Opinion
G053851
05-29-2018
THE PEOPLE, Plaintiff and Respondent, v. ERNESTO LUIS ESCAMILLA, Defendant and Appellant.
Glenn Osajima and Renee Garcia for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Collette C. Cavalier and Joy Utomi, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 14NF4554) OPINION Appeal from a judgment of the Superior Court of Orange County, Richard M. King and Michael A. Leversen, Judges. Affirmed. Glenn Osajima and Renee Garcia for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Collette C. Cavalier and Joy Utomi, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
Based on his assault of his estranged wife in her home, a jury convicted Ernesto Luis Escamilla of residential burglary (Pen. Code, §§ 459, 460, subd. (a); all further statutory references are to this code unless noted), domestic violence battery causing injury with a prior conviction for battery or assault (§ 273.5, subds. (a), (f)(1)), kidnapping (§ 207, subd. (a)), criminal threats (§ 422, subd. (a)), false imprisonment by violence (§§ 236, 237, subd. (a)), and violation of a protective order with a prior conviction (§ 166, subd. (c)(4)). In bifurcated proceedings, the trial court found enhancement allegations true concerning a prior serious felony conviction (§§ 667, subd. (a)(1)); 1192.7, subd. (c)(1), a prior serious and violent felony (§§ 667, subd. (d), (e)(1); § 1170.12, subd. (b), (c)(1)), and five prison priors (§ 667.5, subd. (b)). The trial court sentenced Escamilla to an aggregate prison term of 21 years and 8 months. On appeal, he contends the court erred in denying his continuance request at the start of the trial to seek retained counsel; he challenges the sufficiency of the evidence to support his burglary conviction when he only intended to speak with the victim after surprising her in her garage; and he asserts several claims of instructional error. As we explain, these contentions are without merit and we therefore affirm the judgment.
I
FACTUAL AND PROCEDURAL BACKGROUND
Escamilla and Jane Doe met as teenagers and had a child together, but then separated. In 2009, after more than 20 years apart, Escamilla and Doe reconnected, began a romantic relationship, and Escamilla moved into Doe's home. Over the next four years, repeated incidents of domestic violence between the two led to police involvement and protective orders.
After a physical altercation in June 2010, Escamilla pleaded guilty to spousal abuse and the court issued a protective order requiring him to stay away from Doe. Doe and Escamilla reconciled and with the protective order still in effect, the two drove to Las Vegas and got married.
In November 2011, Doe told Escamilla she wanted a divorce. Escamilla became angry and pushed Doe, who fell and hit her head on a bookshelf. Escamilla pleaded guilty to corporal injury upon a spouse, and the court issued another protective order. Again, Doe and Escamilla reconciled and Escamilla moved back into their home.
In February 2012, Doe asked Escamilla to move out. Escamilla became violent and told Doe the only way she would leave their relationship was with a "slit throat" in a "body bag." Escamilla pleaded guilty to criminal threats and violation of an order for this incident, and the court issued a new protective order. In October 2012, Escamilla pleaded guilty to violating a protective order by contacting Doe while incarcerated. After Escamilla's release from custody, Doe and Escamilla reconciled and Escamilla moved back into Doe's home notwithstanding multiple protective orders.
In September 2013, after another incident with Doe, Escamilla pleaded guilty to violating a restraining order. The two reconciled again, but in August 2014, Doe permanently ended the relationship by requiring Escamilla to move out and enforcing the protective orders. Throughout the month of September, Doe contacted police on three separate occasions upon finding Escamilla at her residence in violation of a protective order.
On October 21, 2014, Doe arrived home from work around 8 p.m. After she drove into her garage, she saw Escamilla standing inside her garage. Doe had not invited Escamilla over or given him permission to enter her garage. Doe told Escamilla he needed to leave and warned him she would call the police, but Escamilla tried to grab her cell phone. When Doe tried to keep Escamilla from getting her phone by slapping and pushing him away, Escamilla punched Doe in her head repeatedly, wrestled her phone away from her, and pulled her from the car before throwing her to the ground. When Doe screamed for help, Escamilla covered her nose and mouth with his hand, and she could not breathe.
Eventually, Escamilla let Doe stand up. Doe decided she would try to contact police using the phone inside her house and tried to elude Escamilla, who followed her from the garage into the house. Doe pleaded with Escamilla to return her phone. When Escamilla refused, she ran toward the front door. Escamilla grabbed Doe by the hair and struck her repeatedly in the face. Doe began bleeding from her nose and fell to the floor. Escamilla climbed on top of Doe and again covered her nose and mouth when she screamed for help. Eventually, he stood up and pulled Doe to her feet.
Doe was bleeding badly and told Escamilla she needed to go to the hospital. Escamilla replied, "You're not going anywhere bitch. Get up those stairs." He pushed Doe up a flight of eight stairs to a landing in the living room. But then Escamilla ran back downstairs to the garage. Doe grabbed her landline phone, dialed 911, and laid the phone down with the line connected but without speaking to the 911 operator to avoid Escamilla discovering the call.
Escamilla returned and told Doe to go up another flight of stairs and wash her face. Following her, he ordered her away from her master bathroom and pushed her into a small hallway bathroom, closing the door behind them. When Doe continued to plead for Escamilla to let her go to a hospital, Escamilla threatened her, "If you don't shut the fuck up, I'm going to hit you so hard that you're going to go flying through those glass shower doors."
Police officers arrived, noticed the blood on the floor, and ordered Escamilla to exit the bathroom or let Doe leave, but he refused. After repeated requests, the officers kicked down the door, rushed inside, and arrested Escamilla. Officers found Doe standing in the bathtub, crying hysterically, with blood on her face. Doe went to the hospital with black eyes, bruising on her face, neck, and thigh, and an abrasion on her knee.
Officers arrested Escamilla and observed blood on his hands, pants, and hip area, a scratch near his eye, and a hand injury. Escamilla spoke with one of the officers on the scene and admitted taking Doe's phone so she could not call police and hitting Doe in the hallway, but denied hitting Doe while in the garage.
At trial, Escamilla testified in his own defense. He admitted to pleading guilty to the offenses arising from the 2010 through 2014 domestic violence incidents. But he denied any abusive, violent, or threatening behavior towards Doe during those incidents and asserted Doe violently instigated the fights.
Escamilla acknowledged he went to Doe's home uninvited on the evening she was injured, despite knowing of the protective order. He claimed he went to see Doe that night to reconcile or, in the alternative, to end the relationship in a "respectable and loving manner." Escamilla admitted he took Doe's phone, but denied wrestling her to the ground or punching her. Testifying that Doe attacked him without provocation, he claimed he acted in self-defense, only hitting her nose when he raised his arm to block her blows. Escamilla denied striking Doe in her car, otherwise physically restraining or hitting her, or pushing her up the stairs.
II
DISCUSSION
A. Continuance
Escamilla contends the calendaring trial court erred in denying his request for a continuance to discharge his appointed counsel and seek retained counsel. The prosecutor and Escamilla's attorney both had announced they were ready for trial, and the prosecutor informed the court that her subpoenaed witnesses were available to testify. Defense counsel alerted the court he announced "ready" though Escamilla had unspecified "additional requests," explaining "I don't believe [they] are necessary or . . . can be fulfilled . . . ." The trial court concluded that because "witnesses have been subpoenaed" and "without an attorney [retained] who is here [and] can represent to the court whether [he or she] can be ready," granting "the defendant that request would disrupt the orderly administration of justice." But the court emphasized as to the denial, "again, it's without prejudice."
As the trial court placed the matter on the trailing calendar with "the parties on a three-hour on-call status," a courtroom immediately became available, and the court assigned the matter, but appointed counsel indicated, "I'll be filing paper" to disqualify the assigned judge. (Code Civ. Proc., § 170.6.) After a recess and the promised disqualification, the parties returned that day to the courtroom, the court ordered their return in no event later than "May 13th," which "would be day probably 9 of 10 or 8 of 10," but reminded the parties "everybody" remained on-call and that "as soon as we get a courtroom, you'll be notified." Escamilla did not hire an attorney or renew his request for retained counsel. A courtroom became available the next day, and the trial commenced.
The trial court did not err in denying Escamilla's request for a continuance to retain counsel. A criminal defendant is entitled to assistance of counsel at all critical stages of the proceedings. (U.S. Const., 6th Amend.; Cal. Const., art. I, § 15.) "Underlying this right is the premise that 'chosen representation is the preferred representation. Defendant's confidence in his lawyer is vital to his defense. His right to decide for himself who best can conduct the case must be respected wherever feasible.'" (People v. Courts (1985) 37 Cal.3d 784, 789-790 (Courts).)
The right is not absolute. (People v. Ortiz (1990) 51 Cal.3d 975, 982; People v. Rhines (1982) 131 Cal.App.3d 498, 506.) The right to retained counsel "'must be carefully weighed against other values of substantial importance, such as . . . seeking to ensure orderly and expeditious judicial administration, with a view toward an accommodation reasonable under the facts of the particular case.'" (Courts, supra, 37 Cal.3d at p. 790.) Consequently, the trial court has "wide latitude in balancing the right to counsel of choice against the needs of fairness, [citation] and against the demands of its calendar." (United States v. Gonzalez-Lopez (2006) 548 U.S. 140, 152.) "A continuance may be denied if the accused is 'unjustifiably dilatory' in obtaining counsel, or 'if he arbitrarily chooses to substitute counsel at the time of trial.'" (Courts, at pp. 790-791.)
We review the trial court's ruling for abuse of discretion. The burden rests on the appellant to show "'an abuse of judicial discretion in the denial of his request for continuance to secure new counsel.'" (People v. Jeffers (1987) 188 Cal.App.3d 840, 850.)
In Courts, supra, 37 Cal.3d 784, the Supreme Court concluded the trial court abused its discretion when it denied a continuance to permit the defendant to substitute an attorney he retained approximately one week before trial. (Id. at pp. 794-796.) The high court explained the defendant conscientiously had informed the trial court of his intention to retain private counsel weeks before trial was to begin (id. at pp. 791-792) and had been diligent in his effort to retain counsel, successfully completing the task before trial, rather than at the last minute. (Id. at p. 794.) The Supreme Court emphasized the trial court "was not confronted with the 'uncertainties and contingencies' of an accused who simply wanted a continuance to obtain private counsel." (Id. at p. 791, original italics.)
That is precisely the uncertain and ambiguous circumstance the trial court confronted here. Escamilla had not retained counsel when he requested a continuance on the day set for trial. Due to the speculative nature of the request, the proximity of the trial date, and the readiness of both sides to proceed to trial, the trial court properly balanced the "orderly processes of justice," including the demands of its calendar, with Escamilla's right to counsel of his choosing, and acted within its discretion in denying the request. (People v. Crovedi (1966) 65 Cal.2d 199, 208; see People v. Pigage (2003) 112 Cal.App.4th 1359, 1367 [no abuse of discretion or denial of Sixth Amendment rights when defendant offered no evidence he had attempted to retain counsel or had taken steps to secure funds to hire private counsel].)
Of particular note, the court denied the request without prejudice, and nothing indicated Escamilla ever attempted to secure counsel. With the witnesses and the parties on three-hour on-call status for the trial to begin at any moment, a continuance would have disrupted the court's calendar and inconvenienced witnesses and prospective jurors. (See, e.g., People v. Keshishian (2008) 162 Cal.App.4th 425, 429 [no abuse of discretion when the trial court denied appellant's last-minute attempt to discharge counsel on the day set for trial]; People v. Turner (1992) 7 Cal.App.4th 913, 919 ["[D]efendant sought to replace his attorney on the day of trial. This meant that the request could not be granted without causing a significant disruption, i.e., a continuance with the attendant further inconvenience to witnesses and other participants"].) The trial court acted within its discretion when it denied Escamilla's request. B. Sufficiency of the Evidence; New Trial Motion
Escamilla challenges the sufficiency of the evidence to support his burglary conviction, and on that basis argues the trial court should have granted his new trial motion. (See § 1181, subd. (6) [court may grant new trial "[w]hen the verdict or finding is contrary to [the] evidence"].) Escamilla contends there was no evidence "he had a preconceived plan to commit a battery upon [Doe]" and that, if she had only spoken to him, "then nothing more than reconciliation would have occurred." We reject Escamilla's implicit assertion the victim's decision not to converse with him caused him to pummel her into a bloody pulp and that the burglary finding was "'merely the product of conjecture and surmise'" for lack of evidence of premeditation or planning.
On appeal, we must view the record in the light most favorable to the judgment below. (People v. Elliot (2005) 37 Cal.4th 453, 466.) Because an appellate court must "give due deference to the trier of fact and not retry the case ourselves," an appellant challenging the sufficiency of the evidence "bears an enormous burden." (People v. Sanchez (2003) 113 Cal.App.4th 325, 330.) It is the jury's exclusive province to weigh the evidence, assess the credibility of the witnesses, and resolve conflicts in the testimony. (Ibid.) The appellate court must presume in support of the judgment the existence of facts reasonably drawn by inference from the evidence. (People v. Crittenden (1994) 9 Cal.4th 83, 139; see People v. Stanley (1995) 10 Cal.4th 764, 792 [same deferential standard of review applies to circumstantial evidence].) The fact that circumstances can be reconciled with a contrary finding does not warrant reversal of the judgment. (People v. Bean (1988) 46 Cal.3d 919, 932-933.)
Ample evidence supported Escamilla's burglary conviction. A burglary is committed by entering a residence with the intent to commit "any felony." (§§ 459, 460.) Contrary to Escamilla's claim, there is no requirement a person harbor a preconceived plan to commit burglary before arriving on the scene; all that is required is the intent to commit a felony when entering the residence (ibid.), and the jury was so instructed. (CALCRIM No. 1700.) Proof of specific intent is usually shown by circumstantial evidence, and committing a crime inside a residence supports the inference a defendant intended to commit that crime when entering the dwelling. (In re Matthew A. (2008) 165 Cal.App.4th 537, 541.)
Here, Escamilla would have us view the evidence in his favor, suggesting there was "nothing but speculation" to support the inference he intended "to do more than talk" to Doe, but he surprised her in her garage in the evening, snatched her cell phone when she went to call for help, and threatened her, "You're not calling the fucking cops again." (Italics added.) Then he dragged her out of her car, struck her repeatedly in the head when she tried to retrieve her phone, threw her to the ground, and covered her mouth and nose, suffocating her. The jury could infer from Escamilla's surreptitious entry into the garage and immediate confiscation of Doe's phone that he intended to harm her if he met any resistance and, though contingent, a victim's resistance is part of what makes burglary so dangerous, and therefore no defense to the charge. (People v. Fond (1999) 71 Cal.App.4th 127, 132.) In any event, after Escamilla assaulted Doe in her garage, he followed her into her house, and resumed the assault when Doe attempted to flee. Based on the garage assault and Escamilla's many past acts of violence against Doe, the jury reasonably could conclude he intended to continue assaulting Doe when he followed her into her residence. Substantial evidence therefore supports the burglary conviction. C. Instructions
1. Criminal Intent; Union of Act and Intent
Escamilla contends we must reverse the judgment because the trial court omitted language from the pattern jury instruction (CALCRIM No. 252) concerning the requisite criminal intent and union of act and intent. But the court in giving a modified version of CALCRIM No. 252 explicitly instructed the jury on necessity of "the union, or joint operation, of act and wrongful intent," and instructed the jury on the requisite intent in other instructions. Escamilla's claim fails because we must presume the jurors "are intelligent persons capable of understanding and correlating jury instructions" (People v. Martin (1983) 150 Cal.App.3d 148, 158), including the court's direction to read and apply the instructions as a whole (CALCRIM No. 200).
Specifically, instead of providing the jurors with the form instruction on the union of act and intent for general intent crimes (CALCRIM No. 250) and the similar instruction for specific intent crimes (CALCRIM No. 251), the trial court instead gave the jury a modified version of CALCRIM No. 252 (Union of Act and Intent: General and Specific Intent Together). As given, the modified instruction told the jury: (1) the kidnapping, domestic battery, false imprisonment, and violation of a protective order offenses were general intent crimes; (2) the attempted kidnapping, burglary, and criminal threats offenses were specific intent crimes; and (3) the requisite general or specific intent for each offense would be explained in the instructions for the respective crimes. The court's oral and written instruction based on CALCRIM No. 252 also told the jury: "The crimes and allegations charged in counts 1 through 6 require proof of the union, or joint operation, of act and wrongful intent." The record reflects the court gave the instructions to the jury to use during their deliberations.
In another instruction (CALCRIM No. 225), the court told the jury: "The People must prove not only that the defendant did the acts charged, but also that he acted with a particular intent and/or mental state. The instruction for each crime and allegation explains the intent and/or mental state required." Correspondingly, the court in the instructions on each general intent crime instructed the jury that the necessary mental state required the prosecution to establish that Escamilla "willfully" committed the prohibited acts defined in the instructions. (CALCRIM Nos. 1215, 840, 1240, 2701.) In turn, the instructions for the specific intent crimes accurately defined the requisite mental state for each of those crimes. (CALCRIM Nos. 1300, 1700, 460.)
"A court is required to instruct on the law applicable to the case, but no particular form is required; the instructions must be complete and a correct statement of the law." (People v. Fiu (2008) 165 Cal.App.4th 360, 370.) The court must instruct the jury on the requisite criminal intent to commit an offense (People v. Prettyman (1996) 14 Cal.4th 248, 285) and that every crime requires the union or joint operation of the prohibited act and intent (§ 20; People v. Morales (2001) 25 Cal.4th 34, 45; People v. Alvarez (1996) 14 Cal.4th 155, 219). We review claims of instructional error de novo (People v. Posey (2004) 32 Cal.4th 193, 218), but like the jury, we "must consider the jury instructions as a whole, and not judge a single jury instruction in artificial isolation out of the context of the charge and the entire trial record." (People v. Dieguez (2001) 89 Cal.App.4th 266, 276.)
Escamilla complains the trial court omitted the following language from the pattern version of CALCRIM No. 252 concerning general intent crimes: "For you to find the allegations true, that person must not only commit the prohibited act, [or fail to do the required act], but must do so with wrongful intent. A person acts with wrongful intent when he or she intentionally does a prohibited act [or fails to do a required act]; however, it is not required that he or she intend to break the law. The act required is explained in the instruction for that crime [or allegation]." The court also omitted similar language concerning specific intent crimes, as follows: "For you to find a person guilty of these crimes [or to find the allegations true], that person must not only intentionally commit the prohibited act [or intentionally fail to do the required act], but must do so with a specific (intent / [and/or] mental state). The act and the specific (intent/ [and/or] mental state) required are explained in the instruction for that crime [or allegation]." (CALCRIM No. 252.)
The Attorney General contends Escamilla forfeited his claim of error when his attorney below expressly offered no objection ("None by the defense") to the trial court's request for corrections or suggestions, if any, on its CALCRIM No. 252 modification. Nevertheless, we consider Escamilla's claim the asserted misinstruction affected his substantial rights. (§ 1259 [appellate court may review "any instruction given . . . even though no objection was made thereto in the lower court, if the substantial rights of the defendant were affected thereby"].) Instructional defects violate the defendant's substantial rights if the error reasonably may have affected the trial outcome. (People v. Konow (2004) 32 Cal.4th 995, 1024-1025.)
We find no error. Escamilla fails to acknowledge or address that the trial court in the instructions as a whole filled in the gaps he complains the court created by omitting portions of CALCRIM No. 252. Specifically, the court did instruct the jury on the requisite union of act and intent in its modified CALCRIM No. 252 instruction, and it reinforced the requirement in its CALCRIM No. 225 instruction, directing the jury that the prosecution had to prove "not only that the defendant did the acts charged, but also that he acted with a particular intent and/or mental state." And the court in the instructions pertinent to each offense instructed the jury on the requisite mental state for each crime. "Whether instructions are correct and adequate is determined by consideration of the entire charge to the jury." (People v. Holt (1997) 15 Cal.4th 619, 677.) In failing to address all the given instructions, Escamilla fails to meet his burden to establish error. Escamilla does not identify anything in the language omitted from the pattern CALCRIM No. 252 instruction not covered elsewhere in the instruction (union of act and intent) or in other instructions (the requisite general or specific intent). Because the instructions told the jury of the requisite criminal intent and union of act and intent, we find no error.
2. False Imprisonment
Escamilla asserts the trial court erred in instructing the jury on false imprisonment "[a]s charged in Count 5" and, in an interlineation on the instruction, "as a lesser included offense of Ct 1—kidnapping." Escamilla relies on the principle that a defendant cannot be convicted of two crimes when one is a necessarily included offense of the other. (People v. Ortega (1998) 19 Cal.4th 686, 692 (Ortega).)
But Escamilla fails to address the reason for the interlineation, namely, that during closing argument, the prosecutor explained that the kidnapping charged in count 1 and the false imprisonment charged in count 5 were based on separate acts. Specifically, the prosecutor argued: "I'm submitting to you these are two separate incidents. The first one is the kidnap when he takes her up the stairs. This false imprisonment [i.e., as charged separately in count 5, rather than as a lesser included offense of count 1] is when he successfully gets her into the bathroom, shuts the door, and refuses to let her out. That's this count, it is not the lesser included of the kidnap." Similarly, in addressing the kidnapping charge for moving Doe up the stairs, the prosecutor clarified, "This is not the bathroom [incident]. That's what I'm saying, this is not the bathroom crime. That's later. They're two distinct crimes."
Noting that the trial court stayed under section 654 imposition of punishment on his false imprisonment conviction in count 5, Escamilla argues he would not have been convicted on that count absent instructional error. He argues the court erred in "not instruct[ing the jury] that they could only find [him] guilty of one or the other counts." In other words, if the instructions and corresponding "verdict forms were submitted properly, the jury would have understood that they could only convict [him] of one count, not both."
Escamilla's claim misses the mark. The fact that a trial court stays a defendant's sentence on a particular count under section 654 has nothing to do with whether two or more counts were properly charged and tried together. Otherwise, every time a court entered a section 654 stay, it would have to dismiss the count, and that is not the law or practice under section 654, which expressly recognizes the possibility of multiple convictions under "different provisions of law," but provides that "in no case shall the act or omission be punished under more than one provision." (§ 654, italics added.) Indeed, section 954 expressly provides that the defendant may be charged "under separate counts" with "different statements of the same offense" or "two or more different offenses connected together in their commission," and "the defendant may be convicted of any number of the offenses charged." (See People v. Reed (2006) 38 Cal.4th 1224, 1226 ["In general, a person may be convicted of, although not punished for, more than one crime arising out of the same act or course of conduct"].) Thus, there was no instructional error as Escamilla claims.
In relying on the bar against conviction for both a greater and lesser included offense for the same act or course of conduct (see Ortega, supra, 19 Cal.4th at p. 692), Escamilla appears to confuse the bar with the proscription against multiple punishment (Reed, supra, 38 Cal.4th at pp. 1226-1227), but that is not an instructional claim as Escamilla raises here. Instead, it would be a challenge to the sufficiency of the evidence to support the prosecutor's contention there were two separate underlying acts, one charged as a kidnapping and the other as false imprisonment. But the appellant must raise his or her arguments under separate headings (Cal. Rules of Court, rule 8.204(a)(1)(B)) and may not task the reviewing court to formulate or piece together inchoate, undeveloped grounds for reversal. (E.g., People v. Stanley (1995) 10 Cal.4th 764, 793.) The standard of review is to the contrary. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.)
Moreover, on the merits, Escamilla's implicit evidentiary challenge—if that is what he is attempting to assert—fails. The evidence supported the prosecutor's argument and the jury's conclusion that there were two separate acts, one constituting kidnapping when Escamilla pushed Doe up the stairs to the second floor of her home, and then a second act of false imprisonment when, after the completed kidnapping, Escamilla turned around, ran down the stairs to the garage, and then ultimately returned upstairs after Doe secretly dialed 911. On his return, Escamilla locked Doe in the bathroom with him. The jury reasonably could conclude that in forcing Doe up the stairs, Escamilla satisfied the asportation element necessary for kidnapping and that his later act of confining Doe to the bathroom was a separate instance of false imprisonment.
Escamilla's bare citation to People v. Magana (2002) 230 Cal.App.3d 1117 is not to the contrary. There, the appellate court accepted the respondent's concession the defendant's false imprisonment conviction for tying the victim to a tree in the course of kidnapping her constituted a lesser included offense of the kidnapping conviction. (Id. at pp. 1121-1122.) We do not disagree with Magana; the evidence showed the defendant tied the defendant to the tree to rape her, only untying her when he could not accomplish the act in that position, and the evidence also showed that tying her to the tree was part of one long, uninterrupted act of kidnapping the victim to rape her, marching her a considerable distance to the tree and then a significant further distance after the rape, before she finally escaped. (Id. at pp. 1119-1120.)
Here, in contrast, the jury reasonably could find the kidnapping was complete once Escamilla moved Doe to the top of the stairs, and then left her alone there while he departed for the garage, and that he committed a separate criminal act when he returned and imprisoned her in the bathroom. The fact that the trial court later determined under section 654 that Escamilla engaged in a course of conduct with one indivisible intent in committing both acts, therefore justifying a stay of separate punishment (People v. Latimer (1993) 5 Cal.4th 1203, 1207-1208, 1216; Neal v. State of California (1960) 55 Cal.2d 11, 19), does not undermine the conclusion there were two separate acts warranting joint prosecution and separate convictions (§ 954). Escamilla's challenge therefore fails whether considered on instructional or evidentiary grounds.
3. Kidnapping
Escamilla contends the trial court erred by deleting a portion of the form kidnapping instruction (CALCRIM No. 1215) concerning the substantial distance necessary to constitute kidnapping. The court defined the requisite movement for kidnapping as "more than a slight or trivial distance," and told the jury that "in addition to considering the actual distance moved, you may also consider other factors," including: "whether the movement increased the risk of physical or psychological harm, increased the danger of a foreseeable escape attempt, or gave the attacker a greater opportunity to commit additional crimes, or decreased the likelihood of detection." But the court omitted from the pattern instruction the optional language in brackets stating the following additional factor, where relevant: "whether the distance the other person was moved was beyond that merely incidental to the commission of __________ <insert associated crime>." (CALCRIM No. 1215.) Our recent opinion in People v. Delacerda (2015) 236 Cal.App.4th 282 (Delacerda) resolves Escamilla's claim of error.
There, we explained that when an alleged perpetrator moves the victim merely in the course of committing "'associated crimes,'" the movement does not satisfy the asportation element of simple kidnapping because the distance traversed is deemed to be in relation to the associated crime, rather than a separate kidnapping. (Delacerda, supra, 236 Cal.App.4th at pp. 284, 289.) Consequently, when the facts may support the conclusion "the movement of the victim was merely incidental to the commission of [an associated crime or] crimes," the jury must be instructed to consider that factor in assessing whether the prosecution has proven a kidnapping occurred. (Ibid.)
Delacerda illustrates a key distinction: to constitute an associated crime requiring CALCRIM No. 1215's optional language, the defendant must move the victim "in the commission" of the associated offense. Thus, the assault with a firearm charged in Delacerda could not constitute an associated crime under the facts presented there, where the prosecutor alleged the kidnapping occurred when the defendant dragged the victim back to her bedroom. As we explained, the alleged firearm assault "occurred when defendant pointed the gun at [the victim], after she ran for the third time and he tackled her near the front door, but before he dragged her back into the bedroom. So this act [pointing the firearm] involved no movement at all, and was complete before the movement which comprised the kidnapping began. Consequently, this act was not an associated crime as a matter of fact." (Delacerda, supra, 236 Cal.App.4th at p. 291, italics added.)
In contrast, the defendant in Delacerda also was charged with domestic battery and among many acts of harmful or offensive touching shown in the record, one allegedly "occurred during the dragging movement itself." (Delacerda, supra, 236 Cal.App.4th at p. 291.) Consequently, in failing "to charge the jury" to consider associated crimes on the substantial distance element of kidnapping, the trial court "precluded the jurors from considering whether defendant's dragging of Emily and stuffing her into the closet was merely incidental to his offense of domestic violence battery." (Id. at p. 293.)
Here, our review of the evidence shows the acts potentially comprising the domestic violence with injury offense charged against Escamilla (§ 273.5, subds. (a), (f)(1)) occurred before his alleged offense of kidnapping in forcing Doe up the stairs. Specifically, in the garage, he punched Doe in the head, "starts to beat on me as I'm sitting in the car," dragged her from vehicle, and threw her to the ground where he covered her nose and mouth so she could not breathe. Doe managed to stand, opened the door from her garage to her home, and ran inside "for my front door, because I wanted to get out of the house." But Escamilla grabbed her by the hair, beat her again, this time in the face, and she fell to the ground, with "blood all over the place" pouring from her nose. After Escamilla "eventually let [her] up" ("he pulls me up"), Doe begged "to go to the hospital because I'm bleeding really bad" and "I think my nose is broken," but Escamilla responded, "[Y]ou're not going anywhere, bitch. Get up those stairs."
As the prosecutor explained in closing argument, forcing Doe up the stairs comprised the kidnapping, which Escamilla embarked on only "after he's already beaten her, [he then] takes her up there." (Italics added.) As in Delacerda in relation to the firearm assault charge, the domestic battery with injury alleged against Escamilla "was complete before the movement which comprised the kidnapping began." (Delacerda, supra, 236 Cal.App.4th at p. 291.) Consequently, there was no basis to instruct the jury to consider whether Escamilla's act of moving Doe "was . . . merely incidental to the commission of" (CALCRIM No. 1215) domestic battery causing injury because that offense was complete.
III
DISPOSITION
The judgment is affirmed.
ARONSON, J. WE CONCUR: MOORE, ACTING P. J. THOMPSON, J.