Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County, No. SCN243481, Joan P. Weber, Judge.
McINTYRE, J.
A jury convicted Salvador Zamudio of rape by a foreign object (count 1), forcible oral copulation (count 2), burglary (counts 3 & 6), robbery (count 4), and kidnapping (count 5). It also found true all the special allegations set forth in the information, including allegations that the sex offenses in counts 1 and 2 were committed with the use of a dangerous or deadly weapon, during the commission of a burglary, and that Zamudio kidnapped the victim. (Pen. Code, § 667.61, subds. (a), (c) & (e)(1), (2) & (4); undesignated statutory references are to the Penal Code.) The court sentenced Zamudio to a term of 25 years to life plus 14 years 8 months.
On appeal, Zamudio challenges the sufficiency of the evidence to support the kidnapping conviction in count 5, the true finding of kidnapping under section 667.61, subdivision (e)(1) in counts 1 and 2, and the robbery conviction in count 4. In addition, Zamudio contends that the court erred in instructing the jury on kidnapping and by failing to stay the robbery sentence in count 4. The Attorney General agrees with Zamudio that he is entitled to one additional day of presentence custody credit.
As we explain, the court erred in instructing the jury on kidnapping and in failing to stay the robbery sentence. Accordingly, we reverse the conviction of count 5, strike the true finding of kidnapping in counts 1 and 2, strike the deadly weapon enhancement, and direct the court on remand to stay either the sentence for burglary in count 3 or robbery in count 4, and correct the abstract of judgment to add one day of presentence custody credit. We affirm the judgment in all other respects.
FACTUAL AND PROCEDURAL BACKGROUND
Because none of Zamudio's claims of error relate to count 6, the burglary he committed on a later date, we confine this factual summary to the events that gave rise to counts 1 through 5.
The victim was employed to clean the TRC Gymnasium in Solana Beach. She was cleaning the front door of the gym early on the morning of March 21, 2008, when a man approached, brandished a knife, and asked her if there was any money in the gym. The man, later identified as Zamudio, told the victim to go inside.
The victim tried to find money in the gym owner's office while Zamudio stood near the office door. Zamudio told the victim to take her clothes off, but she continued talking to gain time to find money for him. When Zamudio saw the victim take a cell phone from her pocket, he tried to take it away from her. The victim told him she was not making a call and put the phone back in her pocket.
Zamudio followed the victim to the front desk as she continued her unsuccessful search for money. Thinking that she would be safer outside, the victim told Zamudio that she had money in her car. She went outside with Zamudio behind her. The victim also told Zamudio that her husband had given her a contagious disease.
Eventually, Zamudio got angry. He told her to lower her voice or "things would go badly for [her]." Zamudio grabbed the victim and pulled her towards the back area of the building. She planted her feet and resisted. He demanded, "Let me see you." The victim pulled down her pants just enough to expose herself. Zamudio pulled her pants down further and inserted his fingers into her vagina. When he removed his fingers, the victim moved away from him and asked if she could go. Zamudio followed her, exposed his penis and asked if she had ever performed oral sex. When the victim said no, he told her to open her mouth. Believing she had no other option, the victim orally copulated Zamudio. While holding Zamudio's penis, the victim pulled out her cell phone with the other hand and dialed 9-1-1. Zamudio heard the dial tones, stepped back, and took the phone away from the victim. She initially told him that the call had not gone through. The victim then said that she had made the call and the police were on the way. Seeing that the distance between them had widened, the victim ran from the scene.
The victim hid for a period of time behind a nearby restaurant. Eventually a worker arrived at the restaurant and assisted her. The victim's husband arrived and called 9-1-1.
Based on the victim's description of Zamudio and his vehicle, sheriff's deputies arrested him six days later near the scene of a commercial burglary. Zamudio had a knife in his possession at the time of the arrest. Sheriff's deputies also recovered the victim's cell phone in their search of Zamudio's home.
DISCUSSION
I. Kidnapping
As we explained, the information charged simple kidnapping (§ 207, subd. (a)) in count 5, and alleged kidnapping as a circumstance that made Zamudio eligible for a life sentence for the sex offenses alleged in counts 1 and 2 under the one strike law (§ 667.61, subds. (a), (c) & (e)(1); People v. Palmore (2000) 79 Cal.App.4th 1290, 1295).
Section 207, subdivision (a) defines simple kidnapping and states: "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." Simple kidnapping requires proof of movement of the victim that is "substantial in character." (People v. Martinez (1999) 20 Cal.4th 225, 237 (Martinez).)
In Martinez, the Supreme Court held that in determining whether the movement is "substantial in character" in an action for simple kidnapping, the jury should consider the totality of the circumstances. (Martinez, supra, 20 Cal.4th 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." (Ibid., fn. omitted.) The "totality of the circumstances" standard is intended to direct the jury's attention to "the evidence presented in the case, rather than to abstract concepts of distance" emphasized in prior case law. (Ibid.) At the same time, the Martinez court emphasized that "contextual factors, whether singly or in combination, will not suffice to establish asportation if the movement is only a very short distance." (Ibid.) Moreover, where the information charges defendant with an associated crime, "there can be no violation of section 207 unless the asportation is more than incidental to the commission of that crime." (In re Earley (1975) 14 Cal.3d 122, 129 & fn. 9 (Earley), citing Cotton v. Superior Court (1961) 56 Cal.2d 459 (Cotton); see also, Martinez, supra, 20 Cal.4th at p. 237.)
Zamudio argues there is insufficient evidence as a matter of law to show that his movement of the victim was more than incidental to his attempt to steal money, the purpose of the burglary alleged in count 3, or the robbery alleged in count 4. He also contends the court committed prejudicial error when it failed to properly instruct the jury on movement incidental to another crime. We agree that the instructional error requires reversal.
A. Instructional Error
The court instructed the jury on kidnapping pursuant to a modified version of CALCRIM No. 1215, as follows:
"The defendant is charged in Count 5 with kidnapping. [¶] To prove that the defendant is guilty of this crime, the People must prove that: [¶] 1. The defendant took, held, or detained another person by using force or by instilling reasonable fear; [¶] 2. Using that force or fear, the defendant moved the other person or made the other person move a substantial distance; AND [¶] 3. The other person did not consent to the movement.
"In order to consent, a person must act freely and voluntarily and know the nature of the act.
"Substantial distance means more than a slight or trivial distance. In deciding whether the distance was substantial, you must consider all the circumstances relating to the movement. Thus, in addition to considering the actual distance moved, you may also consider other factors such as whether the movement increased the risk of physical or psychological harm, increased the danger of a foreseeable escape attempt, gave the attacker a greater opportunity to commit additional crimes, or decreased the likelihood of detection.
"The defendant is not guilty of kidnapping if the other person consented to go with the defendant. The other person consented if she (1) freely and voluntarily agreed to go with or be moved by the defendant, (2) was aware of the movement, and (3) had sufficient maturity and understanding to choose to go with the defendant. The People have the burden of proving beyond a reasonable doubt that the other person did not consent to go with the defendant. If the People have not met this burden, you must find the defendant not guilty of this crime."
On appeal, Zamudio contends that the court prejudicially erred in omitting a bracketed portion of CALCRIM No. 1215 which would have instructed the jurors in accordance with Earley, Cotton and Martinez that: "The defendant is also charged in Count ___ with _______. 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 _______." He maintains that if the jury had been given the full instruction, it would have found the evidence insufficient to prove that he kidnapped the victim. We agree that the court erred in instructing the jury and that the error was prejudicial to Zamudio.
"The trial court must instruct even without request on the general principles of law relevant to and governing the case. [Citation.] That obligation includes instructions on all of the elements of a charged offense. [Citation]" (People v. Cummings (1993) 4 Cal.4th 1233, 1312.) As we explained, movement is an element of simple kidnapping under section 207, subdivision (a). Pursuant to Earley and Cotton, "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.... [S]uch consideration is relevant to determining whether more than one crime has been committed...." (Martinez, supra, 20 Cal.4th at p. 237.)
Inexplicably, neither party cites the court's discussion of CALCRIM No. 1215 with counsel. It appears that the prosecution inadvertently requested the bracketed portion regarding incidental movement. However, the court shared its view that the instruction in question was inapplicable, stating: "I think that paragraph that you have in there... about the defendant is also charged in count four with robbery, I think, if I'm reading this right, it says in the use note, the bracketed paragraph that begins with: the defendant is also charged must be given on request when an associated crime is charged, such as you're charging the defendant with kidnapping for purposes of rape, kidnapping for purposes of robbery, as opposed to what you've done here, which is you have a separate and distinct kidnapping charge and then a separate and distinct robbery charge." The prosecutor indicated that he would take the paragraph out of the instruction. Defense counsel declined to discuss the matter and "agree[d] since he's taking it out."
We begin by rejecting the Attorney General's argument that "[b]ecause [Zamudio] did not request the bracketed clarifying instruction, he has forfeited the argument on appeal." We will address the instructional error on grounds the issue affects Zamudio's substantial rights. (People v. Flood (1998) 18 Cal.4th 470, 482, fn. 7 (Flood).)
The failure to instruct on each element of the charged offense is error under the state and federal constitutions. (Flood, supra, 18 Cal.4th at pp. 479-480.) Because the instruction at issue explains how the jury determines whether substantial movement has occurred where an associated crime is charged, we conclude the court committed constitutional error in failing to give it. We also conclude that Zamudio is entitled to reversal of the kidnapping count and the true finding of kidnapping under section 667.61, subdivision (e)(1) because the prosecution has failed to show "beyond a reasonable doubt that the error did not contribute to this jury's verdict." (Flood, supra, 18 Cal.4th at p. 504.)
In reaching this conclusion we reject the Attorney General's argument, based on a misreading or mischaracterization of the record, that Zamudio moved the victim only from outside to inside the gym. The Attorney General maintains that this movement "from outside to inside the gym cannot be said to be incidental to the robbery of TCS gym" and "was excessive and gratuitous, ultimately allowing [Zamudio] to commit a sexual assault upon her." The record shows that Zamudio took the victim inside the gym to search for money in the office and at the front desk, and back outside to get money from her car. The prosecution argued in support of the kidnapping count that this was "all looking for money."
Even if we were to conclude there was no sua sponte duty to instruct the jury with the bracketed portion of CALCRIM No. 1215, defense counsel's failure to request the instruction on incidental movement amounts to ineffective assistance of counsel in the circumstances of this case. "'To make a successful claim of ineffective assistance of counsel, the defendant must show that (1) counsel's representation was deficient, i.e., it fell below an objective standard of reasonableness under prevailing professional norms; and (2) counsel's deficient representation subjected the defense to prejudice, i.e., there is a reasonable probability that but for counsel's failings the result would have been more favorable.' [Citations.]" (People v. Cotton (1991) 230 Cal.App.3d 1072, 1080.) "[W]hen the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged, the case must be affirmed on appeal, unless counsel was asked for an explanation and failed to provide one or unless there simply could be no satisfactory explanation." (People v. Pope (1979) 23 Cal.3d 412, 426, italics added.) On this record, we can discern no strategic reason for defense counsel's failure to insure that the jury was properly instructed on the meaning of "substantial distance" for purposes of kidnapping. (See e.g., People v. Guzman (1995) 40 Cal.App.4th 691, 694 [no competent counsel would have had a rational tactical basis for declining to object to the failure to grant custody credit].) The Attorney General offers none in his brief on appeal and therefore appears to concede the issue. (People v. Bouzas (1991) 53 Cal.3d 467, 480.)
B. Sufficiency of the Evidence
Given our conclusion that the court prejudicially erred in instructing the jury on kidnapping, we will not address Zamudio's challenge to the sufficiency of the evidence. Should the prosecution elect to retry the kidnapping charge and special allegation on remand, we leave it to a properly instructed jury to decide whether the prosecution proved all the elements of simple kidnapping.
C. The Deadly Weapon Enhancement
Having reversed the true finding on the section 667.61, subdivision (e)(1) kidnapping circumstance, we turn to Zamudio's argument that we must strike the four-year section 12022.3, subdivision (a) deadly weapon enhancement imposed in count 1. He contends this is required because reversal of the kidnapping circumstance leaves true findings on only the burglary and deadly weapon circumstances under section 667.61, subdivisions (e)(2) and (e)(4), the minimum number necessary to impose an indeterminate sentence of 25 years to life under the one strike law. The Attorney General properly concedes the point.
Section 667.61, subdivision (f) reads in part:
"If only the minimum number of circumstances specified in subdivision (d) or (e) that are required for the punishment provided in subdivision (a) or (b) to apply have been pled and proved, that circumstance or those circumstances shall be used as the basis for imposing the term provided in subdivision (a) or (b), whichever is greater, rather than being used to impose the punishment authorized under any other provision of law, unless another provision of law provides for a greater penalty or the punishment under another provision of law can be imposed in addition to the punishment provided by this section."
Section 667.61, subdivision (a) requires proof of a minimum of two subdivision (e) circumstances to qualify the defendant for a sentence of 25 years to life. Thus, in this case, Zamudio should receive a sentence of 25 years to life, but not the four-year deadly weapon enhancement.
II. Robbery
A. Sufficiency of the Evidence
Zamudio argues there is insufficient evidence to show that he intended to rob the victim of her cell phone as alleged in count 4. Specifically, he asserts that the evidence fails to show that "he intended to steal the phone but rather intended to stop her from calling 9-1-1." Zamudio maintains that "the reasonable inference is that [he] took the phone to see who she had called; he did not take the phone with the intent to keep it forever." Neither the record nor the law supports Zamudio's argument.
To prove robbery, the prosecution must show that the defendant: (1) took property from the victim's person or immediate presence; (2) by means of force or fear; and (3) with the specific intent to permanently deprive the victim of the property. (§ 211; People v. Young (2005) 34 Cal.4th 1149, 1176-1177.) The evidence must show that the requisite intent to steal arose either before or during the commission of the act of force. (People v. Tafoya (2007) 42 Cal.4th 147, 170.) If the intent to steal arose only after force was used against the victim, the offense is theft, not robbery. (People v. Huggins (2006) 38 Cal.4th 175, 216.) Intent for purposes of proving robbery "is seldom established with direct evidence but instead is usually inferred from all the facts and circumstances surrounding the crime. [Citations.]" (People v. Lewis (2001) 25 Cal.4th 610, 643.) A jury may infer the intent to permanently deprive someone of their property when the defendant unlawfully takes the property of another. (People v. Morales (1993) 19 Cal.App.4th 1383, 1391 (Morales.)
In this case, Zamudio acknowledges that he intended to steal cash, but that he took the cell phone only to stop the victim from calling 9-1-1. However, the jury could reasonably infer his intent to permanently deprive her of the phone based on the fact he took it away from her on that occasion. (Morales, supra, 19 Cal.App.4th at p. 1391.) This inference is sufficient to sustain the robbery conviction. (Id. at p. 1394) It is of no legal consequence that Zamudio allowed the victim to keep the phone earlier when she took it out of her pocket in the gym office.
B. Section 654
Alternatively, Zamudio argues that the trial court erred in failing to stay the concurrent three-year robbery sentence pursuant to section 654 because the robbery was part of the same course of conduct as the burglary. To illustrate his point, Zamudio notes that for purposes of finding true the burglary circumstance alleged under section 667.61, subdivision (e)(2) in counts 1 and 2, the court instructed the jury that the burglary continued until he reached a place of temporary safety, "after, it would seem, he took the cell phone and left." We conclude that the record shows that the robbery and burglary were part of the same course of conduct and either the burglary or the robbery sentence must be stayed.
Where applicable, section 654, subdivision (a) prohibits multiple punishment for a single act or for a course of conduct comprised of indivisible acts. (People v. Miller (1977) 18 Cal.3d 873, 885 (Miller), implicitly overruled on another ground in People v. King (1993) 5 Cal.4th 59, 77-78; see also People v. Britt (2004) 32 Cal.4th 944, 951-954.) "'The divisibility of a course of conduct depends upon the intent and objective of the actor, and if all the offenses are incident to one objective, the defendant may be punished for any one of them but not for more than one. [Citation.]'" (Miller, supra, 18 Cal.3d at p. 885.) However, the court may impose separate punishment for each offense when the defendant has multiple criminal intents and objectives, even where the offenses were part of an otherwise indivisible course of conduct. (People v. Alvarado (2001) 87 Cal.App.4th 178, 196; People v. Green (1996) 50 Cal.App.4th 1076, 1084-1085.)
"Whether section 654 applies in a given case is a question of fact for the trial court, which is vested with broad latitude in making its determination." (People v. Jones (2002) 103 Cal.App.4th 1139, 1143.) We will uphold the trial court's express or implied finding regarding the defendant's intent and objectives if supported by substantial evidence. (Ibid.; People v. Porter (1987) 194 Cal.App.3d 34, 38.) "[T]he appropriate procedure at the appellate level is to eliminate the effect of the judgment as to the less severely punishable offense insofar as penalty alone is concerned, if the trial court did not exercise its discretion under section 654. [Citations.]" (People v. Thompson (1994) 24 Cal.App.4th 299, 308 (Thompson), italics in original.) The court must consider enhancements in deciding which provision provides for the longest potential term. (People v. Kramer (2002) 29 Cal.4th 720, 723.)
Here, the court did not address the section 654 issue at the time of sentencing for the robbery, but imposed the concurrent sentence because it "view[ed] this as one criminal episode...." However, there is no evidence to support an implied finding that Zamudio entertained separate objectives when he robbed the victim of her cell phone immediately before she fled. Nothing in the record shows that Zamudio had abandoned his effort to take money from the gym or the victim at the point she made her escape. Nor had he reached a place of safety. Indeed, the victim had left Zamudio standing in the parking lot next to her car. We therefore conclude that the burglary was still in progress when Zamudio took the victim's cell phone. The crimes represented a single objective and therefore constituted a single course of conduct for purposes of applying section 654. Accordingly, the trial court erred in failing to stay the sentence on the shorter of the burglary or robbery counts. (Thompson, supra, 24 Cal.App.4th at p. 308.)
III. Custody Credit
As a final matter, Zamudio argues and the Attorney General properly concedes that he is entitled to an additional day of presentence custody credit. The record reveals that the calculation of 288 days of actual time was erroneously based on an arrest date of March 28, 2008, instead of March 27, 2008. Thus, under People v. Smith (1989) 211 Cal.App.3d 523, 526, Zamudio should have received credit for 289 actual days in presentence custody.
DISPOSITION
The kidnapping conviction in count 5 is reversed, the true findings of kidnapping under section 667.61, subdivision (e)(1) are stricken in counts 1 and 2, and the deadly weapon enhancement is stricken in count 1. On remand, the district attorney has 60 days to decide whether to retry Zamudio on the kidnapping charge and special allegation. In the event the district attorney elects not to retry Zamudio, the court is directed to stay the sentence on either count 3 (burglary) or count 4 (robbery) pursuant to section 654, and to award Zamudio one day of presentence custody credit. The judgment is affirmed in all other respects.
WE CONCUR: McCONNELL, P. J., AARON, J.