, arguing that she participated in the offenses with her husband because of fear that he would harm her or her son. (Id. at p. 98.) In the present case, defendant asked the court to consider adding the language from Coffman to the instruction on specific intent. The court denied the request. Defendant asserts that the court’s failure to instruct that evidence of duress was relevant to defendant’s mental state was error. Defendant argues that a pinpoint instruction on the applicability of duress to defendant’s mental state and intent should have been provided.
In Coffman, supra, 34 Cal.4th 1, the Supreme Court stated that the instruction in the case before it adequately informed the jury that it could consider the evidence of battered woman syndrome in determining whether the wife formed the mental state or specific intent required for the charged offenses. (Id. at p. 99.) Defendant contends that the Coffman court did not hold that substantial evidence of an immediate threat was required in order to instruct the jury that evidence of duress was relevant to intent. Defendant, however, ignores that the Coffman court emphasized that the defense of duress can only arise when the evidence supports a finding that the threat was imminent and immediate. (Ibid.) The court explained that in the case before it: “The instruction on threats of harm to a third person was also properly refused under the evidence presented. Because the defense of duress requires a reasonable belief that threats to the defendant’s life (or that of another) are both imminent and immediate at the time the crime is committed [citations], threats of future danger are inadequate to support the defense. Because any danger to Coffman’s child (who was living in Missouri) was not shown to be immediate, the trial court correctly rejected Coffman’s proposed instruction on this point.” (Id. at p. 100, italics added.)
In his reply brief, defendant asserts: “On the contrary, in the Coffman case, the court specifically instructed the jury that if they believed the threats were of future danger and therefore not sufficiently imminent to satisfy the defense of duress, the jury could nonetheless consider those threats in determining ‘whether or not the defendant had formed the intent or mental state required for the crimes charged.’ (Coffman, supra, 34 Cal.4th at p. 98.)”
As already discussed, substantial evidence did not support the defense of duress. Therefore, the trial court did not err in refusing to give the jury an instruction that pinpointed the duress defense.
The People contend that defendant cannot challenge the lower court’s refusal to give a pinpoint instruction because he did not provide the court with an actual proposed instruction. We need not consider the issue of waiver since we conclude the lower court did not err in refusing to give this instruction.
DISPOSITION
The judgment is affirmed.
We concur: Haerle, Acting P.J., Richman, J.
The Supreme Court, when reviewing the foregoing and other instructions given by the trial court, concluded that “the instructions given here correctly and (with one exception) adequately informed the jury that it could consider the evidence of battered woman syndrome in determining whether Coffman had formed the mental state or specific intent required for the charged offenses . . . .” (Coffman, supra, 34 Cal.4th at p. 99, fn. omitted, italics added.) The present case does not concern the battered woman syndrome and, as already stressed, the Supreme Court expressly affirms that the defense of duress can only arise when the evidence supports a finding that the threat was imminent and immediate. (Id. at pp. 99-100.)