Opinion
NOT TO BE PUBLISHED
Super. Ct. No. TF033410A
CANTIL-SAKAUYE, J.
A jury convicted defendant Michael John Hawthorne of kidnapping for extortion (Pen. Code, § 209, subd. (a) -- count 1), assault (§ 245, subd. (a)(1)) as an included offense in the charge of torture (§ 206 -- count 2), false imprisonment (§ 236 -- count 3), assault with a stun gun or taser (§ 244.5, subd. (b) -- count 4), making criminal threats (§ 422 -- count 5), and possession of more than 28.5 grams of methamphetamine for sale (Health & Saf. Code, §§ 11378, 1023.073, subd. (b)(2) -- count 6). Defendant was sentenced to state prison for five years plus life with the possibility of parole.
Hereafter, undesignated statutory references are to the Penal Code.
On appeal, defendant contends the trial court committed prejudicial error when it failed to instruct the jury, sua sponte, (1) on simple kidnapping in violation of section 207, subdivision (a) as a lesser included offense in aggravated kidnapping in violation of section 209, subdivision (a), and (2) to view evidence of his pretrial admissions with caution. He also challenges the sufficiency of the evidence to support the kidnapping conviction. We shall affirm the judgment.
FACTS
PROSECUTION’S CASE
Christopher Luthin testified that after he was released from jail in March 2005, he rented a room from defendant in the latter’s home in Brentwood, but moved out a month and a half later at defendant’s request. In November, Luthin was living part time in his van parked behind the home of a friend in Tracy.
Just before dawn on November 20, 2005, Luthin was awakened by defendant entering his van, pointing what appeared to be a pistol at him, and telling him that he was “under arrest” for having burglarized defendant’s home in September. Luthin agreed to go to the police station with defendant and left the van with him.
When they reached the front gate, Luthin became fearful that defendant was not intending to take him to the police station and fled. As Luthin ran he was struck by a taser dart and fell. Luthin and defendant struggled, with defendant trying to put duct tape on Luthin’s face and to use zip ties to bind his arms. During the struggle, defendant repeatedly shocked Luthin with the taser.
Defendant finally subdued Luthin and bound his wrists and ankles with the zip ties. Whenever Luthin called for help, defendant would kick him saying, “We could do this the hard way or we could do this the easy way.” Defendant forced Luthin into defendant’s pickup and drove to defendant’s house, which took about 45 minutes, and parked in the garage. When Luthin asked why they weren’t going to the police station, defendant told him that the station didn’t open until 10:00 a.m. and that he had to get some paperwork. Noticing it was now 8:10 a.m., Luthin responded that defendant could get the paperwork later and he knew the police station didn’t close.
Luthin escaped from the pickup, but could not escape from the garage because the door was closed. Defendant knocked Luthin down, beat him “pretty severely,” and then tied him to the passenger wheel of the pickup. Over the next few hours, defendant placed a towel over Luthin’s head; put a bag next to Luthin’s ear and told him there were rattlesnakes in it, which Luthin claimed he could hear rattling; put a rubber ball in Luthin’s mouth to keep him from calling out; poured ether over the towel; and threatened to kill Luthin and bury him in a trench where no one would ever find him.
Defendant started smoking methamphetamine and told Luthin, “I’m going to have to kill you . . . unless you give me your Corvette.” When Luthin agreed to do so, defendant freed him and the two drank beer and smoked methamphetamine “to seal the deal.” Defendant drove Luthin back to Tracy and dropped him off near his trailer, telling him that he would call in a week about picking up the Corvette.
Luthin immediately called the police and Deputy Dexter Cho responded, arriving at Luthin’s van about 12:30 p.m. Cho described Luthin as having bruises and scratches on his face and arms; his right eye was “bruised pretty good”; he had ligature marks between his wrists and forearms; and tape residue on his face, around his mouth. Detectives searched the area where Luthin claimed he struggled with defendant and found evidence of a taser having been used, pieces of duct tape, and a bundle of zip ties.
The next day, while the detectives were again searching the area of the struggle, Luthin told Detective James Bojko that he had received a call from defendant and that defendant was coming to pick up the Corvette in a couple of hours. Defendant arrived driving a pickup with a flatbed trailer attached and was arrested. Inside defendant’s residence detectives found methamphetamine totaling 30.2 grams. A zip gun and additional tasers were found in the pickup.
DEFENSE CASE
Defendant testified that after Luthin moved in with him, the police came to the house looking for Luthin and he warned Luthin that he didn’t want the police coming by. A few weeks later, defendant read in a newspaper that a shotgun had been found in some shrubs in front of defendant’s home near where Luthin frequently parked his van. Defendant told Luthin he had to move out, which Luthin did.
In September 2005, defendant’s house was burglarized and several items stolen. Defendant’s investigation led him to believe that Luthin was the culprit. Although defendant reported the burglary to the police, he did not believe they were acting quickly enough. Defendant found out where Luthin was living, drove there and looked in Luthin’s van to see if any of defendant’s property was there. Defendant saw his Sony laptop computer, retrieved it, and returned home to read up on how to effect a citizen’s arrest.
In the early morning hours of November 20, 2005, defendant went to Luthin’s van to make a citizen’s arrest, taking with him duct tape, a taser, and zip ties to accomplish the task. Defendant entered the van and informed Luthin that he was making a citizen’s arrest for the September burglary and not to do anything stupid. When defendant and Luthin got to defendant’s pickup, Luthin took off running. Defendant shot at Luthin with the taser, but was unable to shock him because only one prong hit him. Defendant tackled Luthin and the two exchanged punches, with defendant managing to get zip ties on Luthin’s hands and walk him to defendant’s pickup.
Although defendant intended to take Luthin to the police station, he first drove home to get the computer and the paperwork concerning the burglary. Once in defendant’s garage, Luthin again attempted to escape, causing another fight and defendant’s tying Luthin to the wheels of his pickup.
Defendant told Luthin that he was going to go to jail and Luthin began crying and apologized for what he had done. Luthin begged defendant not to take him to jail and admitted that he still had some of defendant’s property in storage. Luthin offered to return the property and give defendant his Corvette if defendant would just let him go. Defendant figured accepting the Corvette “was better than nothing.” Defendant agreed to the deal, cut Luthin loose, and they smoked some of defendant’s methamphetamine.
After defendant drove Luthin back to Tracy, Luthin said that he would get a trailer and deliver the Corvette as well as the rest of defendant’s property to him. When Luthin failed to do so, defendant obtained a trailer and drove to where defendant was staying. At that time the police arrested him.
For ease of reading, we hereafter use a section’s numerical designation with any subdivisions or paragraphs in parentheses.
I.
Defendant contends the trial court prejudicially erred by not instructing the jury, sua sponte, on kidnapping pursuant to section 207(a) as a lesser included offense within kidnapping under section 209(a). Defendant bases his argument on two preliminary propositions: First, that section 209(a) must be read, as is the case with section 209(b) which governs kidnapping to commit robbery or a specified sex offense, to require that the intent to commit ransom or extortion be present at the commencement of the kidnapping. Second, that as charged herein, i.e., under the accusatory pleading test, kidnapping under section 207(a) is an included offense in kidnapping under section 209(a).
Section 207(a) provides: “Every person who forcibly, or by any other means of instilling fear, steals or takes, or holds, detains, or arrests any person in this state, and carries the person into another country, state, or county, or into another part of the same county, is guilty of kidnapping.”
Section 209(a) provides in relevant part: “Any person who seizes, confines, inveigles, entices, decoys, abducts, conceals, kidnaps or carries away another person by any means whatsoever with intent to hold or detain, or who holds or detains, that person for ransom, reward or to commit extortion or to exact from another person any money or valuable thing . . . is guilty of a felony . . . .”
Section 209(b)(1) provides: “Any person who kidnaps or carries away any individual to commit robbery, rape, spousal rape, oral copulation, sodomy, or any violation of Section 264.1, 288, or 289, shall be punished by imprisonment in the state prison for life with the possibility of parole.”
Count 1 charged defendant as follows: “On or about 11-20-05 the crime of KIDNAPPING FOR RANSOM, in violation of Section 209(a) of the Penal Code, a felony, was committed by [defendant], who . . . did willfully and unlawfully seize, . . . carry away CHRISTOPHER LUTHIN, with the intent to hold and detain, and who did hold and detain, said victim for ransom, reward, [or] extortion . . . .”
Defendant then argues that because “the evidence raised a question as to whether [he] kidnapped Luthin with the intent to commit extortion, or whether that intent did not arise until he began smoking methamphetamine in the garage several hours later[,] . . . the evidence cast a doubt on whether all the elements of the charged offense were present [citation], and the jury could have concluded that [he] was guilty of the lesser offense [citation].”
Even accepting defendant’s propositions, we are not persuaded by his argument.
The law regarding the court’s duty to instruct on included offenses is clear: “California decisions have held for decades that even absent a request, and even over the parties’ objections, the trial court must instruct on a lesser offense necessarily included in the charged offense if there is substantial evidence the defendant is guilty only of the lesser. [Citations.]” (People v. Birks (1998) 19 Cal.4th 108, 118.)
If the jury believed that defendant’s forcible carrying away of Luthin was pursuant to his making a citizen’s arrest and that his intent to extort did not arise until he had Luthin in the garage, this would not have afforded an evidentiary basis for a finding of kidnapping under section 207(a). This is so because subdivision (f)(2) of section 207 states that section 207(a) is not applicable to “any person acting under Section 834 or 837,” the latter section referring to the making of a citizen’s arrest. Consequently, because the forcible carrying away of Luthin could not constitute criminal asportation defendant was not entitled to an instruction on section 207(a) kidnapping.
II.
Defendant contends the trial court committed prejudicial error when it failed to instruct the jury, sua sponte, on the included offense of violation of section 207(a) because commission of that offense was a theory of defendant’s case. We disagree.
A “trial court is required to instruct on a defense . . . only if substantial evidence supports the defense. [Citations.]” (People v. Shelmire (2005) 130 Cal.App.4th 1044, 1054.) However, as shown in the previous section, there was insufficient evidence upon which to support a section 207(a) violation.
III.
Defendant contends the court erred in failing to instruct the jury, sua sponte, that it view with caution evidence of his pretrial statements “regarding the Corvette, and other statements that he would kill Luthin.” This failure was prejudicial, defendant claims, because it went to the “central issue . . . [of his] intent in abducting and seizing Luthin.” We conclude the error was utterly harmless.
“When the evidence warrants, the court must give the cautionary instruction sua sponte. [Citations.] . . . [¶] ‘[T]he purpose of the cautionary instruction is to assist the jury in determining if the statement was in fact made.’ [Citation.] This purpose would apply to any oral statement of the defendant, whether made before, during, or after the crime.” (People v. Carpenter (1997) 15 Cal.4th 312, 392-393.) Consequently, the court erred by not giving a cautionary instruction as to the evidence of defendant’s statements about his threats to kill Luthin.
The degree of prejudice for failure to give a required cautionary instruction is measured by “the normal standard of review for state law error: whether it is reasonably probable the jury would have reached a result more favorable to defendant had the instruction been given. [Citations.]” (People v. Carpenter, supra, 15 Cal.4th at p. 393.)
Here, in addition to convicting defendant of a section 209(a) kidnapping, the jury also convicted him of making criminal threats. Defendant’s threats to kill Luthin, as cited by him above, were the basis for the criminal threats conviction. Since the threats had to be proven beyond a reasonable doubt, which is the most stringent of standards, defendant could not conceivably have been prejudiced by the court’s failure to instruct the jury to view the threats with caution, which is a considerably lesser standard.
Nor is defendant aided by People v. Beagle (1972) 6 Cal.3d 441, which he cites. Beagle was convicted, inter alia, of attempted arson of Rudy’s Keg, a bar, by throwing onto the bar’s roof a Coca-Cola bottle with a wick and containing gasoline. (Id. at pp. 447-448.) Without giving a cautionary instruction, the trial court admitted Beagle’s pre-offense statement, made to a patron of the bar and overheard by a third party, that he wanted to hire someone to firebomb Rudy’s Keg. (Id. at pp. 447, 455.) Then, according to defendant, after “[t]he Beagle court stated that the purpose of the [cautionary] instruction is to assist the jury in determining if the statement was in fact made . . . [t]he court found there was no reasonable probability that the statement was actually made.”
From defendant’s version of Beagle’s finding, he essentially argues that since the court found no reasonable probability that Beagle’s statement had been made when two persons claimed to have overheard it, we should likewise find there was no reasonable probability that his statements regarding killing Luthin were made because only one person (Luthin) had overheard them.
The comparison suffers a fatal flaw. Contrary to defendant’s assertion, Beagle did not find that there was no reasonable probability that the statement was actually made. Indeed, as to Beagle’s pre-offense statement, as well as an additional statement, the court stated precisely the opposite: “We find no reasonable probability that the jury would find that the statements either were not made or were not reported accurately.” (People v. Beagle, supra, 6 Cal.3d at p. 456.) Beagle does not support defendant’s position.
IV.
Defendant contends the evidence is insufficient to support his section 209(a) finding. This is so, he argues, because there was “not one scintilla of evidence [] offered to show that [he] possessed the specific intent to commit extortion of Luthin at any time prior to the moment when, smoking methamphetamine . . . in his garage, he told Luthin he would not kill him if Luthin would give him the Corvette.” We reject the contention.
The argument is self-defeating. If defendant’s intent to extort arose only as defendant hypothesizes, i.e., when the two were smoking methamphetamine in the garage, such a circumstance constitutes substantial evidence of a violation of section 209(a), which permits conviction where a defendant “holds or detains” a person for the purpose of committing extortion.
DISPOSITION
The judgment is affirmed.
We concur: RAYE, Acting P. J. BUTZ, J.