Opinion
G044034 Super. Ct. No. 08SF0011
09-07-2011
THE PEOPLE, Plaintiff and Respondent, v. CRAIG HUDDLESTON, Defendant and Appellant.
Daniel G. Koryn, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Steve Oetting and Andrew Mestman, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
Appeal from a judgment of the Superior Court of Orange County, Dan McNerney, Judge. Affirmed in part, reversed in part and remanded.
Daniel G. Koryn, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Steve Oetting and Andrew Mestman, Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
Defendant Craig Huddleston appeals from a multi-count conviction for robbery, kidnapping, and carjacking on several grounds. He asserts the court should have continued his trial to allow a psychologist to testify about his mental disorders or his mother should have been permitted to testify about them. He also challenges the sufficiency of the evidence on the counts of kidnapping during a carjacking and carjacking. He claims as error his conviction for both kidnapping during a carjacking and carjacking, as the latter is a lesser included offense of the former. Finally, he asserts that a sentence enhancement was improperly doubled and a necessary jury instruction on a lesser included offense was omitted.
We agree, as does the Attorney General, that the conviction for simple carjacking must be reversed, as a lesser included offense of kidnapping during a carjacking, and that the enhancement for use of a deadly weapon should not have been doubled. On all other issues, however, we affirm. We remand to correct the abstract of judgment.
FACTS
On the evening of December 28, 2007, 23-year-old Trevor Traut returned from work to his home in Laguna Niguel. He went to bed early, at about 9:00 p.m., because of back pain and fatigue. About an hour later, he awoke to find a man in his room. Thinking it might be one of his friends, Traut spoke to him. The man (defendant) immediately leaped onto him and started hitting Traut with his fists. As they struggled, defendant pulled out a stabbing weapon, later identified as a modified barbeque or kitchen fork, and cut Traut in several places, including a stab wound to the head that began to bleed profusely. Defendant told Traut that if Traut made noise, he would kill Traut and anyone else in the house. He then demanded money. Traut told defendant he had $20 in his wallet, but defendant said that was not enough; they would have to go to an ATM. Defendant then asked Traut whether he had a car. Traut said he did. Defendant allowed Traut to get up and dress, and to retrieve his wallet, cell phone, and keys.
One of the fork's two tines had been filed down, and the handle had been wrapped with tape.
Holding the weapon alternatively to Traut's back and neck and with his arm around Traut's neck, defendant forced him to leave the house and walk about a block to Traut's truck. Defendant took the keys and put Traut in the passenger seat; he drove off, keeping the weapon pointed at Traut. Following Traut's directions, defendant drove to a nearby Washington Mutual bank. With the engine running, he ordered Traut to get out and get some money from the ATM, threatening to run him over and go back to the house and kill anyone there if he tried to escape. Before Traut got out of the truck, defendant demanded his driver's license, which gave his residence address.
Traut had heard the television playing in his sister's bedroom as he and defendant were leaving the house and believed she was home.
Traut withdrew $400 from the Washington Mutual ATM, the maximum withdrawal. He returned to the truck, where defendant told him $400 was not enough because he had a child dying of leukemia and needed money for medical bills. Defendant then decided the truck needed gas and drove to a gas station. On the way, he said he would take Traut with him to Ortega Highway to burn a stolen car after getting gas.
After defendant and Traut reached the gas station and parked by a pump, defendant took Traut's wallet and handed him the $20, telling him to use it for gas. At this point, a police car pulled into the station. Defendant stuck the fork into Traut's side and told him not to move. Seeing his chance, Traut jumped out of the truck and ran after the police car. But the driver did not see him and drove away, so he ran into the gas station and told the cashier to call the police. As soon as Traut escaped, defendant drove off in the truck, going back in the direction from which they had come. Traut tried frantically to contact his sister - fearing defendant would make good on his threat to go back to the house and kill everyone in it.
If defendant had intended to go to Traut's house, he was not successful. He crashed the truck into a signal light pole near the gas station and fell out. When passers-by attempted to help him, he stumbled off into the bushes, claiming to be drunk. An Orange County deputy sheriff, called to the scene of the accident, caught up to him shortly afterward. Defendant had $400 in $20 bills in his pocket (the ATM money). Another deputy picked up Traut's wallet at the accident site. Some of the clothes defendant had been wearing were also retrieved between the crash scene and the spot where defendant was apprehended. After having his cuts treated at the hospital, Traut went to the police station and identified defendant as the man who had taken him from his bedroom.
Defendant was charged with residential burglary (count 1), first degree robbery (count 2), kidnapping to commit robbery (count 3), kidnapping during the commission of a carjacking (count 4), and carjacking (count 5). He was bound over for trial on these counts on March 10, 2008. Another count, first degree robbery at an ATM, was added on March 21.
At trial the charges were: count 1, residential burglary; count 2, first degree residential robbery; count 3, kidnapping to commit robbery; count 4, first degree robbery at an ATM; count 5, kidnapping during a carjacking; and count 6, carjacking.
Defendant claimed to be incompetent to stand trial. Two psychologists examined him, and each submitted a report and a supplemental report. Basing its ruling on these reports, the court found defendant competent to stand trial.
On the day of jury selection, but before testimony began, the court and counsel discussed calling one of the psychologists who had submitted a competence report, Dr. Lettieri, as a defense witness. Defense counsel suggested that Dr. Lettieri might testify about defendant's mental state when he did not take his medications, going to his ability to form specific intent, although counsel had not yet approached Dr. Lettieri about being a witness. Because the issue was still so nebulous, the matter was tabled until counsel had a more definite plan.
Although Dr. Lettieri diagnosed defendant as having a mental disorder, he believed defendant competent to stand trial.
The next day, after a full day of testimony, the court questioned defense counsel about his intention to call defendant's mother to the stand on the following day. Counsel made an offer of proof as to defendant's mother: She would testify defendant had exhausted his medications and as a result was acting strangely before he left the house on the night of the incident. He also acted violently when he did not take his medications. This testimony, counsel hoped, would negate - or at least cast doubt upon -defendant's ability to form the specific intent needed for most of the crimes with which he was charged. The court expressed considerable misgivings about the speculative nature of the proffered testimony.
The court did not then rule on allowing defendant's mother to testify, but revisited the issue the next morning before the jury was called in. At that point, defense counsel informed the court he had received a message from Dr. Lettieri, who said he could not testify until the following week. Counsel suggested that the court continue the case for an afternoon to give him a chance to speak to Dr. Lettieri in person and find out what he could testify to with respect to defendant's mental condition. The court denied the request, finding that the mere hope of Dr. Lettieri's being able to testify about defendant's mental state did not constitute good cause to continue the trial.
Defense counsel again proposed to call defendant's mother. Her testimony would be two-fold. First, she would testify about the drugs defendant was supposed to take for his condition, but was not taking because he had run out of them. She would also testify about her observations of defendant's behavior when he did and did not take his medications. Second, she would testify about several incidents of bizarre behavior defendant had exhibited since his release from prison two months previously - the latest incident on the night before he had attacked Traut. The point of this testimony was again to cast doubt on defendant's ability to form specific intent.
The court refused to allow defendant's mother to testify on the drug issue. The court concluded she did not have the qualifications or expertise to testify about the drugs' purposes or the psychological effects of not taking them, the only two issues even remotely relevant to defendant's ability to form specific intent. The court also refused to allow her to testify about defendant's bizarre behavior, on the ground this testimony would invite the jury to speculate blindly about whether defendant had some mental disorder and whether this mental disorder could influence his ability to form a specific intent to commit a crime. The defense having no other witnesses, the evidence portion of the trial concluded.
The jury found defendant guilty on all six counts. The court sentenced him to a total of 29 years to life. Because defendant had a prior serious felony conviction, the court doubled the sentences for each offense. The court also imposed the weapon enhancement sentence for use of a deadly weapon.
DISCUSSION
Defendant has identified five issues on appeal. First, the court should have granted a continuance to allow Dr. Lettieri to testify or, alternatively, the court should have permitted defendant's mother to testify. Second, the evidence was insufficient to support the two carjacking counts. He claims error in the court's failure to instruct the jury on a lesser included offence when it instructed on kidnapping during a carjacking. Finally, his carjacking conviction (count 6) must be reversed because it is a lesser included offence of kidnapping during a carjacking (count 5), and his doubled deadly-weapon sentence enhancement on count 5 was error.
The Attorney General agrees that the conviction for simple carjacking must be reversed as a lesser included offence and that the doubled sentence enhancement for count 5 was error. We therefore address the remaining three issues.
I. Trial Continuance and Defendant's Mother's Testimony
We review the denial of a request for trial continuance for abuse of discretion. (People v. Wilson (2005) 36 Cal.4th 309, 352.) "Continuances shall be granted only upon a showing of good cause." (Pen. Code, § 1050, subd. (e).) We also review a trial court's decision to exclude evidence for abuse of discretion. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125.)
A. Dr. Lettieri's Testimony
When the subject of using Dr. Lettieri as a defense witness first came up, after jury selection, defense counsel had not yet approached him about testifying. The next day, after the prosecution witnesses had testified, counsel and the court discussed defendant's mother's testimony, and did not mention Dr. Lettieri as a witness at all. The following morning (a Wednesday), before the jury was called in, the court and counsel again took up the subject of Dr. Lettieri's testimony. At that point, defense counsel still could not make an offer of proof. He and Dr. Lettieri had only traded voice mail messages. Dr. Lettieri's latest message was that he could not testify before Monday or Tuesday of the following week. The court then stated, "[A]t this time it doesn't sound like you are asking for a continuance of the trial." After musing for a bit, counsel stated, "I would love for this court . . . to grant me a brief continuance to see if [Dr. Lettieri] would come in next week and testify in that limited area [i.e., defendant's mental disorders], but I just - I don't think the court will. But I would certainly love to . . . have that opportunity."
Defense counsel later asked for a continuance "only for this afternoon." It is unclear what counsel meant by "only for this afternoon," as the morning session was just starting, the prosecution's case-in-chief was over, and jury instruction was next on the agenda if the defense had no witnesses. The court was willing to continue the trial if defense counsel could make an offer of proof that Dr. Lettieri's testimony would allow "the jury [to] infer that your client's failure to take these medications . . . could produce a mental state that would interfere [with] or negate his ability to form the specific intent to commit these crimes . . . ." Counsel could not make this offer of proof.
The court pointed out that defense counsel did not know what Dr. Lettieri was going to say about defendant's mental disorders and, even more importantly, whether the witness could offer expert testimony on the links between defendant's mental problems, the effects of not taking medication for these problems, and the ability or lack thereof to form the specific intent for the crimes of which defendant stood accused. At that point, counsel shelved his effort to obtain a continuance for Dr. Lettier's testimony and sought to put defendant's mother on the stand instead.
"The trial court has substantial discretion in ruling on midtrial motions to continue the case, and appellate challenges to a trial court's denial of such a motion are rarely successful." (People v. Seaton (2001) 26 Cal.4th 598, 660.) Assuming the exchange between the court and defense counsel amounted to a request for a continuance, we find no abuse of discretion in denying it. As the court observed, counsel did not even know what the witness was going to say about the effect of defendant's not taking his medications, and he was totally in the dark about the only reason for putting Dr. Lettieri on the stand at all: his ability to testify about the connection between defendant's not taking his medications and the formation of specific intent. Defense counsel's half-hearted request implicitly acknowledged the weakness of his argument for a continuance.
Defendant argues that "the only [way] this evidence [of his mental disorders] could have been presented was through Dr. Lettieri." Not so. Defendant could have procured his own psychological expert to make the relevant connections between his mental disorders, his medications, and his specific intent. (See, e.g., People v. Babbitt (1988) 45 Cal.3d 660, 680-681 [defense psychologist testified regarding post traumatic stress disorder during guilt phase].) Dr. Lettieri was handy, having already evaluated defendant for competence to stand trial, but he was by no means unique. (See People v. Wilson, supra, 36 Cal.4th at p. 352 [defense failed to exercise due diligence in obtaining witnesses; motion to continue properly denied].)
Defendant failed to show the requisite good cause for a trial continuance. The court did not abuse its discretion in refusing to grant one.
B. Defendant's Mother's Testimony
In lieu of Dr. Lettieri, defense counsel wanted to put defendant's mother on the stand, to testify about the drugs defendant was supposed to be taking (but had not taken for two months since being released from prison), several instances where defendant had acted bizarrely in the past two months, and a niece who had died of leukemia 15 years earlier. She was also prepared to testify that he became violent when he was off his medication.
Defendant, it will be recalled, told Traut that he needed money to pay the medical bills of his child who was dying of leukemia.
The court kept its eye on the ball with respect to this testimony. It correctly observed that defendant's mother was not competent to testify about the effects of the various drugs defendant was supposed to take, the mental conditions they were supposed to treat, or the mental consequences of not taking them. (See People v. Moore (2002) 96 Cal.App.4th 1105, 1116-1117 [expert testimony required to establish mental disorder].) As for the incidents of bizarre behavior, counsel was unable to articulate any theory that would make them relevant to what was at issue: defendant's ability to form the specific intent to commit crime. The bizarre conduct about which his mother was prepared to testify was not similar in any way to what defendant had done on the night of December 27, 2008. Therefore, as the judge observed, if defendant's mother testified about it, the jury would be left to speculate about what, if anything, was mentally wrong with defendant, and about whether whatever was wrong with him would negate his ability to form specific intent.
"[Evidence Code s]ection 352 permits the trial judge to strike a careful balance between the probative value of the evidence and the danger of prejudice, confusion, and undue time consumption. That section requires that the danger of these evils substantially outweigh the probative value of the evidence. This balance is particularly delicate and critical where what is at stake is a criminal defendant's liberty." (People v. Lavergne (1971) 4 Cal.3d 735, 744.)
In this case, the trial court struck the proper balance between the slight probative value of defendant's mother's testimony and the substantial confusion it would have generated in the jury, as its members tried to evaluate the testimony's significance. For example, defendant's mother wanted to testify that during a trip to the grocery store, she had become separated from defendant, whom she then found sitting in the middle of the store, crying. Granted, this is not normal behavior. But is it a manifestation of a mental disorder? If so, is this a mental disorder for which defendant should have been taking medication, but was not? If so, would not taking this medication diminish or negate defendant's ability to form a specific intent to commit a crime? Defendant offered no evidence on which to base an answer to these crucial questions; without this evidence, defendant's mother's testimony would have been far more confusing than probative. As the judge correctly perceived, it would only have invited the jury to engage in amateur psychiatry.
The court properly exercised its discretion in refusing to continue the trial for six or seven days on the off-chance that Dr. Lettieri would be able to say something helpful and in refusing to allow defendant's mother to testify. There was no good cause to continue the trial, and the mother's testimony was almost certain to confuse the jury.
II. The Convictions for Kidnapping for Carjacking and for Carjacking
Defendant asserts that the evidence does not support his convictions for kidnapping for carjacking and carjacking, counts five and six. When we review a criminal conviction for lack of substantial evidence, we "must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence - that is, evidence which is reasonable, credible, and of solid value - such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Johnson (1980) 26 Cal.3d 557, 578.)
The Penal Code defines "carjacking" as "the felonious taking of a motor vehicle in the possession of another, from his or her person or immediate presence, or from the person or immediate presence of a passenger of the motor vehicle, against his or her will and with the intent to either permanently or temporarily deprive the person in possession of the motor vehicle of his or her possession, accomplished by means of force or fear." (Pen. Code, § 215, subd. (a).) Kidnapping in commission of a carjacking occurs "during the commission of a carjacking and in order to facilitate the commission of the carjacking . . . ." (Pen. Code, § 209.5, subd. (a).) It requires moving the victim "a substantial distance from the vicinity of the carjacking" and an increase in "the risk of harm to the victim over and above that necessarily present in the crime of carjacking itself." (Pen. Code, § 209.5, subd. (b).)
As we understand it, defendant argues his intent to kidnap and rob Traut at an ATM, presumably formed when he found out Traut had only $20 in his wallet, somehow overrides or cancels out defendant's intent to take Traut's truck and to kidnap Traut to facilitate a carjacking. Defendant also appears to argue that the carjacking occurred when defendant drove out of the gas station in Traut's truck, without Traut in it. We disagree with both arguments.
The jury could reasonably have found a carjacking occurred when defendant and Traut first arrived at Traut's truck. All the elements were there. Defendant took Traut's motor vehicle as Traut was standing next to it (in his "immediate presence"), while threatening Traut with a barbeque fork, an instrument with which he had already stabbed Traut several times (by means of "force or fear"). The jury could reasonably infer from the evidence that defendant was using force or fear to commandeer the truck; Traut did not consent to its taking ("against [his] will"). Finally, the jury could reasonably infer from the evidence that defendant intended to deprive Traut of possession of his truck, at least temporarily, and that he had formed this intent before he arrived at the truck and used the barbeque fork to make Traut hand over the keys. (See CALCRIM No. 1650.)
The only real question with respect to the carjacking is whether Traut could truly be said to have been "in the possession" of the truck at the time, since defendant had forced him from his home and was holding him at forkpoint against his will. "Possession," however, extends to the right to control property. (See People v. Frazer (2003) 106 Cal.App.4th 1105, 1111-1112, disapproved on other grounds in People v. Scott (2009) 45 Cal.4th 743.) As the truck's owner, Traut had the right to control it, even if defendant was then controlling him.
Not content with taking the truck, defendant forced Traut to ride along with him. Traut was "moved a substantial distance from the vicinity of the carjacking" and taking him away increased the risk of harm to him. (See Pen. Code, § 209.5, subd. (b).)
The court properly instructed the jury that a kidnapping "facilitate[s]" a carjacking when it is done "to prevent the other person from sounding an alarm." (CALCRIM No. 1204.) The jury could reasonably infer from the evidence that defendant decided to take Traut along not just to direct defendant to an ATM but also to keep Traut from calling the police about the carjacking. (See People v. Jones (1997) 58 Cal.App.4th 693, 718 [evidence supported inference that defendant kidnapped victim with specific intent to commit multiple crimes].)
Assuming defendant had formed the intent in Traut's bedroom to kidnap Traut to facilitate a robbery at an ATM, he could form a separate intent to carjack Traut's truck and to kidnap Traut to facilitate the carjacking. If defendant and Traut had taken the bus or ridden bicycles to the bank, the carjacking statutes would not apply, although defendant would still face the kidnapping charge related to the robbery. His separate decision to appropriate Traut's truck placed defendant well within the boundaries of Penal Code section 215, and forcing Traut to go along in the truck put defendant on the wrong side of Penal Code section 209.5, subdivision (a).
The carjacking kidnapping occurred when defendant stuffed Traut into the truck's passenger seat and drove off with him. (See Pen. Code, § 209.5, subd. (b).) Taking Traut from his bedroom was a separate kidnapping. If defendant had left Traut by the side of the road and driven off alone, the kidnapping situation would be quite different.
III. Instructions on Lesser Included Offense
Defendant's argument on this issue is all but indecipherable. The heading states, "The failure to instruct the jury on the lesser included offense of carjacking requires reversal of defendant's kidnapping conviction in count 6." Count 6 is simple carjacking, not kidnapping. So maybe the heading is a mistake, and defendant really meant "count 5," which is kidnapping in commission of carjacking. We look at the body of the brief, however, and find this: "The court's failure to instruct the jury on the lesser included offense of kidnapping in count 6 violated defendant's state and federal constitutional rights . . . ." By no stretch of the imagination is kidnapping a lesser included offense of carjacking (count 6). So does defendant ascribe error to the failure to instruct as to simple carjacking or simple kidnapping? The subsequent discussion uses the two terms more or less interchangeably, so it is impossible to tell. Nor is the confusion cleared up in the reply brief. Although defendant concentrates on simple carjacking, and persists in referring to count 6 (the carjacking count) as the one with the defective jury instruction, he throws in several references to simple kidnapping as the omitted lesser included offense.
At one point in the reply brief, defendant refers to error in the instruction on count 4, which is robbery at an ATM.
Ultimately, however, it does not matter whether defendant means count 5 or count 6 or whether he maintains the court should have instructed the jury about simple carjacking or simple kidnapping or both. There was no reversible error.
"'"It is settled that in criminal cases, even in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence. [Citations.] The general principles of law governing the case are those principles closely and openly connected with the facts before the court, and which are necessary for the jury's understanding of the case." [Citation.] That obligation has been held to include giving instructions on lesser included offenses when the evidence raises a question as to whether all of the elements of the charged offense were present [citation], but not when there is no evidence that the offense was less than charged. [Citations.]'" (People v. Breverman (1998) 19 Cal.4th 142, 154.)
"The California rule requiring sua sponte instructions on all lesser included offenses, insofar as supported by the evidence, . . . protects both the defendant and the prosecution against a verdict contrary to the evidence, regardless of the parties' own perceptions of their strongest lines of attack or defense. The rule's purpose is not simply to guarantee some plausible third choice between conviction of the charged offense or acquittal, but to assure, in the interest of justice, the most accurate possible verdict encompassed by the charge and supported by the evidence." (People v. Breverman, supra, 19 Cal.4th at p. 161.) If no substantial evidence supports the lesser included offense, however, the court does not have a duty to instruct the jury on it. (People v. Cole (2004) 33 Cal.4th 1158, 1215-1216; see also People v. Holloway (2004) 33 Cal.4th 96, 140.) An error in failing to instruct on all lesser included offenses is reviewed for prejudice: it must appear reasonably probable, after examining the evidence, that the defendant would have obtained a more favorable outcome with the omitted instruction. (People v. Braverman, supra, 19 Cal.4th at p. 178.)
A. Lesser Included Offense of Carjacking
If defendant claims the court failed to instruct the jury on simple carjacking while it was instructing on kidnapping during a carjacking, he is mistaken. The court instructed the jury on simple carjacking, as to count 6. It referred to its simple carjacking instructions in the instructions for count 5 (kidnapping during a carjacking). "In assessing whether the jury instructions given were erroneous, the reviewing court '"'must consider the instructions as a whole . . . [and] assume that the jurors are intelligent persons and capable of understanding and correlating all jury instructions which are given.' [Citation.]"' [Citations.]" (People v. Guerra (2006) 37 Cal.4th 1067, 1148.)
The jury received instructions on both kidnapping during a carjacking and simple carjacking . If the jury had believed defendant guilty of carjacking but not of kidnapping during a carjacking, it would have acquitted him on count 5. The jury was given the opportunity to convict defendant of simple carjacking, and it did so. There was no prejudice to the defendant.
In arguing for the lesser included offense instruction, defendant focuses on the wrong circumstances. He states that because Traut jumped out of the truck at the gas station, he was not kidnapped, because he left the truck of "his own volition." Defendant ignores his earlier acts: (1) forcing Traut to get into the truck with him before driving off to find an ATM and (2) forcing Traut to get into the truck with him at the ATM and driving off to the gas station. By the time Traut jumped out of the truck at the gas station, he had already been kidnapped.
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B. Lesser Included Offense of Kidnapping
Defendant may be arguing that the court should have instructed the jury on the lesser included offense of simple kidnapping while it was instructing on kidnapping in commission of a carjacking. At one point, he states that the jury could have found he kidnapped Traut, but without the intent to carjack Traut's truck. Had the jury been properly instructed, it would have found kidnapping, but not kidnapping during a carjacking.
We have examined all the evidence relating to the kidnapping and carjacking charges and have tried to imagine how the jury could possibly have interpreted the evidence before it to support a charge of simple kidnapping but not kidnapping during a carjacking. We have failed. The jury convicted defendant of carjacking, so it obviously believed a carjacking had taken place, including defendant's intent to take the truck. The evidence unequivocally showed that defendant made Traut go with him after taking the truck. The evidence supports an inference that defendant took Traut along at least in part to prevent him from alerting the police. The additional intent to force Traut to use his ATM card to withdraw money for defendant does not cancel out the intent to facilitate the carjacking. Defendant moved Traut a substantial distance from where he took the truck, and taking Traut increased the danger he was in. (See Pen. Code, § 209.5, subd. (b).) As there was no basis for the jury to infer from the evidence before it that Traut's kidnapping did not take place during the commission of a carjacking, the trial court did not err in failing to instruct on simple kidnapping. (See People v. Holloway, supra, 33 Cal.4th at pp. 140-141.)
DISPOSITION
The conviction is reversed as to count 6, as it is a lesser included offence of count 5. The abstract of judgment is ordered corrected to impose a one-year enhancement term for count 5. The judgment is affirmed in all other respects.
BEDSWORTH, ACTING P. J.
WE CONCUR:
O'LEARY, J.
MOORE, J.