Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of San Diego County, No. SCD207302, Charles G. Rogers, Judge.
McIntyre, J.
A jury convicted Juan Francisco Gonzalez and Jorge Rojas Lopez of kidnapping for ransom and found true the allegation that the victim Eduardo Gonzalez Tostado, a wealthy Mexican businessman who lived in Chula Vista, suffered bodily harm when kidnapped and held for eight days. (We refer to the victim as "Tostado" to differentiate him from defendant Gonzalez.) The jury also convicted Lopez of a firearm possession charge. The court sentenced Gonzalez to life without the possibility of parole; Lopez received a sentence of life without the possibility of parole plus two years.
This appeal focuses on the jury finding that Tostado suffered bodily harm within the meaning of Penal Code section 209, subdivision (a). (Undesignated statutory references are to the Penal Code.) Absent the finding that Tostado suffered bodily harm, defendants would be subject to a sentence of life with the possibility of parole. (§ 209, subd. (a).) Defendants challenge the sufficiency of the evidence, arguing the victim suffered no harm beyond the trivial injuries he received during his capture. They also assert that the modified version of CALCRIM No. 1202 read to the jury was an inaccurate statement of the law regarding kidnapping for ransom. We reject defendants' arguments and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Because defendants challenge only the jury instruction and finding that Tostado suffered bodily harm, this summary focuses primarily on the circumstances surrounding the abduction and the discussions regarding CALCRIM No. 1202.
The plot to kidnap Tostado for ransom played on his apparent appreciation of good-looking women. David Valencia, a person Tostado believed to be a friend, introduced him to "Nancy, " on the afternoon of June 7, 2007. Tostado met with Nancy late the next afternoon, followed her to what she represented as her aunt's house in Chula Vista, and agreed to return in a short time to take her to dinner in Tijuana. After picking up a package of condoms and the liquor Nancy requested, Tostado returned to join her for drinks at the house. When Nancy opened the door and Tostado stepped inside, two men tackled him from behind.
One of the attackers had his arm around Tostado's neck, and the other had an arm around his leg. At least two other men came down the hall three seconds later dressed like police, wearing ski masks, and carrying long black rifles. They started to hit him with the back of a rifle, got him on the ground, and continued hitting him in the head and on his back and legs. Tostado started to get up, but the men began shooting him with tasers. After Tostado was on the ground and no longer resisting, he felt one big blow on the back of the head. He was not sure if he lost consciousness. The men laughed when they discovered the taser had caused Tostado to urinate and defecate on himself. They taped Tostado's ankles, handcuffed his wrists, and dragged him to the back of the house where they confined him in a small closet for eight days.
The prosecutor asked Tostado on direct examination, "Other than that first day, ... were you mistreated? Were you hit by any of the kidnappers?" Tostado responded, "After that, no." However, Tostado testified that he remained blindfolded, shackled, handcuffed, and confined in a closet.
Tostado testified about the photographs taken of his injuries on the day of his release, including bruises, an indentation on the bridge of his nose, marks on his wrists from the handcuffs, and burns on his back from the taser. The following exchange took place during cross-examination by the defense counsel for Gonzalez:
"[COUNSEL]: Now, according to your testimony, those were the only injuries that you received, correct?
"[TOSTADO]: Yes.
"[COUNSEL]: Once you were subdued, according to your testimony, you were treated well. Would that be a correct statement?
"[TOSTADO]: You can say so."
Tostado described interactions with at least five individuals in the course of his confinement. They periodically threatened him with death if he tried to escape, did something stupid, or failed to pay the money they demanded. Three men he referred to as Morro, Asere and Tio guarded and fed him. The men who described themselves as "Boss No. 1" and "Boss No. 2" seemed to be calling the shots and eventually demanded $1 million from Tostado and his family. When Boss No. 1 and Boss No. 2 learned that the family was having trouble getting the money, they told Tostado to tell his family to keep working because they could not afford to let him go for so little.
Unbeknownst to the kidnappers, Tostado's wife and cousin Sergio contacted the FBI shortly after Tostado's disappearance. The FBI analyzed subsequent phone contacts between the kidnappers and the family, and ultimately supervised the ransom drop. Although most of the $193,000 ransom was never recovered, Tostado was rescued and several of the kidnappers arrested, including Lopez and Gonzalez. Tostado identified the voices of Lopez and Gonzalez as those of Boss No. 1 and Boss No. 2.
FBI Agent Lauren Wood was present when Tostado was released on June 16, 2007. She described his emotional state as "very distraught, shaking, on the verge of crying, just hysterical, but at the same time very relieved." She described an indentation and bruise mark on the bridge of Tostado's nose, small puncture wounds on his back that had started to scab over, and a scar on his right shoulder. She also observed slight bruising on Tostado's wrists where the handcuffs appeared to have been tightened. Sergio Tostado saw his cousin the next day. He also observed the scars on Tostado's back and the mark from the blow to the bridge of his nose.
Forensic pathologist Steven Charles Campman testified about taser injuries in general, then turned to photographs of the injuries to Tostado. He described the paired and round marks on Tostado as classic taser injury. In addition, the beginning of scarring was consistent with infliction on June 8, 2007. However, he considered the actual skin injury to Tostado to be "trivial or insignificant." Dr. Campman also testified that tasers overwhelm the nervous system and disrupt muscle control. He stated that repeated, prolonged application could cause or contribute to death, an opinion disputed by the taser manufacturer. Further investigation by San Diego police showed that one of the tasers recovered from the house where Tostado was confined had been fired 10 times in less than a minute on June 8, 2007.
The court and counsel discussed jury instructions and thereafter placed modifications, arguments and objections on the record. As to CALCRIM No. 1202, the court stated that the parties had reached consensus on additions to the definition of bodily harm "after arguing several issues...." The prosecution added language stating that great bodily injury or death was not required; the defense added language explaining that trivial injury was insufficient to constitute bodily harm within the meaning of the statute. After reading the modified language regarding bodily harm, the court asked whether any party objected to CALCRIM No. 1202 "in the form of which it is now to be given." The prosecutor and both defense counsel responded, "No." Thereafter, the court instructed the jury as follows on kidnapping for ransom:
"Each defendant is charged in count 2 with kidnapping for the purpose of ransom that resulted in bodily harm. To prove that each defendant is guilty of this crime, the People must prove that, one, the defendant kidnapped, abducted, seized, confined, inveigled, enticed or decoyed someone.
"Two, when the defendant acted, he intended to hold or detain the person.
"And three, the defendant did so for ransom or to get money or something valuable.
"It is not necessary that the person be moved for any particular distance.
"Inveigled is further defined as to lure or entice or lead astray by false representations or promises or other deceitful means. Kidnapping by inveiglement may be accomplished when one deceives another and, by his or her deceptive acts, induces the other into confinement.
"Kidnapping by inveiglement may be accomplished when an association begins voluntarily but the kidnapper's actual purpose is not the reason the victim voluntarily associated with the kidnapper.
"Decoyed is further defined as to entice or tempt or lure. It implies enticement or luring by means of some fraud or trick or temptation, but it excludes the idea of force.
"Now, if you find either defendant guilty of kidnapping for ransom, you must then decide whether the People have proved the additional allegation that any co-principal or perpetrator or co-conspirator caused the kidnapped person to suffer bodily harm. Please refer to the instructions provided elsewhere that I just read to you about who is a co-principal or a perpetrator or a co-conspirator. A co-principal is by aiding and abetting.
"Bodily harm means any substantial physical injury resulting from the use of force that is more than the force necessary to commit a kidnapping. Great bodily injury or death is not required. A trivial injury, however, is not sufficient to constitute bodily harm within the meaning of this instruction.
"The People have the burden of proving this allegation beyond a reasonable doubt. If the People have not met this burden, you must find that the allegation has not been proven." (The modifications at issue are in italics.)
In closing, the prosecution argued that defendants used more force than necessary to capture Tostado, stating: "It's ludicrous to suggest that they needed to do all of those things to successfully kidnap him." The prosecution maintained that defendants committed kidnapping by inveiglement with the aid of Valencia and Nancy, and the kidnapping was complete when Tostado walked through the door. Thus, any further harm he suffered occurred in the course of his confinement and was more than necessary to effectuate the kidnapping. Defendants acknowledged in their closing arguments that Tostado suffered some injuries, but maintained those injuries were trivial. They also argued that the force occurred only as Tostado was being subdued and, by Tostado's own testimony, defendants treated him well after that.
On the second day of deliberations, the jury inquired of the court: "If we are unable to come to consensus on the special circumstances, for either defendant, can we leave it as undecided?" The court questioned the foreperson and other jurors, clarifying that the jury's confusion related to whether the bodily harm went "beyond that which was necessary to commit the kidnapping" and whether the harm was "substantial." After hearing argument outside the presence of the jury, the court told the jury it had decided "it would not be appropriate for [it] to elaborate on [CALCRIM No. 1202] beyond what it says." The court then inquired of the foreperson: "If I ask you to assume that that's all you are going to get, do you think, sir, that there is a reasonable probability that the jury might arrive at a verdict if I ask you to continue deliberating... on the allegation?" The foreperson responded, "Yes." The jury returned its verdict two hours later, after hearing Dr. Campman's testimony re-read. The jury rejected defendants' arguments and found that Tostado suffered bodily harm within the meaning of section 209, subdivision (a).
DISCUSSION
I. Substantial Evidence Supports the Finding Tostado Suffered Bodily Harm
Defendants do not challenge the jury determination that they were guilty of kidnapping Tostado. However, they contend there is insufficient evidence to support the finding that Tostado sustained bodily harm, arguing that "no injury occurred after the initial seizure nor beyond the minor injuries inflicted in effecting the seizure." Defendants also assert that there is no case authority to support the prosecution argument that the offense of kidnapping for ransom is complete "at the point a victim is inveigled (enticed)."
When criminal defendants challenge the sufficiency of the evidence, we review "the entire record in the light most favorable to the prosecution to determine whether it contains evidence that is reasonable, credible, and of solid value, from which a rational trier of fact could find the defendant[s] guilty beyond a reasonable doubt." (People v. Kipp (2001) 26 Cal.4th 1100, 1128.) The same rule applies where the prosecution relies on circumstantial evidence. (People v. Rodriguez (1999) 20 Cal.4th 1, 11.) Under this standard, we "must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence." (People v. Jones (1990) 51 Cal.3d 294, 314 (Jones).) This means that we must accept logical inferences the jury may have drawn from the circumstantial evidence. (People v. Maury (2003) 30 Cal.4th 342, 396 (Maury).) It is also the province of the jury, not the appellate court, "to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends." (Jones, supra, 51 Cal.3d at p. 314.)
Section 209, subdivision (a) defines kidnapping for ransom and provides:
"Any person who seizes, confines, inveigles, entices, decoys, abducts, conceals, kidnaps or carries away another person by any means whatsoever with intent to hold or detain, or who holds or detains, that person for ransom, reward or to commit extortion or to exact from another person any money or valuable thing, or any person who aids or abets any such act, is guilty of a felony, and upon conviction thereof, shall be punished by imprisonment in the state prison for life without possibility of parole in cases in which any person subjected to any such act suffers death or bodily harm, or is intentionally confined in a manner which exposes that person to a substantial likelihood of death." (Italics added.)
"Bodily harm, " for purposes of kidnapping for ransom requires: (1) a substantial or serious injury to the body of the victim, (2) by application of a physical force, (3) beyond that necessarily involved in the forcible kidnapping. (People v. Chacon (1995) 37 Cal.App.4th 52, 59 (Chacon), citing People v. Schoenfeld (1980) 111 Cal.App.3d 671, 685 (Schoenfeld).) As the Supreme Court explained in People v. Jackson (1955) 44 Cal.2d 511, 516-517 (Jackson) and its progeny, the term "bodily harm" in section 209, subdivision (a) requires more than a trivial or insignificant injury―in Jackson, more than cutting off blood circulation by binding the victim's wrists with chains. (See, e.g., People v. Gilbert (1965) 63 Cal.2d 690, 711, vacated on a different ground in Gilbert v. California (1967) 388 U.S. 263.) The Jackson court described the policy concerns reflected in its reading of the term bodily harm: "If the more serious penalty [of life without the possibility of parole] may be imposed when the only injury is of a nature similar to that shown by the present record, which concededly is almost necessarily an incident to every forcible kidnaping, neither the purpose of enhancement of the penalty for the more heinous crime nor the intention of deterring the kidnaper from killing or injuring his victim is subserved. On the contrary, if there necessarily be bodily injury in almost every kidnaping sufficient to warrant imposition of the more serious penalty, the kidnaper might well reason that the better course for him would be to kill the victim to minimize the probability of identification." (Jackson, supra, at p. 517.) Although the question whether an injury constitutes bodily harm within the meaning of section 209, subdivision (a) is a question of law where the underlying facts are undisputed (Schoenfeld, supra, 111 Cal.App.3d at p. 681), this case involves conflicting inferences properly resolved by the jury as trier of fact. (Maury, supra, 30 Cal.4th at p. 396.)
The first question is whether Tostado sustained " 'a substantial or serious injury' " by " 'application of physical force.' " (Chacon, supra, 37 Cal.App.4th at p. 59.) We conclude there is substantial evidence to support the finding that he did. Defendants and their cohorts beat Tostado on the head, back, stomach and legs with their fists and something hard. He went to the ground when defendants started using the taser. Evidence showed that one of the tasers recovered by police had been fired 10 times in less than a minute on the evening in question. The taser left Tostado almost unconscious and unable to move. Defendants hit and kicked him in the back and stomach after he was down. Tostado felt one big blow on the back of his head. He was not sure if he lost consciousness, but stated, "I was pretty bad." Dr. Campman testified that "the actual skin injury" caused by the taser was "trivial or insignificant." However, Dr. Campman's other testimony regarding the immediate and possible long-term effects of repeated taser use, together with Tostado's description of the attack, provided sufficient evidence to withstand defendants' challenge.
The next question is whether there is sufficient evidence that defendants used force beyond that necessarily involved in the forcible kidnapping. (Chacon, supra, 37 Cal.App.4th at p. 59.) Tostado testified that defendants and their associates hit and kicked him on the head, back and stomach after he was down and nearly unconscious. As we stated, Tostado felt "one big blow" on the back of the head. The jury could reasonably infer that defendants had subdued Tostado at the point he was on the floor and unable to move, and that the continued use of force, including the big blow to the head, was beyond that necessary to subdue and hold him. Accordingly, we conclude there is substantial evidence to support the jury's finding.
We agree with defendants that there is no basis in law to support the People's theory that Tostado was kidnapped at the point he stepped through the door after being inveigled by Valencia and Nancy, and therefore all the force used by defendants was more than that necessary to accomplish the kidnapping. "[T]he gravamen of the offense of kidnapping is some form of compulsion... that the victim feels compelled to obey because he fears harm or injury from the accused, and his apprehension is not unreasonable under the circumstances." (People v. Gomez (1967) 252 Cal.App.2d 844, 858, disapproved on a different ground in People v. Tribble (1971) 4 Cal.3d 826, 832.) "It also follows, however, that in the absence of force, the use of fear to detain a person cannot establish a seizure or confinement if the person is at no time 'compelled to obey.' If threats and fear are ineffectual to cause confinement, and confinement is not effectuated by other means, then no seizure or confinement has occurred." (People v. Martinez (1984) 150 Cal.App.3d 579, 600, disapproved on a different ground in People v. Hayes (1990) 52 Cal.3d 577, 628, fn. 10.)
Thus, the theory articulated by the People was inapplicable in the circumstances of this case. Although the record supports a conclusion that the inveiglement or enticement of Tostado to make a date with Nancy was a key part of the kidnapping plot, does not mean force was unnecessary. Kidnapping a 33-year-old Mexican businessman, race car driver and former American-style football player with suspected ties to the Arellano Felix drug cartel is not the same as kidnapping a child using candy as a lure, as suggested by the People. It may be true the kidnapper of a child does not need to use force or "wrestle [the child] into a car or anything like that." However, it is clear defendants did not rely on Nancy as sufficient bait to capture Tostado without a struggle, given Tostado's testimony about the attack upon entry to the house and the weapons and ammunition seized from that location. In any event, whether or not the jury rejected the People's theory of the case, it still found that defendants used more force than necessary to effectuate the kidnapping and, as we conclude, there is sufficient evidence to support that finding.
II. The Court Properly Instructed the Jury on Bodily Harm
Defendants also claim the court erred in instructing the jury on bodily harm using the modified version of CALCRIM No. 1202. They cite two grounds for reversal: (1) the court erred in instructing the jury that Tostado's injuries had to have been "substantial, " but need not have been "great;" and (2) the court erred in allowing the jury to find against Gonzalez without proof he was individually culpable as a direct perpetrator, aider or abetter, or co-conspirator.
We review this type of claimed instructional error de novo because it involves a determination of the legal principles applicable to the case. (People v. Berryman (1993) 6 Cal.4th 1048, 1089, overruled on a different ground in People v. Hill (1998) 17 Cal.4th 800, 823, fn. 10.) The trial court has a duty to instruct the jury on general principles of law that are closely and openly connected with the evidence and necessary to the jury's understanding of the case. (People v. Cummings (1993) 4 Cal.4th 1233, 1311.) When evaluating the correctness of the jury instructions, we consider the instructions as a whole, not merely a single instruction. (People v. Musselwhite (1998) 17 Cal.4th 1216, 1248.) The critical question is whether there is a reasonable likelihood that the jury misunderstood the charge. (People v. Kelly (1992) 1 Cal.4th 495, 525 (Kelly).) We conclude there was no error in instructing the jury on bodily harm.
A. "Substantial" Harm Versus "Great" Harm
As we explained, defendants expressly agreed to modify CALCRIM No. 1202's definition of bodily harm with the language they now claim misstates the law: "Bodily harm means any substantial physical injury resulting from the use of force that is more than the force necessary to commit a kidnapping. Great bodily injury or death is not required. A trivial injury, however, is not sufficient to constitute bodily harm within the meaning of this instruction."
Citing People v. Davis (2005) 36 Cal.4th 510, 539, the People argue that defendants invited or forfeited the claimed error by agreeing to the instruction at trial. However, "even in the context of invited error, the trial judge, not defense counsel, has the duty to apply the correct law." (People v. Tapia (1994) 25 Cal.App.4th 984, 1030.) Because there is no indication defense counsel deliberately invited the alleged error for tactical reasons, we address the merits of defendants' claim. (Id. at pp. 1030-1031; see also 6 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Reversible Error, § 34, pp. 492-494.)
Defendants premise their claim of instructional error on the following syllogism: "If it is true that great bodily injury means substantial injury, and if substantial injury is required for section 209, subdivision (a), ... the injury or harm inflicted [under section 209, subdivision (a)] must be great." The difficulty with this logic is that defendants cite no authority to show that "substantial injury" equates with "great bodily injury" in the context of section 209, subdivision (a). Instead, they cite cases involving assault with intent to commit great bodily injury (§ 245, subd. (a)) and great bodily injury enhancements (§§ 667.5, subd. (c)(8) &12022.7), claiming the context of those cases is analogous. Defendants' reliance on those cases is misplaced. The history of section 209 demonstrates that the Legislature: (1) intended to punish persons guilty of kidnapping for ransom or robbery with the most severe sentences short of death in order to deter the carrying away of persons in a manner which substantially increased the risk of injury or death and (2) carefully differentiated between kidnappings deserving sentences of life with the possibility of parole from those deserving life without the possibility of parole based on the extent of actual harm or risk of harm suffered by the victim. (People v. Lauren (1972) 8 Cal.3d 192, 198; Jackson, supra, 44 Cal.2d at p. 517; Schoenfeld, supra, 111 Cal.App.3d at pp. 682-686.) And although the Legislature used the term "great bodily injury" sometimes interpreted as "substantial injury" under other statutes (e.g., §§ 245, subd. (a), 667.5, subd. (c)(8) & 12022.7), the fact it elected not to use that term in section 209 supports the conclusion it had a different intention. (People v. Valentine (1946) 28 Cal.2d 121, 142.) Accordingly, we reject defendants' argument that "substantial" bodily harm is the same as "great" bodily harm.
We conclude that CALCRIM No. 1202 as modified by the court and counsel was a correct statement of the law. The court properly declined to elaborate on the language of the instruction when asked by the jury and, given this record, there is no reasonable likelihood that the jury misapplied the law. (Kelly, supra, 1 Cal.4th at p. 525.)
B. Instructions Regarding Gonzalez's Personal Culpability for the Bodily Harm
Contending there is no evidence to show he was personally present at the time of the kidnapping, Gonzalez argues that the following portion of the modified CALCRIM No. 1202 allowed the jury to find that Tostado suffered bodily harm without finding Gonzalez was personally culpable for that harm:
"Now, if you find either defendant guilty of kidnapping for ransom, you must then decide whether the People have proved the additional allegation that any co-principal or perpetrator or co-conspirator caused the kidnapped person to suffer bodily harm. Please refer to the instructions provided elsewhere that I just read to you about who is a co-principal or a perpetrator or a co-conspirator. A co-principal is by aiding and abetting."
Gonzalez maintains "[t]his is not a proper statement of the law, as it would allow the application of the bodily harm finding against a defendant who bore no individual culpability for the force causing any bodily harm as long as some other participant caused bodily harm, even if the defendant did not aid and abet the harm-causing application of force, or the application of force was beyond the scope of the conspiracy to kidnap." Because of the enhanced penalty where the kidnapping victim suffers bodily harm, Gonzalez contends the bodily harm requirement functions as an element of an offense separate form a kidnapping for ransom in which the victim does not suffer the harms listed in the statute. He therefore argues that the claimed instructional error undermined his right to due process. Applying the well-established principles of review of claimed instructional error, we conclude the court properly instructed the jury on Gonzalez's personal culpability for the bodily harm suffered by Tostado.
To support a finding of bodily harm against a defendant, the People must prove: (1) the defendant inflicted the injury directly or (2) the injury was a reasonably foreseeable consequence of defendant's intentional acts. (People v. Isitt (1976) 55 Cal.App.3d 23, 29, citing People v. Monk (1961) 56 Cal.2d 288, 296.) Here, in addition to instructing the jury on kidnapping for ransom with the modified version of CALCRIM No. 1202, the court instructed the jury on aiding and abetting liability (CALCRIM Nos. 400 & 401) and conspiracy (CALCRIM No. 416). These theories of vicarious liability encompass the element of reasonably foreseeable consequences. "The requirement that the jury determine the intent with which a person tried as an aider and abettor has acted is not designed to ensure that his conduct constitutes the offense with which he is charged. His liability is vicarious. Like the conspirator whose liability is predicated on acts other than and short of those constituting the elements of the charged offense, if the acts are undertaken with the intent that the actual perpetrator's purpose be facilitated thereby, he is a principal and liable for the commission of the offense. Also like a conspirator, he is guilty not only of the offense he intended to facilitate or encourage, but also of any reasonably foreseeable offense committed by the person he aids and abets. (People v. Croy (1985) 41 Cal.3d 1, 12, citing People v. Beeman (1984) 35 Cal.3d 547, 560; italics added.)
Read as a whole, these instructions adequately informed the jury that the harm to Tostado had to be a reasonably foreseeable result of defendants' actions. We therefore conclude there is no reasonable likelihood that the jury misapplied the law. (Kelly, supra, 1 Cal.4th at p. 525.)
DISPOSITION
The judgment is affirmed.
WE CONCUR: NARES, Acting P. J., HALLER, J.