Opinion
NOT TO BE PUBLISHED
Super. Ct. No. CM026002
ROBIE, J.
A jury found defendant Sal Esquivel guilty of forcible rape and sustained an aggravated kidnapping allegation. Defendant was sentenced to 25 years to life.
The court also sentenced defendant to a consecutive two-year term after revoking probation in an unrelated case.
On appeal, defendant contends there was insufficient evidence of asportation to support the aggravated kidnapping enhancement and the court failed to instruct on an aider and abettor liability as it related to the enhancement. We reject the contentions and affirm.
BACKGROUND
Jill S., a California State University at Chico student, went drinking with friends at the Crazy Horse Bar in Chico during late August or early September 1997. After her friends left, Jill went downstairs to Team Players, a pool hall. Jill met two older Hispanic men and played pool with them. After playing for about two hours, Team Players closed and Jill went across the street with the men to Jack’s to get breakfast.
The three got to Jack’s at around 2:00 a.m. and had breakfast. Jill testified she had a “buzz” from drinking, but was aware of everything. After breakfast, Jill told the men she would take a taxi home, but they offered to drive her home in their truck. Jill agreed and entered the truck, which was across the street.
The truck, an open bed pickup, had bucket seats in the front, and a long narrow seat in the back. One man sat in the driver’s seat, the other in the front passenger seat, and Jill sat between the two. Jill and the men spoke Spanish with each other. She was studying Spanish at school, and the men, who spoke Spanish fluently, were helping her learn, leading her to trust them.
The truck initially went in the direction of Jill’s house, but the driver missed a necessary turn. Jill pointed this out but the truck kept going in the wrong direction. The men told Jill “‘we owe you’” or “‘you owe us’” as the truck kept going. The man in the passenger seat asked Jill to show him her crotch, and Jill replied, “‘No, you must be kidding.’”
Jill did not remember too much of what happened next. She knew they were headed toward the town of Paradise, the road was dark, and no one was on the road. The man in the passenger seat pulled Jill to the backseat, pulled her skirt up and her underpants down, and tried to put his penis in her vagina, eventually penetrating her. She struggled with the man as he tried to penetrate her again, which allowed Jill to open the door and jump out of the moving truck.
Once out of the truck, Jill stayed flat in the grass and tall weeds. The truck turned around and slowly drove by, but the men did not get out. Jill stayed on the ground for 15 to 20 minutes before walking down the road. Jill testified she was picked up by a man and his dog no more than 10 minutes later. She told the man she had been raped and he convinced her to go to the hospital, where she was examined.
Michael Lambert was driving on Highway 32 in the early morning on September 1, 1997, to go dove hunting in Willows, when a woman flagged him down on the road at around 3:30 a.m. The shaken woman, whom Lambert identified as Jill, had cuts on her hands and forearms, as if from road rash. Jill asked Lambert for a ride, telling him she had been raped and jumped from a vehicle. Lambert, who did not have a dog with him, took Jill to the Chico Police Department.
An emergency room nurse conducted a sexual assault exam on Jill. The nurse noted Jill sustained numerous lacerations and abrasions over her body along with bruises on her upper chest and throat. The nurse collected oral and vaginal swabs along with hair and blood samples.
Jill was interviewed by a Butte County Sherriff’s deputy before being examined by the nurse. She was very distraught, telling the deputy she had met two mustached Hispanic men between the ages of 27 to 30. Jill said the passenger in the truck assaulted her, pulling down her panties, and fully penetrating her. When the man moved her to the backseat, Jill made her escape, leaving the truck as it was going 35 to 40 miles per hour. Jill said the men spoke fluent Spanish and the driver was named Wes. According to the deputy, Jill seemed sufficiently intoxicated to be arrested for public intoxication.
Jill was given a follow up interview by a Butte County Sheriff’s detective on September 4, 1997. Jill, who said in the first interview that the passenger had threatened to pound her face, told the detective neither man articulated a threat against her. She described the truck as a dark blue or purple Chevy king cab with bucket seats in the front, a full bench seat in the back, mag wheels, and two wheel drive. Jill said she pulled down her panties because she was afraid of what would happen if she did not.
In 2005, a DNA match identified defendant and the cold hit was confirmed by another test in 2006. When Jill was contacted by the Chico Police in 2006 after the DNA match, she did not have a clear recollection of what happened on the night of the rape. At trial, Jill could not remember the names of the men or identify her assailant.
After the DNA match, a Chico Police detective also contacted defendant. Defendant denied being able to speak Spanish. He did not remember the alleged incident and could not identify a photograph of Jill.
Defendant testified, stating his parents spoke Spanish, but he only understood a little of the language and could not speak it. He remembered playing pool with a young woman at Team Players on the evening of August 31, 1997, and then taking her to another bar where they drank with his friend until around 1:00 a.m. or 2:00 a.m. When the bar closed, defendant asked her if she knew any place to get breakfast and she suggested Jack’s, where the three went.
They got to Jack’s at around 2:00 a.m. and left by 3:00 a.m. According to defendant, the woman was rubbing and grabbing him and he did the same to her. Her attitude changed after she went to the bathroom, as she then acted strangely, like a totally different person.
They promised to give her a ride home in their truck, a brown Ford Bronco. The woman never told defendant and his friend where she lived, so defendant directed the driver where to turn. According to defendant, he and the woman groped each other as the truck was being driven, and she twice pulled her skirt up. Defendant tried to insert his penis into her vagina, and he stopped once she said no. Soon after the woman said no, the driver stopped the truck and the woman jumped out by a park and some houses. They turned around and returned but she was gone, so the pair assumed she entered one of the houses.
DISCUSSION
I
Evidence Of Asportation
Defendant claims there is insufficient evidence of asportation to support the true finding of his aggravated kidnapping enhancement under Penal Code section 667.61, subdivision (d)(2). He is mistaken.
In determining the sufficiency of the evidence, we ask whether “‘after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’” (People v. Hatch (2000) 22 Cal.4th 260, 272, italics omitted.) We resolve neither credibility issues nor evidentiary conflicts; we look for substantial evidence. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) “The uncorroborated testimony of a single witness is sufficient to sustain a conviction, unless the testimony is physically impossible or inherently improbable.” (People v. Scott (1978) 21 Cal.3d 284, 296.)
Penal Code section 667.61 incorporates the standard for aggravated kidnapping by requiring that “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 . . . .” (Pen. Code, § 667.61, subd. (d)(2); see People v. Rayford (1994) 9 Cal.4th 1, 11-12, 22.)
The asportation element for aggravated kidnapping only requires movement more than incidental to the crime, which substantially increased the danger beyond that inherent in the crime. This conclusion may be based on any of the following factors: defendant decreased the likelihood of being detected by moving the victim out of the way, the danger was increased to the victim based on the victim’s foreseeable attempt to escape, or the movement enhanced the defendant’s opportunity to commit the crime. (People v. Jones (1997) 58 Cal.App.4th 693, 713.)
Here, substantial evidence supports the jury’s asportation finding. Defendant admitted Jack’s was crowded when they entered at 2:00 a.m. and he caused Jill to be driven against her will to a dark isolated area away from the route to her home, thus decreasing his chances of being detected as he raped her. By sexually assaulting Jill in a moving truck, defendant made her escape substantially more difficult. Because of the asportation, Jill had no means of avoiding further sexual assaults other than what she did, the very dangerous maneuver of jumping out of a moving truck on a deserted highway.
Since the asportation clearly increased the danger to the victim beyond that inherent in the crime, the true finding on the aggravated kidnapping enhancement is supported by substantial evidence.
II
Instruction On Aider and Abettor Liability For Kidnapping
Defendant asserts the true finding on the aggravated kidnapping enhancement should be vacated because the court did not instruct the jury sua sponte on aider and abettor liability for the enhancement. His point is not well taken.
“A court must instruct sua sponte on general principles of law that are closely and openly connected with the facts presented at trial. [Citations.]” (People v. Ervin (2000) 22 Cal.4th 48, 90.) While a court must instruct the jury on aider and abettor liability when the prosecution relies on it as a theory of liability (see People v. Beeman (1984) 35 Cal.3d 547, 550-551; People v. Sarkis (1990) 222 Cal.App.3d 23, 26-27), defendant was prosecuted as a principal in the kidnapping enhancement rather than as an aider and abettor.
There is ample evidence to show that defendant was a principal in the kidnapping enhancement. He asked the victim to enter the truck and by his own admission directed the driver where to go. His presence blocked Jill from initially escaping the truck, and he forcibly dragged her to the back of the truck as it moved further away from Chico.
Defendant’s trial counsel objected to an instruction that defendant was an aider and abettor on the kidnapping enhancement. He also objected to an aiding and abetting instruction being given regarding the uncharged driver in the kidnapping. The trial court correctly declined to instruct on an aider and abettor theory with respect to either defendant or the driver.
Where the prosecution did not proceed on an aiding and abetting theory and there is substantial evidence to support defendant’s conviction as a perpetrator, a trial court has no duty to instruct on an aiding and abetting liability. Defendant’s contention to the contrary is devoid of merit.
DISPOSITION
The judgment is affirmed.
We concur: SIMS, Acting P.J., NICHOLSON, J.