Opinion
NOT TO BE PUBLISHED
Marin County Super. Ct. No. SC146043
Kline, P. J.
Introduction
Jorge Alberto Ek-Luna appeals from a judgment of conviction for rape, kidnapping and related offenses. He asserts multiple errors, primarily regarding kidnapping law. We affirm
Background
An information filed on June 7, 2006, charged Ek-Luna with rape (Pen. Code, § 261, subd. (a)(2)), kidnap to commit rape (§ 209, subd. (b)(1)), lewd act upon a child (§ 288, subd. (c)(1)), second degree robbery (§ 211), witness intimidation (§ 136.1, subd. (c)(1)), assault with a deadly weapon (§ 245, subd. (a)(1)), false representation to a peace officer (§ 148.9, subd. (a)), and injuring a wireless communication device (§ 591.5). Further details about the charges and the multiple enhancement allegations will be set out in the discussion of the relevant issues.
All further statutory references are to the Penal Code unless otherwise indicated.
At trial, 16-year-old “Jane Doe” testified through an interpreter that she came to the United States from her native El Salvador in July 2005. On the morning of February 13, 2006, she walked to San Rafael High School. Upon reaching the parking lot, she saw Ek-Luna behind her. He grabbed her from behind and took her cell phone, on which she had just finished a conversation. He covered her mouth with one hand and with the other he held a piece of glass—the top of a broken bottle—to her neck. He made her walk to the side and toward the back of the school building. It was about 8:05 a.m., classes had already started, so no one was outside. Half way along the length of the building he took her into the bushes, and threatened to kill her if she made noise. He told her to take off her clothes, which she did. He took off her underwear. He threw her to the ground and told her to open his pants, which she did. He took off his pants and underwear and had sex with her. After five or ten minutes, they got dressed.
Although this is nowhere indicated in the briefing, the Madrone High School to which witnesses sometimes refer appears to have been temporarily located on the same campus as San Rafael High.
With the jagged bottle top still at her neck, Doe followed Ek-Luna out of the bushes. He said he was taking her to a hotel to have “more sex” with her. There were people walking and cars driving by, but she couldn’t scream because “he had the thing on my neck.” He said if she told the police, he would “get even” with her. A police officer approached and Ek-Luna threw the bottle top and Doe’s cell phone under the patrol car. The officer had Ek-Luna stand aside while he talked to Doe through a translator. She did not remember whether she told the officer she had been sexually assaulted.
On cross-examination, Doe testified that the sharp-edged glass held to her neck did not wound her. At the preliminary hearing, she had testified that she had taken her underwear off at Ek-Luna’s request.
Several people observed Doe and Ek-Luna that morning. Driving to work, Cesar Flores saw a Hispanic man walking with a teen-aged Hispanic schoolgirl. The man looked drunk and the girl looked very scared, though Flores wasn’t sure if she was crying. The man’s arm was around the girl’s neck. Flores called the police. As San Rafael High School teacher Alexis Morgan was driving to work, she saw a man pushing a young girl across the street. The girl was distraught, crying. Moving van driver Douglas Martinez saw “a girl and a guy” whom he described as “Spanish.” The girl was crying; the man was holding her around the neck. Auto technician Oscar Garcia, a friend of Jane Doe’s mother, was test driving a car when he saw Doe, crying, walking with a man who had her in a headlock. He tried to call 9-1-1, but the police had already arrived, and he translated for them. None of the eyewitnesses saw anything in the man’s hands.
San Rafael Police Officer Michael Mathis was dispatched to the scene. He parked his patrol car and got out, as Ek-Luna and Doe walked toward him. As they approached, Ek-Luna removed his arm from around Doe’s shoulder. He appeared intoxicated. Doe was crying, so Mathis separated the two, sending Ek-Luna to sit near the patrol car’s right front tire while he interviewed Doe off to the side. Doe seemed upset, troubled. She told Mathis that Ek-Luna had approached her on her way to school and threatened to kill her at knife-point. Concerned for officer safety, Mathis obtained consent to search Ek-Luna and found only a wallet.
Oscar Garcia arrived on the scene and began to translate for Mathis. According to Garcia, Doe said Ek-Luna approached her from behind, held a piece of glass to her neck and said he would kill her if she didn’t go with him. He had taken her cell phone and said he was going to take her to a hotel to have sex with her. At that point, Mathis noticed a piece of brown glass and a cell phone under the patrol car’s right front tire, which Doe identified. She did not mention having been sexually assaulted.
According to Mathis, Garcia and Doe referred to “a piece of glass,” but then “they called it a bottle top.” Likewise, Mathis himself testified to seeing “a brown piece of glass” under his tire, which he later identified in a photograph as “the broken bottle top.”
About an hour and a quarter later, Mathis interviewed Jane Doe at the station through a police interpreter, at which time she said she had been sexually assaulted. During the ensuing investigation, a small leaf fell from Ek-Luna’s undergarments. Ek-Luna unsuccessfully tried to kick it into a drain in the center of the holding cell. The next day, Mathis collected leaves from the crime scene. In the opinion of Jose Ernesto Sandoval, curator of the UC Davis Botanical Conservatory, the leaf that fell from Ek-Luna’s underwear was from the same species of plant as a leaf collected from the crime scene and “could very well be from the exact same plant.” Ek-Luna gave Mathis a false name and birth date.
Registered nurse Linda Rouda performed a sexual assault examination on Jane Doe. She found no external injuries, but was unable to determine if there were internal injuries because Doe was too nervous and embarrassed to permit a complete examination. Rouda did obtain vaginal swabs, however, which revealed Ek-Luna’s semen. Ek-Luna’s blood, but not Doe’s, was found on the broken beer-bottle top.
The prosecution offered Marcia Blackstock, Executive Director of Bay Area Women Against Rape, as an expert on rape trauma syndrome. Her testimony will be set out in conjunction with discussion of Ek-Luna’s challenge to its admission. (See post, Part II.)
Twenty-seven-year-old Ek-Luna testified through an interpreter that early in the morning of February 13, 2006, after a night of drinking with friends, he fell asleep on a bus. When he awoke, he got off the bus and went looking for a telephone to call his friends to come pick him up. Eventually, Jane Doe walked by talking on her cell phone. She did not hear the first time he asked for the phone, but the second time, at the school parking lot, she closed and dropped the phone and he caught it. He did not threaten her; he did not bring out a broken bottle top. They walked side-by-side about a meter apart. He said he only needed the phone for a moment. There were other people in the parking lot. Ek-Luna and Doe walked around the side of the school building. He “invited” her to go into the bushes, which she did. He asked her to take off her clothes, which she did, and she helped him remove his pants. He did not threaten her or display a broken bottle top or push her down or cover her mouth. They had sex. She did not say anything; she did not scream.
They got dressed, she left, and he followed her. She did not run away or scream for help, but she began to cry because she did not know how to explain to her mother that she had had sex with him. She invited him to her house, but he was too tired. He didn’t threaten her; she didn’t ask any passersby for help. Then the police arrived, and the officer sat him down by the patrol car. Frightened by the conversation between Jane Doe and the officer—he was being accused of kidnapping—Ek-Luna took from his jacket pocket Doe’s cell phone and a piece of bottle he’d been carrying around since a fight the week before, and put them in front of the patrol car tire. (He had cut himself breaking the bottle.) At the police station, for the same reason, he kicked away the leaf that fell from his clothing and gave a false name. He had not forced Jane Doe to have sex with him or stolen her cell phone.
On cross-examination, Ek-Luna admitted he had not noticed the pay phones near where he got off the bus. When walking with Jane Doe, he was not holding her in the manner witnesses described (see ante), but rather embracing her “in a normal way.”
High school administrator Kathryn Hokanson, whose open window overlooked the bushes where the offense occurred, testified that she did not hear anything on the morning in question. The pathway along the side of the building was not well-travelled, though students would sometimes hang out in a nearby courtyard around 8:00 in the morning.
Ek-Luna’s friends Carlos Camara and Samuel Cervantes testified that Ek-Luna was a peaceful rather than a violent person. Jose Gomez testified about the fight that Ek-Luna mentioned in conjunction with the broken bottle top. On cross-examination, he testified he never saw Ek-Luna with a broken bottle top on that occasion. Camara and Gomez were drinking heavily with Ek-Luna on the night of February 12, 2006.
A jury found Ek-Luna guilty on all counts and all allegations to be true. The court sentenced him to 25 years to life on count 1 (forcible rape with aggravated kidnapping enhancement, §§ 261, subd. (a)(2); 667.61, subds. (a) & (d)) plus a four-year enhancement for personal use of a deadly weapon (§ 12022.3, subd. (a)), for a total of 29 years. On count 7 (misdemeanor giving false information to a police officer, § 148.9, subd. (a)), the court ordered a consecutive 30 days in county jail. Punishment for the remaining offenses and enhancements was stayed (§ 654). Ek-Luna filed a timely notice of appeal.
Discussion
I. Substantial Evidence
Ek-Luna first contends there was insufficient evidence to support the kidnapping conviction and the “One Strike” (§ 667.61) kidnapping findings. In connection with count 1 (forcible rape), the jury found true the One Strike allegations of aggravated kidnapping, simple kidnapping, and personal use of a deadly weapon (broken bottle). In count 2, the jury found Ek-Luna guilty of kidnapping to commit rape (§ 209, subd. (b)(1)).
Unless otherwise specified, all statutory references in Part I of this discussion are to subdivisions of this statute, which provides that a person convicted of an offense specified in subdivision (c) under one or more circumstances specified in subdivision (d) or two or more circumstances specified in subdivision (e) shall be punished by imprisonment for 25 years to life. (Subd. (a).) The specified offenses include forcible rape in violation of section 261, subdivision (a)(2). (Subd. (c)(1).) The applicable circumstances include kidnapping with movement that substantially increased the risk of harm to the victim over and above the level of risk inherent in the underlying offense (subd. (d)(2), “aggravated kidnapping”), kidnapping in violation of section 209 (subd. (e)(1), “simple kidnapping”), and personal use of a dangerous or deadly weapon in violation of sections 12022 and 12022.3 (subd. (e)(4)).
“On appeal we review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” (People v. Stanley (1995) 10 Cal.4th 764, 792.) “We do not reweigh the evidence; the credibility of the witnesses is a matter to be determined by the trier of fact.” (People v. Caplan (1987) 193 Cal.App.3d 543, 559.)
A. Substantially Increased Risk of Harm
“[F]or aggravated kidnapping, the victim must be forced to move a substantial distance, the movement cannot be merely incidental to the target crime, and the movement must substantially increase the risk of harm to the victim.” (People v. Dominguez (2006) 39 Cal.4th 1141, 1153 (Dominguez).) “The essence of aggravated kidnapping is the increase in the risk of harm to the victim caused by the forced movement.” (Id. at p. 1152.) Although the question is unsettled, the parties agree that substantially increased risk of harm is an element of kidnap for rape as well. (See id. at p. 1150 & fn. 5; CALCRIM No. 1203 & commentary thereto.) Ek-Luna contends the increased risk of harm in this case was “at best marginal or slight.”
In assessing the increased risk of harm, a jury should consider “whether the movement decreases the likelihood of detection, increases the danger inherent in a victim’s foreseeable attempts to escape, or enhances the attacker’s opportunity to commit additional crimes.” (Dominguez, supra, 39 Cal.4th at p. 1152.) Here, a reasonable jury could conclude that moving Jane Doe from an outdoor parking lot at a time when students and faculty were still arriving at school to a secluded spot in the bushes toward the back of the building substantially decreased the likelihood of detection and increased the opportunity for commission of further crimes. “The fact that these dangers do not in fact materialize does not, of course, mean that the risk of harm was not increased.” (People v. Rayford (1994) 9 Cal.4th 1, 14 (Rayford).) “The movement . . . changed the victim’s environment from a relatively open area . . . to a place significantly more secluded, substantially decreasing the possibility of detection, escape or rescue.” (Dominguez, supra, 39 Cal.4th at p. 1153.)
B. Substantial Movement
“[W]hether the victim’s forced movement was merely incidental to the rape is necessarily connected to whether it substantially increased the risk to the victim.” (Dominguez, supra, 39 Cal.4th at p. 1152.) In determining whether the movement is merely incidental, the jury considers “the context of the environment in which the movement occurred,” and the scope and nature of the movement, which includes the actual distance a victim is moved (Rayford, supra, 9 Cal.4th at p. 12), although no minimum distance has been established to satisfy the asportation requirement, as long as the movement is substantial. (Dominguez, supra, 39 Cal.4th at p. 1152.)
Ek-Luna contends that even assuming the movement from parking lot to bushes was, as the prosecutor asserted, 150 feet, it can not be considered substantial. As Ek-Luna points out, our Supreme Court has held that moving a victim around as much as 30 feet inside the premises (residence, place of business or other enclosure) was merely incidental to the commission of robbery, and that a service station, including the adjacent outdoor areas, is analogous to a place of business or enclosure. (Rayford, supra, 9 Cal.4th at pp. 12-13, quoting People v. Daniels (1969) 71 Cal.2d 1119, 1126, 1140 (Daniels); In re Crumpton (1973) 9 Cal.3d 463, 466, relying on People v. Williams (1970) 2 Cal.3d 894 [movement on the gas station premises].) But the distance in this case was substantially more than 30 feet, and the movement was neither inside nor on the premises. A sprawling suburban campus is hardly analogous to the compact indoor-outdoor premises of a service station.
II. Rape Trauma Syndrome
Based on pretrial briefing by both parties, the trial court allowed the prosecution to present expert testimony about rape trauma syndrome (RTS), “not to try to prove that the alleged sexual assault occurred, but simply to present proof that her, the alleged victim’s, conduct is consistent with [that of] someone who has been raped.” Since it was clear the defense intended to attack Doe’s credibility, the court agreed the evidence was relevant and probative for the limited purpose for which it was offered.
Accordingly, Marcia Blackstock, Executive Director of Bay Area Women Against Rape, testified as an expert in the area of RTS, and the common reactions of sexual assault victims. According to Blackstock, sexual assault victims do not always immediately try to escape from an attacker, because they are in shock and believe the attacker is all powerful. It is common for assault victims not to resist the attack or fight back. Most rape victims never report the assault and, if they do, it is almost always delayed anywhere from two hours to two weeks. That is because of the trauma of the assault, and fear of what the reaction of others might be. While the demeanor of reporting victims varies, it is often a strange, superhuman calmness. In order to function, most victims stay in a phase of “outward adjustment” for a long time, before acknowledging what happened and figuring out how to deal with it appropriately.
Having testified that her organization has a Latina outreach project serving mainly immigrants, Blackstock was asked whether there were any particular cultural stigma associated with rape in that community. Defense counsel objected that the question was overbroad and that no foundation had been laid regarding the witness’s expertise about cultural differences. The court ruled that if Blackstock’s experience permitted her to answer she would be allowed to do so; otherwise she would not answer. Blackstock then testified that often in Latino communities there is a stronger stigma attached to sexual assault than elsewhere. Moreover, it may be hard to obtain help for victims because of a general hesitancy to “take things outside the family” and the fear of deportation. Finally, the lack of physical injury in a majority of cases makes it harder for the victim to be believed. On cross-examination, Blackstock testified that while she speaks only a little Spanish, she works with English-speaking Latinas served by her agency.
Blackstock had not reviewed the police record, met Jane Doe, seen the physical evidence, nor been informed of the details of the case. On cross-examination, she explained that RTS describes the normal reaction of a victim; it does not indicate whether a rape occurred in any particular case. Some rape victims do have physical injuries, some fight back, some report the incident. Blackstock declined to answer a question about the sexual habits of young Latinas about which she claimed no expertise.
The prosecutor did not argue the RTS testimony to the jury, which was nonetheless instructed that it “is not evidence that the defendant committed any of the crimes charged against [him]. [¶] You may consider this evidence only in deciding whether or not [Jane Doe]’s conduct was not inconsistent with the conduct of someone who has been raped, and in evaluating the believability of her testimony.” (CALCRIM No. 1192.)
When an alleged rapist suggests to the jury that the victim’s conduct after the incident is inconsistent with her claim, “expert testimony on [RTS] may play a particularly useful role by disabusing the jury of some widely held misconceptions about rape and rape victims, so that it may evaluate the evidence free of the constraints of popular myths.” (People v. Bledsoe (1984) 36 Cal.3d 236, 247-248 (Bledsoe).) “[T]he expert testimony authorized by Bledsoe . . . is limited to discussion of victims as a class, supported by references to literature and experience (such as an expert normally relies upon) and does not extend to discussion and diagnosis of the witness in the case at hand.” (People v. Roscoe (1985) 168 Cal.App.3d 1093, 1100.)
In People v. Bowker (1988) 203 Cal.App.3d 385, 391-394, the court applied the Bledsoe rule in a case involving child sexual abuse accommodation syndrome. In order that the evidence be “tailored to the purpose for which it is being received,” the Bowker court held that “at a minimum the evidence must be targeted to a specific ‘myth’ or ‘misconception’ suggested by the evidence.” (Bowker, at pp. 393-394.) “In the typical criminal case . . . it is the People’s burden to identify the myth or misconception the evidence is designed to rebut. Where there is no danger of jury confusion, there is simply no need for the expert testimony.” (Id. at p. 394, citing Bledsoe, supra, 36 Cal.3d at p. 248 [rape victim promptly reported attack, immediately exhibited severe emotional reaction, suffered bruises and other physical injuries].) While “cases sometimes suggest that expert testimony only may be used [sic] to rebut defense attacks on the victim’s credibility” (People v. Housley (1992) 6 Cal.App.4th 947, 956), other courts have “specifically rejected the defendant’s contention that the admission of the expert testimony was necessarily error because it was introduced as part of the prosecution’s case-in-chief” (People v. Bergschneider (1989) 211 Cal.App.3d 144, 159, citing People v. Sanchez (1989) 208 Cal.App.3d 721, 735-736 [victim’s credibility attacked in cross-examination]).
Relying on Bowker, Ek-Luna contends the trial court erred in admitting the RTS testimony “without adequate scrutiny of the myths it was supposed to rebut.” We do not read Bowker’s adaptation of a rule formulated when RTS was “a rather recent concept” (Bledsoe, supra, 36 Cal.3d at p. 247), to require, two decades later, that the prosecution expressly identify the specific myths and misconceptions the RTS testimony in this case was obviously introduced to rebut, i.e., that a young woman who does not scream, resist, flee, sustain physical injury or immediately characterize the incident as rape has not, in fact, been raped. Doe’s conduct in this regard emerged from testimony introduced in the case-in-chief. Under these circumstances, it was not necessary to await Ek-Luna’s testimony to introduce the RTS evidence.
Ek-Luna also contends that Blackstone’s testimony about Latina sexual assault victims was improperly admitted without adequate foundational showing of her expertise in cultural differences (Evid. Code, §§ 720, subd. (a); 801). Where, as here, there is an objection, Evidence Code section 720 requires a proponent of expert testimony to establish the witness’s qualifications. (People v. Hogan (1982) 31 Cal.3d 815, 852.) Those qualifications “must be related to the particular subject upon which [s]he is giving expert testimony. Qualifications on related subject matter are insufficient.” (Ibid.) “The trial court is given considerable latitude in determining the qualifications of an expert and its ruling will not be disturbed on appeal unless a manifest abuse of discretion is shown.” (People v. Kelly (1976) 17 Cal.3d 24, 39.) Such abuse of discretion will be found only where the evidence shows that a witness clearly lacks qualification as an expert. (People v. Chavez (1985) 39 Cal.3d 823, 828.)
Here, the trial court did not abuse its discretion by allowing Blackstone to answer a few short questions about Latina rape victims to the extent her experience enabled her to do so. Moreover, “[a]bsent fundamental unfairness, state law error in admitting evidence is subject to the traditional Watson test [People v. Watson (1956) 46 Cal.2d 818, 836]: The reviewing court must ask whether it is reasonably probable the verdict would have been more favorable to the defendant absent the error.” (People v. Partida (2005) 37 Cal.4th 428, 439.) It is not.
III. Trial Court’s Reply to Jury’s Question
Five counts of the information included allegations of personal use of a dangerous weapon, to wit, a broken bottle (§§ 12022.3, subd. (a); 12022, subd. (b)(1)). Accordingly, the jury was instructed, inter alia, that “[s]omeone personally uses a deadly [or dangerous] weapon if he or she intentionally . . . [¶] . . . displays the weapon in a menacing manner” (CALCRIM No. 3145). During deliberations, the jury asked, “Does the term ‘personal use of a deadly or dangerous weapon’ require the victim to have visually seen the weapon?” After conferring with counsel and reviewing the case law, the court replied: “As to the term ‘personal use of a deadly or dangerous weapon’ generally, see [I]nstruction number 3145. The word ‘displays’ . . . means that the alleged victim must be aware of the presence of the alleged deadly or dangerous weapon. However, the law does not require that such awareness be accomplished or made through the sense of sight.” Ek-Luna contends this answer was inadequte, unbalanced, and coerced a verdict.
“The court has a primary duty to help the jury understand the legal principles it is asked to apply.” (People v. Beardslee (1991) 53 Cal.3d 68, 97.) “Where the original instructions are themselves full and complete, the court has discretion . . . to determine what additional explanations are sufficient to satisfy the jury’s request for information.” (Ibid.) “It should decide as to each jury question whether further explanation is desirable, or whether it should merely reiterate the instructions already given.” (Ibid.) Here, the court did both, evidently to the jury’s satisfaction, as no further clarification was requested.
Ek-Luna relies on People v. Guilmette (1991) 1 Cal.App.4th 1534, 1542-1543, in which the jury in a rape case posed virtually the same question, and the trial court replied that the term “display” was self-explanatory and referred the jury back to the original instruction. The court held the trial court’s response was “entirely appropriate.” This does not, however, mean it would be inappropriate to offer further explanation, and Ek-Luna cites no authority holding that “display” necessarily implies visual perception. In a case involving a firearm use allegation (§ 12022.5), the court held that “a firearm is displayed when, by sensory perception, the victim is made aware of its presence.” (People v. Jacobs (1987) 193 Cal.App.3d 375, 381.) As the court noted, limiting “display” to visual observation can have absurd results when, for example, the victim is visually impaired or a concealed weapon is aimed through the defendant’s clothing (ibid., fn. 3), or where, as here, a sharp object—knife or jagged piece of glass—is held to the victim’s neck possibly out of her range of vision.
There was no abuse of discretion in the trial court’s response to the jury’s question.
IV. One Strike Kidnap Instruction
As previously indicated (ante, at p. 6 & fn. 5), count 1 of the information (forcible rape), contained an aggravated kidnapping One Strike sex offense allegation. This sentencing enhancement is triggered when “[t]he defendant kidnapped the victim of the present offense and the movement of the victim substantially increased the risk of harm to the victim over and above that level of risk necessarily inherent in the underlying offense . . . .” (§ 667.61, subd. (d)(2).)
In a modified version of CALCRIM No. 3175, the trial court instructed the jury that in order to prove the allegation true, the prosecution must prove, inter alia, that Ek-Luna moved Jane Doe a substantial distance, which substantially increased the risk of harm beyond that necessarily present in the crime of rape. “Substantial distance,” the court said, “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 must also consider other factors in order to determine whether the movement substantially 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 shorter, standard version of No. 3175 instructs, “Substantial distance means more than a slight or trivial distance. The movement must be more than merely incidental to the commission of [rape]. In deciding whether the distance was substantial and whether the movement substantially increased the risk of harm, you must consider all the circumstances relating to the movement.”
Ek-Luna contends the modified instruction (as well as the simple kidnapping instruction) erroneously omitted the “more than merely incidental” language, and also consideration of “all the circumstances” (including specific factors) on the issue of substantially increased risk of harm.
CALCRIM No. 1215, kidnapping in violation of section 207, a lesser offense of the crime of kidnapping to commit rape charged in count 2. The jury was also instructed to refer to No. 1215 in connection with the One Strike simple kidnapping allegation in count 1 (see ante, fn. 5). (CALCRIM No. 3179.)
Ek-Luna implies that, by contrast, “the Count 2 instruction” and “the simple kidnapping instruction” do include “all the circumstances” language “on the separate issue of a substantial increase in risk (versus substantial movement).” Assuming that the former reference is to CALCRIM No. 1203 (Kidnapping for Rape) and the latter to CALCRIM No. 1215 (Kidnapping), the modified versions given in this case do not conform to his descriptions.
“Jury instructions must be read together and understood in context as presented to the jury. Whether a jury has been correctly instructed depends upon the entire charge of the court.” (People v. Tatman (1993) 20 Cal.App.4th 1, 10.) In evaluating instructions, the question is whether there is a reasonable likelihood that the jury misunderstood the charge. (People v. Kelly (1992) 1 Cal.4th 495, 525.) “Jurors are presumed to be intelligent persons capable of understanding and correlating jury instructions. [Citation.] An erroneous instruction requires reversal only when it appears that the error was likely to have misled the jury.” (People v. Brock (2006) 143 Cal.App.4th 1266, 1277.)
It is undisputed that non-incidental movement is a factor in the asportation element of both simple and aggravated kidnapping when an associated crime is involved. (See ante, part I; People v. Diaz (2000) 78 Cal.App.4th 243, 246.) “The interpretation of ‘incidental’ depends on the facts of the particular case” (People v. Aguilar (2004) 120 Cal.App.4th 1044, 1052; see also ante, part I(B)), but the merely-incidental factor is related to the substantially-increased-risk factor in such a way that movement that substantially increases the victim’s risk of harm is, perforce, not merely incidental to the associated crime. (See Aguilar, supra, 120 Cal.App.4th at p. 1049, citing Rayford, supra, 9 Cal.4th at p. 23.)
The Attorney General argues that any error was cured by the fact that the jury found Ek-Luna guilty of kidnapping for rape (count 2) under instructions that expressly provided the People must prove the victim was moved “a distance beyond that merely incidental to the commission of a rape” (CALCRIM No. 1203). (See People v. Jones, supra, 58 Cal.App.4th at p. 709 [where court entirely failed to instruct on elements of One Strike circumstances, to extent required findings necessarily follow from findings on other issues, either no error or harmless beyond reasonable doubt].) If the error was not so cured, it was nonetheless harmless.
Ek-Luna suggests that the findings in counts 1 and 2 may have been based on two different movements, because in arguing count 1 to the jury, the prosecutor relied entirely on the movement from the parking lot to the bushes, whereas in arguing count 2, he also mentioned the movement from the bushes to the point at which they encountered Officer Mathis.
Contrary to Ek-Luna’s assertion, movement that is not merely incidental to the commission of the associated offense is not an “essential element” of the crime of kidnapping, but rather a circumstance for the jury to consider in weighing the substantial distance factor of the asportation element. Thus any instructional error in this regard is far from implicating a federal constitutional right subject to the Chapman standard of prejudice (Chapman v. California (1967) 386 U.S. 18, 24). In the context of the entire charge, the challenged omission was not likely to have misled the jury and inclusion of the omitted phrases was not reasonably probable to lead to a more favorable outcome. (People v. Watson, supra, 46 Cal.2d at p. 836.)
V. Asportation Elements of Kidnapping Offenses
Next, Ek-Luna contends that California law defining the asportation elements of simple and aggravated kidnapping and distinguishing between them is unconstitutionally vague on its face and as applied, and denies him due process and equal protection of the law.
“Due process requires fair notice of what conduct is prohibited. A statute must be definite enough to provide a standard of conduct for its citizens and guidance for the police to avoid arbitrary and discriminatory enforcement.” (People v. Townsend (1998) 62 Cal.App.4th 1390, 1400.) “A statute is not vague if . . . any reasonable and practical construction can be given to its language.” (Id. at p. 1401.) There is a strong presumption that legislative enactments must be upheld unless they are “clearly, positively, and unmistakably” unconstitutional. (Williams v. Garcetti (1993) 5 Cal.4th 561, 568.) “Equal protection requires the state to treat similarly situated persons alike, with some exceptions in which the disparate treatment is sufficiently related to the purpose of the statute in question.” (People v. Jacobs (1992) 6 Cal.App.4th 101, 103.)
The essence of Ek-Luna’s claim seems to be that (1) there is no fixed minimum distance that satisfies the substantial movement element of asportation, and (2) the asportation element in all cases of kidnap with an associated crime, whether labeled “simple” or “aggravated,” involves jury consideration of the same three factors: substantial movement, non-incidental movement and increased risk of harm. (See People v. Martinez (1999) 20 Cal.4th 225, 232-238.) Therefore, he asserts, the kidnapping statutes are susceptible to arbitrary enforcement, with “widely divergent results” in terms of conviction and sentencing on similar facts.
Our Supreme Court has repeatedly reiterated the conclusion it reached almost 40 years ago that to define the “actual distance” aspect of the asportation element of kidnapping “in terms of a specific number of inches or feet or miles would be open to a charge of arbitrariness.” (Daniels, supra, 71 Cal.2d at p. 1128; Rayford, supra, 9 Cal.4th at p. 12; Martinez, supra, 20 Cal.4th at p. 233.) By contrast, a standard such as “substantial” is “not impermissively vague, provided [its] meaning can be objectively ascertained by reference to common experiences of mankind.” (Daniels, supra, 71 Cal.2d at pp. 1128-1129.) The asportation cases amply illustrate, and the standard instructions explain, that the import of the actual distance a victim is moved depends on all the other circumstances related to the movement.
Ek-Luna also complains that in cases like this one, involving an associated crime, “the asportation elements explained in Martinez for simple kidnapping (the ‘substantial’ distance element) appear to be the very same as the asportation elements for aggravated kidnapping, which is supposed to be based on a more serious asportation.” Ek-Luna does not purport to challenge the actual statutory language, and his general reference to the Martinez court’s convoluted five-page discussion of the asportation or substantial distance element of simple kidnapping is unhelpful. But a comparison of the two instructions he does cite, as given in this case, reveals that the simple kidnapping instruction, CALCRIM No. 1215 (§ 207, subd. (a)), tells jurors that, in addition to the actual distance moved, they may consider other enumerated factors, while they must do so under the One Strike aggravated kidnapping instruction, CALCRIM No. 3175 (§ 667.61, subd. (d)(2).) Moreover, in the simple kidnapping instruction, one of the enumerated factors is whether the movement increased the risk of harm, whereas in the aggravated kidnapping instruction, that factor is a substantially increased risk of harm.
The main flaw in Ek-Luna’s contention, however, lies in his unsupported assertion that aggravated kidnapping is “supposed to be based on a more serious asportation.” It would appear, rather, that the aggravating element is the associated crime—thus the similarity he notes between the elements of an aggravated kidnapping allegation and simple kidnapping with an associated crime. Ek-Luna points out that unlike the offense of kidnapping to commit rape alleged in count 2 (see CALCRIM No. 1203), One Strike aggravated kidnapping does not require specific intent to commit rape. This is perhaps because it is an enhancement allegation the jury does not even reach unless it has already found the defendant guilty of rape.
There is no gainsaying the fact that California law governing the asportation element of kidnapping is not a model of clarity; the same may be said of Ek-Luna’s argument. What is clear, however, is that he has not demonstrated any of the alleged constitutional infirmities.
VI. Rape Trauma Syndrome Instruction
In Sandstrom v. Montana (1979) 442 U.S. 510, 512, 524 (Sandstrom), the Supreme Court held that when intent is an element of the crime charged, a jury instruction that “ ‘the law presumes that a person intends the ordinary consequences of his voluntary acts’ ” violates the requirement that the state prove every element of a criminal offense beyond a reasonable doubt because it may have been interpreted to create either a burden-shifting or a conclusive presumption. The court rejected the contention that the instruction merely described a permissive inference (allowing but not requiring conclusions to be drawn from actions), because it was undisputed that the jury may have believed it was required to apply the presumption. (Id. at pp. 514-515.)
Because Ek-Luna’s argument contains multiple conflations of the Sandstrom categories, it is helpful to remember that an instruction can contain either a mandatory presumption or a permissive inference. A mandatory presumption can be either conclusive (not technically a presumption at all, but rather an irrebuttable direction) or rebuttable, i.e. burden-shifting. If rebuttable, it may shift the burden of either production or proof. (Sandstrom, supra, 442 U.S. at pp. 514-515.)
Ek-Luna contends that Sandstrom invalidates the following instruction given in this case: “You have heard testimony from Marcia Blackstock [see ante, Part II], regarding [RTS]. Marcia Blackstock’s testimony about [RTS] is not evidence that the defendant committed any of the crimes charged against [him]. [¶] You may consider this evidence only in deciding whether or not [Jane Doe]’s conduct was not inconsistent with the conduct of someone who has been raped, and in evaluating the believability of her testimony.” (CALCRIM No. 1192.) The jury was also instructed on the presumption of innocence and proof beyond a reasonable doubt (CALCRIM No. 220), limited purpose evidence (CALCRIM No. 303), and expert witness testimony (CALCRIM No. 332, including that jury may disregard any opinion it finds unbelievable, unreasonable or unsupported by evidence).
Ek-Luna first contends the instruction creates a mandatory presumption that if the jury finds the victim’s conduct “consistent with RTS testimony” it “should or could” conclude that a rape occurred and the complainant is believable. In fact, unlike the Sandstrom instruction (“the law presumes”), the RTS instruction contains no language a reasonable juror could construe as mandatory. (See Sandstrom, supra, 442 U.S. at pp. 514-515.) Rather, jurors are instructed that they “may” consider the RTS testimony in evaluating Jane Doe’s credibility, but, as Ek-Luna virtually acknowledges, the first paragraph expressly warns them not to consider it as evidence of the charged crimes.
Alternatively, Ek-Luna contends, “Even if it [were] found that the final paragraph of the instruction did not create a conclusive presumption,” it creates a “permissive presumption that reasonable jurors could apply to shift and reduce the prosecution’s burden of proof.” This assertion conflates the Sandstrom categories. First, it appears that in the contention discussed above, when Ek-Luna said “mandatory,” he also meant “conclusive,” despite the phrase “should or could.” Second, despite the italics and the permissive “could,” based upon his quotation from Sandstrom, supra, 442 U.S. at page 524, this contention appears to refer to what the Sandstrom court called a burden-shifting (as opposed to conclusive) presumption (id. at pp. 515, 517), rather than to a permissive inference (id. at pp. 514-515). A presumption shifting the burden of production or persuasion is also mandatory (id. at p. 515), and as indicated above there is no mandatory language in the RTS instruction. As to shifting or reducing the burden of proof, Ek-Luna does not identify what element of the crime (in Sandstrom it was intent) was affected in this way. The jury was instructed that it could consider the RTS evidence only on the issue of Jane Doe’s credibility, which is not an “element” of any of the charged crimes.
Finally, Ek-Luna argues that “even if the presumption is permissive” a violation occurs if “the inference it states” is tenuous or arbitrary, citing Hanna v. Riveland (9th Cir. 1996) 87 F.3d 1034, 1037-1039. In that case, reckless driving was an element of the charged crimes—vehicular homicide and vehicular assault. The court held it was constitutional error to tell the jury that “[a] person who drives in excess of the maximum lawful speed . . . may be inferred to have driven in a reckless manner” because the instruction relieved the government of the burden of proving beyond a reasonable doubt that the defendant drove in a reckless manner. By contrast, the RTS instruction in this case did not relieve the government of the burden of proving any element of the charged crimes.
VII. Robbery Instruction
In connection with the robbery charge based on Ek-Luna’s having taken Jane Doe’s cell phone (count 4), the jury was instructed that a finding that Ek-Luna knowingly possessed property that had, in fact, been recently stolen is insufficient, alone, to support a robbery conviction. “However, if you also find that supporting evidence tends to prove [his] guilt, then you may conclude that the evidence is sufficient to prove [he] committed [robbery]. [¶] The supporting evidence need only be slight and need not be enough by itself to prove guilt.” (CALCRIM No. 376.) Ek-Luna contends this instruction lessened the prosecution’s burden and stated “an irrational permissive inference of guilt” in violation of his due process rights.
Ek-Luna acknowledges that several courts have rejected challenges to the predecessor instruction, CALJIC No. 2.15 (see, e.g., People v. Snyder (2003) 112 Cal.App.4th 1200, 1225-1228 and cases cited therein), but contends none of them addressed his contention that the “slight” corroboration language impermissibly reduces the government’s burden of proof. On the contrary, the Snyder court cites no fewer than five cases (including opinions of the United States and California Supreme Courts) for the proposition that, “Requiring only ‘slight’ corroborative evidence in support of a permissive inference, such as that created by possession of stolen property, does not change the prosecution’s burden of proving every element of the offense, or otherwise violate the accuser’s [sic] right to due process unless the conclusion suggested is not one that reason or common sense could justify in light of the proven facts before the jury.” (Id. at pp. 1226-1227.) Lest there be any confusion, CALCRIM No. 376 itself expressly instructs, “Remember that you may not convict the defendant of any crime unless you are convinced that each fact essential to the conclusion that the defendant is guilty of that crime has been proven beyond a reasonable doubt.”
Ek-Luna dismisses Snyder in a footnote saying he disagrees with it, and moreover it does not address his contention that the instruction states an “irrational” permissive inference of guilt. This contention is based on cases holding that an earlier version of CALJIC No. 2.15 providing, “The mere fact that a person was in conscious possession of recently stolen property is not enough to justify his conviction of the [theft] crimes charged in the information,” but is rather one circumstance to be considered, impermissibly implies that the evidence established possession, where the evidence was, in fact, conflicting or unclear. (People v. Morris (1988) 46 Cal.3d 1, 40; People v. Rubio (1977) 71 Cal.App.3d 757, 767-768.) CALCRIM No. 376 avoids that problem by instructing, “If you conclude that the defendant knew [he] possessed property and you conclude that the property had in fact been recently [stolen], you may not convict the defendant of [robbery] based on those facts alone.” (Italics added.)
VIII. Reasonable Doubt Instructions
The jury was given a modified version of CALCRIM No. 220, which instructed, inter alia, that “[p]roof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the charge is true,” and that in deciding whether the prosecution had proved its case beyond a reasonable doubt, “you must impartially compare and consider all the evidence that was received throughout the entire trial.” It was also instructed, “You must decide what the facts are in this case. You must use only the evidence that was presented in this courtroom [or during a jury view]. ‘Evidence’ is the sworn testimony of witnesses, the exhibits admitted into evidence, and anything else I told you to consider as evidence.” (CALCRIM No. 222, see also No. 200.)
Ek-Luna contends these instructions are constitutionally invalid because they do not instruct that reasonable doubt may be based on the absence of evidence, and that the “abiding conviction” language conveys a “clear and convincing” rather than “beyond a reasonable doubt” standard of proof. While it is certainly error to suggest the defendant has the burden of producing affirmative evidence to demonstrate a reasonable doubt of his guilt (People v. Hill (1998) 17 Cal.4th 800, 831-832), Ek-Luna admits that challenges to CALCRIM No. 220 on this very ground have been repeatedly rejected (see e.g., People v. Guerrero (2007) 155 Cal.App.4th 1264, 1267-1269; People v. Flores (2007) 153 Cal.App.4th 1088, 1091-1093; People v. Westbrooks (2007) 151 Cal.App.4th 1500, 1509-1510; People v. Hernándes Ríos (2007) 151 Cal.App.4th 1154, 1156-1157). Although Ek-Luna disagrees with these decisions, he has not persuaded us to do the same. He also recognizes that California courts have consistently upheld the “abiding conviction” language (People v. Freeman (1994) 8 Cal.4th 450, 501-505; see also Victor v. Nebraska (1994) 511 U.S. 1, 14-15 [“An instruction cast in terms of an abiding conviction as to guilt, without reference to moral certainty, correctly states the government’s burden of proof.”].)
IX. Cumulative Prejudicial Effect
The most succinct response to Ek-Luna’s contention that the cumulative effect of the errors he has thus far alleged deprived him of due process and a fair trial is the Attorney General’s: “There was no cumulative prejudice because there was no cumulative error.”
Because Ek-Luna returns, at the very end of his long opening brief, to issues involving charges, allegations, statutory provisions, instructions and findings discussed in connection with previous contentions, a certain amount of repetition appears unavoidable for the sake of clarity.
As previously indicated, Ek-Luna was charged in count 1 with forcible rape (§ 261, subd. (a)(2)) with both aggravated and simple kidnapping One Strike enhancement allegations, and in count 2 with kidnapping for rape (§ 209, subd. (b)(1)). The jury found him guilty of both offenses and found both allegations to be true.
The One Strike sex offense enhancement statute (see ante, fn. 5) applies to any person convicted of certain specified offenses, including rape in violation of section 261, subdivision (a)(2). (§ 667.61, subd. (c)(1).) It prescribes a term of 25 years to life if “[t]he defendant kidnapped the victim of the present offense and the movement of the victim substantially increased the risk of harm to the victim over and above that level of risk necessarily inherent in the underlying offense . . . .” (§ 667.61, subds. (a), (c) & (d)(2); “aggravated kidnapping”), and a term of 15 years to life if “[e]xcept as provided in paragraph (2) of subdivision (d), the defendant kidnapped the victim of the present offense in violation of Section 207, 209, or 209.5.” (§ 667.61, subds. (b), (c) & (e)(1); “simple kidnapping”). Section 209 provides that any person who kidnaps another person in order to commit rape shall be punished by imprisonment for life with the possibility of parole, if the movement is “beyond that merely incidental to the commission of, and increases the risk of harm to the victim over and above that necessarily present in, [rape].” (§ 209, subds. (b)(1) & (2).)
Ek-Luna contends that, under the facts of this case, imposition of the enhancement term of 25 rather than 15 years to life deprived him of due process and equal protection because the statutory descriptions of the “triggering circumstances” for an aggravated kidnapping enhancement and the offense of kidnapping for rape, which can be used as a predicate for a simple kidnapping enhancement, are “functionally the same,” yet there is a 10-year difference in the minimum penalty, and no meaningful basis for determining which provision applies. We note that by its terms, the simple kidnapping enhancement provision applies “[e]xcept as provided in paragraph (2) of subdivision (d),” the aggravated kidnapping enhancement provision. (§ 667.61, subd. (e)(1).) Moreover, “An act . . . that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment,” as long as it is not punished under more than one provision. (§ 654.)
While the information alleged that Ek-Luna kidnapped Jane Doe in violation of section 209 within the meaning of section 667.61, subdivision (e)(1), the jury’s verdict was that he kidnapped her within the meaning of section 667.61, subdivision (e)(1), without reference to a specific kidnapping statute.
Ek-Luna characterizes the One Strike instructions on simple and aggravated kidnapping as “practically indistinguishable.” As relevant to this argument, the version of CALCRIM No. 3175. Sex Offenses: Special Allegation—Aggravated Kidnapping given in this case provided that the People must prove that Ek-Luna moved Jane Doe a substantial distance by force or fear, substantially increasing the risk of harm beyond that necessarily present in the crime of rape. Substantial distance was defined as “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 must also consider other factors in order to determine whether the movement substantially 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.”
None of the cases in Ek-Luna’s bare list of citations (Skinner v. Oklahoma (1942) 316 U.S. 535, 538-541 [habitual criminal sterilization act, applicable to some thefts but not others, violates equal protection]; People v. Glaze (1980) 27 Cal.3d 841, 845-846 [municipal ordinance restricting First Amendment activity of some commercial enterprises violates equal protection]; Hale v. Morgan (1978) 22 Cal.3d 388, 399 [statutory penalty against landlord for depriving tenant of utility services constitutionally excessive]; In re Kapperman (1974) 11 Cal.3d 542, 545 [custody credit statute violates equal protection unless extended to all convicted felons regardless of commitment date]; Ex Parte Whitwell (1893) 98 Cal. 73, 79 [county ordinance regulating insane asylums imposes unreasonable restraint on constitutional right to pursue lawful trade or business]; State v. Rowe (Wash. 1980) 609 P.2d 1348, 1350-1352 [standards for filing habitual criminal actions that create two classes of felonies do not deny due process or equal protection]) suggests that when a jury has found that a defendant’s conduct comes within the terms of more than one properly alleged sentence-enhancement provision, it is a violation of due process to impose the more severe of the statutory penalties.
“Prerequisite to a meritorious claim under an equal protection analysis is a showing that the state has imposed a classification [that] affects two or more similarly situated groups.” (Duffy v. State Personnel Bd. (1991) 232 Cal.App.3d 1, 20.) But while Ek-Luna argues for a strict scrutiny standard of review because personal liberty is a fundamental interest, he has omitted the first step of identifying a classification that results in disparate treatment of similarly situated persons. People convicted of different crimes are not similarly situated for equal protection purposes. (People v. Barrera (1993) 14 Cal.App.4th 1555, 1565.) Anyone who is found to come within the purview of section 667.61, subdivision (d)(2) is subject to a sentence of 25 years to life.
Though we need not reach this issue, we note that “the fact that liberty interests are involved in criminal punishment does not mean that every criminal law imposing punishment is subject to strict scrutiny.” (People v. Kilborn (1996) 41 Cal.App.4th 1325, 1330.)
Disposition
The judgment is affirmed.
We concur: Haerle, J., Richman, J.
Although we will use the usual term, at least one court believes the One Strike law is not a true “enhancement,” but rather a “penalty provision” or “alternative sentencing scheme.” (People v. Jones (1997) 58 Cal.App.4th 693, 709 & fn. 9.)
The version of CALCRIM No. 3179. Sex Offenses: Special Allegation—Kidnapping given in this case instructed the jury, “To decide whether the defendant kidnapped Jane Doe, please refer to the separate instructions that follow regarding kidnapping. See especially instruction number 1215.” (CALCRIM No. 1215.) Kidnapping, defines a violation of section 207, a lesser offense of kidnap to commit rape, charged in count 2. As given here, it provides that the People must prove Ek-Luna moved Jane Doe a substantial distance by force or fear. Substantial distance was defined as “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 standard version of CALCRIM No. 1215 has an additional paragraph to be given upon request when an associated crime is charged: “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 _____.” (See CALCRIM No. 1215 (2007 ed.) Bench Notes.) This paragraph was not requested or given, even though the trial court specifically referred the jury to this instruction for the purpose of deciding whether the simple kidnapping enhancement alleged in association with the rape charge was true.