Opinion
NOT TO BE PUBLISHED
Sup. Ct. No. 05F06270
MORRISON, J.
After an incident where defendant admittedly molested a young girl who lived in his apartment complex, a jury convicted defendant of forcefully committing three lewd and lascivious acts with a child under the age of 14 (Counts 1-3, Pen. Code, § 288, subd. (b)(1) ); making a criminal threat (Count 4, § 422)); and simple kidnapping (Count 5, § 270, subd. (a)). The jury found true allegations that, as to Counts 1 through 3, defendant used a deadly weapon and kidnapped the victim, who was under 14 years of age. (§ 667.61, subd. (e)(1), (e)(4); § 667.8, subd. (b); § 12022.3, subd. (a).) The trial court denied defendant’s subsequent motion for a new trial and sentenced defendant to an aggregate term of 45 years to life.
Unspecified section references are to the Penal Code.
Defendant contends there is insufficient evidence to support the kidnapping conviction and enhancements, and he was denied effective assistance of counsel. On this record the jury could find the slight movement of the victim was incidental to the underlying crime of child molestation, and the trial court prejudicially erred in failing to instruct on this point of law. The court failed to tell the jury to consider whether the movement was incidental to the lewd acts in determining its substantiality. We reverse the kidnapping conviction and the kidnapping enhancements with directions to modify the judgment to a conviction of false imprisonment by violence (§§ 236, 237, subd. (b)) and resentence defendant unless the People elect to retry defendant on the kidnapping charges.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant and victim lived in the same apartment complex. Defendant’s apartment was located on the second floor of one of the buildings, which was bordered on both sides by common walkways. On July 13, 2005, around 5:00 p.m., victim was walking near one of the complex’s swimming pools. Defendant invited her up to his apartment to play video games later that evening. Victim agreed.
When victim arrived at defendant’s apartment, his roommate was packing for a weekend trip. Defendant looked for the video game controllers. The roommate left, and defendant asked victim to lock the door. She refused. Defendant got up and locked the door.
After the roommate left, defendant sat down on a computer chair in the bedroom and began to play an online dominoes tournament. Victim went in the bedroom and watched.
Having forgotten a textbook, defendant’s roommate returned briefly to the apartment. He saw defendant and victim inside defendant’s room, laughing and pointing at the computer screen.
The evidence was conflicting as to whether the door to the apartment was locked after the roommate left the second time. In her MDIC interview, victim stated defendant locked the door after his roommate came back. In her trial testimony, however, victim claimed no one locked the door after the roommate returned and then left.
Victim looked around the room while remaining seated on the bed. Defendant grabbed her by the neck, squeezing her. He brought a sharp, silver object up to victim’s neck and told her, “Do what I say in order to survive.” She was scared, and felt she could not leave.
Defendant placed the knife down on the computer desk, and asked her if she had ever had sex. When she said no, defendant snapped his fingers, and said “Dang.” He unzipped his pants, and grabbing the back of her head, forced her to orally copulate him.
Victim pushed herself free and ran out of defendant’s bedroom. As she ran, she saw a sharp object on the computer desk. She ran into the hallway headed toward the front door. The hallway is seven to eight feet long. Defendant chased her. Defendant jumped up and around her, landing in front of her, and blocking her path before she left the hallway. She testified that she could not explain how he got by her, only that “[h]e went through the closet” in the hallway. Defendant then picked victim up by her shoulders, carried her back down the hallway, and threw her into the bedroom.
Defendant then blocked the bedroom door. Victim testified that she did not want to stay, but that she felt she could not leave the apartment. Defendant lifted her bathing suit top and pinched her breast hard. She pushed him away, grabbed her things and ran out of the room. Defendant stopped her in the living room, and French-kissed her. Defendant asked victim not to tell anyone. Victim then turned and ran out of defendant’s apartment. She met her sister, S., who had been looking for her. Victim told her sister what happened.
After Victim left, defendant made a few phone calls to his father and a friend. He claimed he was remorseful and disgusted with himself. He then decided to go for a walk. He ran into the victim and her sister. S. confronted him about what he had done.
The two sisters returned home to tell their mother about the incident. Mother and three relatives went to confront defendant, while victim stayed at home. After speaking with defendant, Dionne called the police.
Police officers arrived and arrested defendant; they read him his rights under Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694]. He confessed to three acts of lewd and lascivious conduct. He denied ever threatening, choking, picking up, or pinching the victim, and denied holding a knife to her neck or asking her about her sexual experience.
During their search, police found a silver butter knife on the computer desk in defendant’s bedroom. It was covered with peanut butter residue and food wrappers.
DISCUSSION
I. Sufficiency of Evidence of Kidnapping
The jury convicted defendant in Count 5 of simple kidnapping under section 207. It also found true the one-strike allegations associated with Counts 1 through 3, which charged kidnapping in connection with the lewd and lascivious act against victim (§ 667.61, subd. (e)(1)), and the kidnapping enhancement under section 667.8, subdivision (b).
In relevant part, section 207 provides: “Every person who forcibly, or by any other means of instilling fear, steals or takes, or holds, detains, or arrests any person in this state, and carries the person into another country, state, or county, or into another part of the same county, is guilty of kidnapping.” (§ 207, subd. (a).) The simple kidnapping circumstance of section 667.61, subdivision (e)(1) requires the same. (See People v. Jones (1997) 58 Cal.App.4th 693, 709-710.) The enhancement under section 667.8, subdivision (b) is also premised upon a finding of kidnapping. (People v. Hernandez (1988) 46 Cal.3d 194, 203-204 [section 667.8 requires specific intent in addition to kidnapping].)
A. Physically Impossible Testimony
Defendant contends there is insufficient evidence of kidnapping. First, he contends victim’s account of the alleged kidnapping was physically impossible. Uncorroborated testimony may provide substantial evidence, unless it is physically impossible or inherently improbable. (People v. Scott (1978) 21 Cal.3d 284, 296.)
The hallway in question is seven- to eight-feet long. Defendant’s room is off to one side of the hallway, short of the end of the hallway, and directly across from a bathroom. The closet is a “walk-in” storage pantry located on the opposite side of the hallway from the bedroom and towards the front door. The closet has a bi-fold door that opens into the closet. When opened, the door effectively narrows the width of the hallway. According to defendant, no plausible account can explain “how [his] progress down the hall . . . would have been advanced by stepping into [the closet] unless [victim] was welded to the hallway floor immediately in front of the opening; and of course she was not.”
We cannot say that victim’s account of the kidnapping was physically impossible. She ran down the hallway terrified after being assaulted and threatened. She was 11 years old and weighed only 88 pounds, while defendant was 21 and weighed 215 pounds. She testified defendant jumped up and around her and landed in front of her. By going “through the closet,” he was able to block her path before she could leave the hallway. She did not testify she never stopped.
From these facts it is reasonable to infer that as victim started down the hallway, she heard defendant behind her. Fearing the much larger man, she flinched, and perhaps crouched in fear. Her movement allowed defendant to get past her by the closet and also prevented her from seeing how he did this. Seen in this light, her account is not physically impossible, and this hypothesis is consistent with defendant’s guilt. (People v. Scott, supra, 21 Cal.3d 284 at p. 296; People v. Bolin (1998) 18 Cal.4th 297, 331.)
B. Sufficient Evidence of Asportation
Defendant next contends the distance he carried victim, about 10 feet, was legally insufficient for kidnapping. He contends the distance was trivial under any standard and thus the kidnapping conviction, and the kidnapping enhancements, must be reversed. While we disagree that 10 feet is always insufficient movement for kidnapping, we find the movement in this case could be found to be incidental to the associated crime of molestation. Since such incidental movement is insufficient for kidnapping, the trial court’s failure to instruct on this important principle of law requires reversal.
The defense unsuccessfully made this point during trial with motion to acquit under section 1118.1, and after trial with a motion for a new trial under section 1181.
Previously, the asportation requirement for simple kidnapping was determined solely by the actual distance the victim was moved. (People v. Caudillo (1978) 21 Cal.3d 562, 572, overruled in People v. Martinez (1999) 20 Cal.4th 225, 229.) Under the prior law, the distance here, about 10 feet, would have legally insufficient to support a conviction for kidnapping. (People v. Martinez, supra, at p. 239 [65 feet insufficient under prior standard].)
In Martinez, our Supreme Court reaffirmed “that for simple kidnapping asportation the movement must be ‘substantial in character’ [citation], but h[e]ld that the trier of fact may consider more than actual distance.” (People v. Martinez, supra, 20 Cal.4th at p. 235.) In determining whether the distance is “substantial in character” the jury may consider the totality of the circumstances. (Id. at p. 237.) “Thus, in a case where the evidence permitted, the jury might properly consider not only the actual distance the victim is moved, but also such factors as whether that movement increased the risk of harm above that which existed prior to the asportation, decreased the likelihood of detection, and increased both the danger inherent in a victim’s foreseeable attempts to escape and the attacker’s enhanced opportunity to commit additional crimes.” (Id. at p. 237, fn. omitted.) The court emphasized, however, “that contextual factors, whether singly or in combination, will not suffice to establish asportation if the movement is only a very short distance.” (Ibid.) “In addition, in a case involving an associated crime, the jury should be instructed to consider whether the distance a victim was moved was incidental to the commission of that crime in determining the movement’s substantiality.” (Ibid.)
By contrast, “aggravated kidnapping 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. [Citations.]” (People v. Martinez, supra, 20 Cal.4th at p. 232.)
The Attorney General contends the contextual factors made the short distance substantial in this case. The Attorney General argues moving victim from the hallway or living room to the bedroom increased the risk of harm to her and decreased her chances of escape. He reasons that victim was in more danger and less able to escape in the bedroom than the living room, where she would have been seen by the roommate if he returned.
In cases where movement a short distance was found sufficient for kidnapping, the movement significantly changed “‘the context of the environment.’” (People v. Diaz (2000) 78 Cal.App.4th 243, 247.) In People v. Shadden (2001) 93 Cal.App.4th 164, an aggravated kidnapping case, the victim was moved only nine feet before defendant began to assault her. The appellate court found sufficient evidence of asportation because in moving the victim from the front counter of the video store to the back room with the door closed and out of public view, the risk of harm was increased. (Id. at pp. 169-170.) The court noted the “critical factor” was whether the defendant “secluded or confined” the victim. (Id. at p. 170.) In People v. Corcoran (2006) 143 Cal.App.4th 272, 279, defendant herded the victims about 10 feet from a public area to a small back room with no windows and a solid door. The court noted the movement did not facilitate the robbery, but only increased the danger. (Id. at p. 280.) In contrast, the movement of victims 50 feet to the back of the store was insufficient for kidnapping where the movement served only to facilitate the robbery and thus was incidental to the underlying crime. (People v. Hoard (2002) 103 Cal.App.4th 599, 607; see also People v. Arjon (2004) 119 Cal.App.4th 185 [motion for acquittal granted on kidnapping charges where defendant moved child victims from living room to locked bedroom].)
Although it addressed simple kidnapping, the Martinez court looked to aggravated kidnapping cases to articulate the contextual factors that could be considered in determining whether distance was substantial. (People v. Martinez, supra, 20 Cal.4th at p. 236.)
Shadden and Corcoran establish that movement of less than 10 feet is not trivial as a matter of law. The change in environment here, however, was less than in those cases. Whether there was sufficient evidence of asportation is a close question. The danger to victim was being alone with defendant in his apartment. Further crimes could occur anywhere in the apartment; the last lewd act occurred in the living room. The victim’s sister was walking about the complex looking for her sister and could have heard her from the bedroom, which had a window, perhaps better than from the hallway, which did not. Victim was already secluded and confined in defendant’s apartment.
In assessing the contextual factors in a case involving an associated crime, the jury should also “consider whether the distance a victim was moved was incidental to the commission of that crime in determining the movement’s substantiality.” (People v. Martinez, supra, 20 Cal.4th at p. 237.) In People v. Dominguez (2006) 39 Cal.4th 1141, at pages 1151-1152, the court explained that in determining whether movement was incidental to the associated crime, “the jury must ‘consider[] the “scope and nature” of the movement,’ as well as ‘the context of the environment in which the movement occurred.’ [Citations.] This standard suggests a multifaceted, qualitative evaluation rather than a simple quantitative assessment.”
Here, the jury was not instructed to consider whether the movement was incidental to the molestation. The trial court did not give the bracketed portion of CALCRIM No. 1215 that reads: “The defendant is also charged in Count __ with ________ [insert crime]. In order for the defendant to be guilty of kidnapping, the other person must be moved or made to move a distance beyond that merely incidental to the commission of _________ [insert crime].”
Relying on the use note to the instruction, the Attorney General argues the instruction need be given only when requested. We disagree. While instructing on the contextual factors guided the jury in determining whether the movement was substantial, only the “incidental” instruction told the jury how to consider the movement in relation to the other crimes.
“It is settled that, even in the absence of a request, a trial court must instruct on general principles of law that are commonly or closely and openly connected to the facts before the court and that are necessary for the jury’s understanding of the case. [Citations.] The trial court is charged with instructing upon every theory of the case supported by substantial evidence, including defenses that are not inconsistent with the defendant’s theory of the case. [Citations.]” (People v. Montoya (1994) 7 Cal.4th 1027, 1047.)
Whether the movement of victim was incidental to the lewd conduct was “closely and openly connected to the facts before the court and [ ] necessary for the jury’s understanding of the case[,]” (People v. Montoya, supra, 7 Cal.4th at p. 1047), and the jury should have been so instructed. Indeed, the Martinez court stated: “In addition, in a case involving an associated crime, the jury should be instructed to consider whether the distance a victim was moved was incidental to the commission of that crime in determining the movement’s substantiality.” (People v. Martinez, supra, 20 Cal.4th at p. 237, italics added.) Such consideration is relevant to determining whether more than one crime has been committed because there is no violation of section 207 unless the asportation is more than incidental to the commission of an associated crime. (Ibid.; see also People v. Daniels (1969) 71 Cal.2d 1119, 1130-1131 [movement of victims no more than 30 feet within their own homes was incidental to associated robberies and rapes and insufficient evidence of asportation].)
“It has long been the law in California that even a simple kidnapping requires movement more than incidental to the commission of an ‘associated crime.’ [Citations.]” (People v. Diaz, supra, 78 Cal.App.4th 243, 246.) Movement is incidental where the asportation plays no significant or substantial part in the planned offense, where it is only “‘“trivial changes of location having no bearing on the evil at hand.”’” (People v. Ellis (1971) 15 Cal.App.3d 66, 70.)
Whether the movement here was incidental to the acts of molestation was a question for the jury. In Dominguez, the defendant moved the victim to an orchard, 25 feet away and 10 to 12 feet below the level of the road. “The movement thus changed the victim’s environment from a relatively open area alongside the road to a place significantly more secluded, substantially decreasing the possibility of a detection, escape or rescue.” (People v. Dominguez, supra, 39 Cal.4th at p. 1153.) Thus, in Dominguez, defendant moved the victim to hide his crime.
Here, the evidence supported conflicting conclusions as to the movement. The jury could conclude defendant moved victim to the bedroom only because it was a more comfortable and convenient location than the hallway. As the third lewd act in the living room demonstrated, he was willing to molest her anywhere. On the other hand, if the jury found the apartment door was left unlocked after the roommate left (see p. 3, fn. 2, supra), the movement could be considered substantial and not incidental because it was intended to hide the crime. Had defendant committed the second act of molestation -- pulling up her bathing suit top and pinching her breasts -- in the hallway, there was a risk that the roommate (or someone else) could have discovered him simply by opening the front door, because the entire length of the hallway was visible from the entry to the apartment.
Because there was a significant factual question whether the movement was incidental to the molestation, the trial court prejudicially erred in failing to instruct that substantial movement must be more than that incidental to another crime. We now consider the proper remedy for the instructional error. One choice is reversal of the judgment of conviction, entitling the defendant to a retrial on the kidnapping charges. Regardless of the instructional error, however, the evidence supports conviction of a lesser offense. Kidnapping necessarily includes the crime of false imprisonment by violence (§§ 236, 237, subd. (b)), which does not require involuntary movement of the victim. (People v. Gibbs (1970) 12 Cal.App.3d 526, 547.) A second remedy is to impose this lesser offense, subject to retrial at the option of the People. (Cf., e.g., People v. Edwards (1985) 39 Cal.3d 107, 118; People v. Cameron (1994) 30 Cal.App.4th 591, 602, 605; People v. Heffington (1973) 32 Cal.App.3d 1, 14-17.) We select the latter remedy which gives the People the election to retry defendant for simple kidnapping and the kidnapping enhancements under sections 667.61, subdivision (e)(1) and 667.8, subdivision (b) or to accept instead a conviction for false imprisonment by violence.
II. Ineffective Assistance of Counsel
Defendant next contends he was deprived of effective assistance of counsel because trial counsel failed to subpoena victim’s mother and sister as witnesses. At trial, defendant conceded his guilt on three section 288 lewd and lascivious acts, but contested whether he used force, had a knife or kidnapped victim. During his opening statement, defense counsel promised the jury that they would hear from victim’s mother and sister and their testimony would show victim’s story changed and grew worse with each telling. The logical conclusion would be that defendant did not employ force or a knife. Defendant contends the failure to call these witnesses failed to exploit a vulnerability in the prosecution’s case. Because defendant has failed to show prejudice, we reject his claim of ineffective assistance of counsel.
The standard for establishing ineffective assistance of counsel is well settled. A defendant must demonstrate that: (1) his attorney’s performance fell below an objective standard of reasonableness; and (2) there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been more favorable to the defendant. (Strickland v. Washington (1984) 466 U.S. 668, 688 [80 L.Ed.2d 674].) A reasonable probability is a probability sufficient to undermine confidence in the outcome. (Ibid.)
Prejudice must be affirmatively shown, and in this context, requires showing both what the omitted witness’s testimony would have been, and that the testimony would have been sufficient to create reasonable probability of doubt concerning defendant’s guilt. (Tinsley v. Borg (9th Cir. 1990) 895 F.2d 520, 532 [failure to locate witness]; United States v. Berry (9th Cir. 1987) 814 F.2d 1406, 1409 [failure to identify substance of witness testimony].)
On this record, even if we were to conclude counsel’s failure to present the witnesses and testimony described in his opening statement fell below the normal range of competency, we would find such error nonprejudicial. (See People v. Stanley (2006) 39 Cal.4th 913, 955.)
The only indication in the record as to what the mother’s and sister’s testimony would have been are their statements to the police. According to the sister, victim told her that “[defendant] went into the kitchen and came back with a knife and set it down on the desk next to where they were sitting, that’s when she got really scared for her safety.” This statement is consistent with victim’s videotaped, MDIC interview, which was played for the jury. S.’s statement does not indicate whether victim told her about the knife before, during, or after they confronted defendant. Even if S. said victim told her about the knife afterwards, S.’s testimony would not contradict victim, who testified that she could not recall telling her sister that defendant had a knife when she first ran into her sister.
In support of the new trial motion, defense counsel stated that he wanted to ask S. about comments that she made during her confrontation with defendant. Counsel stated that after defendant apologized for his behavior, S. turned to the victim and said, “This is the second time this has happened.” Because this statement is not found anywhere else in the record, we ignore it; there is no indication that S. would testify to this if she were called. (United States v. Berry, supra, 814 F.2d at p. 1409.)
The mother’s statement to the police is also largely consistent with victim’s testimony. Victim testified that she first told her mother that defendant had a sharp object and choked her over the phone while mother confronted defendant. Mother gave police officers the same statement. The only new fact in mother’s statement was that defendant told mother that he had an agreement with the victim; if she massaged his feet, he would let her play video games.
If mother and sister had been called to testify, they would have corroborated the victim’s account of both the assault and the knife. Even if they testified favorably for the defense, that the knife appeared only in subsequent tellings of the incident, their testimony would not have materially aided the defense. Victim mentioned the knife shortly after her initial report of the incident. The time frame over which the story purportedly changed was just short of three hours: the incident occurred around 8:00 p.m., and police questioned victim at 10:45 p.m. She mentioned the knife to both her mother and sister before then. The change in her story is more easily explained as a fuller recounting of a traumatic event by a young victim rather than, as the defense now suggests, the result of “suggestion and manipulation.” The allegation that Victim added facts showing force and a deadly weapon with each retelling of the incident would be more persuasive if this change occurred over a longer time period.
Overall, the statements of mother and sister would have strengthened the prosecution’s case because they corroborated victim’s account. This evidence does not generate a reasonable probability sufficient to undermine confidence in the outcome of the trial. (Strickland v. Washington, supra, 466 U.S. at p. 688.) Based on this record, we conclude that the failure to call victim’s mother and sister did not prejudice the defendant, so his claim of ineffective assistance of counsel fails.
Disposition
The judgment of conviction for simple kidnapping under section 207, subdivision (a), and the true findings relating to the victim’s kidnapping under section 667.61, subdivision (e)(1) and section 667.8, subdivision (b) are reversed with directions that, if the People do not bring defendant to trial within 60 days after the filing of the remittitur in the trial court pursuant to Penal Code section 1382, subdivision (a)(2), the trial court shall proceed as if the remittitur constituted a modification of the judgment to reflect a conviction of false imprisonment by violence and shall resentence defendant accordingly. (See People v. Edwards, supra, 39 Cal.3d 107, 118.) Defendant’s convictions for violation of Penal Code sections 288, subdivision (b)(1) and 422 are affirmed. The enhancements for use of a deadly weapon on Counts 1 through 3, pursuant to Penal Code sections 667.61, subdivisions (e)(4) and 12022.3, subdivision (a), are affirmed.
I concur: ROBIE, J.
I concur in part II of Justice Morrison’s opinion. I also agree that the trial court committed prejudicial error in failing to instruct the jury to find whether the movement of the victim was incidental to the underlying crime of child molestation.
I write separately to state that, in my view, substantial evidence supports defendant’s conviction for kidnapping, so that defendant may be re-tried for that offense.
SIMS, Acting P.J.