Opinion
C084182
12-20-2018
THE PEOPLE, Plaintiff and Respondent, v. JUAQUAN JOHNSON, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 16FE015027)
Defendant Juaquan Johnson and an accomplice attacked a former prostitute who worked for defendant while she was near her apartment in the middle of the night. The men beat her and dragged her through the apartment complex, stopping only after neighbors intervened. A jury found defendant guilty of pimping, kidnapping, domestic violence, and false imprisonment, but not guilty of brandishing a firearm on a separate occasion. He was sentenced to an aggregate term of six years four months in state prison.
Defendant contends on appeal that (1) there is insufficient evidence of the asportation element of his kidnapping conviction, (2) the court failed to instruct on the incidental movement of the associated crime of domestic violence, (3) the court had a sua sponte duty to instruct on the lesser included offense of attempted kidnapping, and (4) that if his kidnapping conviction is upheld his conviction for false imprisonment must be vacated because it is a lesser included offense to kidnapping.
We conclude sufficient evidence supports defendant's kidnapping conviction, and that while the trial court erred by failing to instruct the jury to consider whether moving the victim was incidental to the domestic violence charge in determining the substantiality of the movement for the kidnapping offense, the error was harmless. We also find that the court's failure to instruct on the lesser included offense of attempted kidnapping was erroneous, but harmless. Because we affirm defendant's kidnapping conviction, we reverse defendant's false imprisonment conviction as false imprisonment is a lesser included offense of kidnapping.
FACTS AND PROCEEDINGS
Defendant and A.D. began dating in 2014. A few months later the romantic relationship ended, and she began working for defendant as a prostitute. She gave all the money she earned as a prostitute to defendant. Defendant also had another woman, Mercedes, working for him as a prostitute. He was often violent with the women.
A.D. eventually decided she no longer wanted to be a prostitute. In July 2015, A.D. called her mother from Santa Maria, where she and Mercedes were working as prostitutes for defendant, and asked her mother to come pick her up. After dropping Mercedes off at a date, A.D. met up with her mother and returned to Sacramento without telling defendant.
When defendant learned A.D. was gone, he immediately tried to contact her on the phone and through social media. Although she ignored him, defendant continually tried to contact her; he repeatedly showed up at her mother's apartment looking for her.
A.D.'s mother, Adrianne F., testified that from the time she picked A.D. up in Santa Maria, defendant would show up at night at her apartment looking for A.D. For that reason, A.D. had not been able to move home but instead had been staying with relatives.
Defendant would lurk in the bushes or parking lot waiting for Adrianne and would then ask her about A.D.'s whereabouts. Defendant became aggressive and threatened Adrianne. On one occasion, defendant approached Adrianne's car when she pulled into the apartment complex parking lot. He began yelling and cursing at Adrianne, and demanded to know where A.D. was. Defendant pulled a gun from his waistband. When Adrianne called the police, defendant passed the gun to someone in the vehicle he came in and took off running. A recording of Adrianne's 911 call was played for the jury.
In August 2015, A.D. moved back in with her mother. She did not leave the apartment during the day for fear of defendant finding her. She carried mace to protect herself.
Around 1:00 a.m. on August 20, 2015, A.D. left the apartment alone to empty the trash. After throwing the trash away, she heard a voice calling her name in an angry tone. She turned around and saw two men approaching. One of the men was defendant. She did not recognize the other man.
Defendant and his accomplice immediately began punching A.D. in the face, and on her head and body. Defendant called her a bitch and told her to "shut the fuck up." A.D. tried to spray defendant with mace, but ended up spraying both defendant and herself in the face.
While continuing to hit and kick A.D., defendant began dragging her by her hair and her hooded sweatshirt towards the front of the apartment complex. They passed four apartment buildings along the way. Defendant's accomplice pulled up his sweatshirt to reveal the handle of a gun.
Throughout the ordeal, A.D. screamed for help, pleaded for the men to stop, and tried to fight back. As they approached the front of the complex, residents who heard the melee came outside. After they told defendant and his accomplice to stop, the two men ran off. As a result of the beating, A.D.'s face, mouth, cheek, and nose were swollen, her lips were bleeding, and her back was bruised.
A.D. called the police to report the incident and returned to her apartment. A recording of her 911 call was played for the jury. During the call, A.D. identified defendant as her assailant, but did not disclose that she had been one of his prostitutes. When interviewed by other detectives a few weeks later, A.D. again failed to disclose that she had worked for defendant as a prostitute. She finally disclosed that fact during the preliminary hearing.
Danielle Haney, one of A.D.'s neighbors in the apartment complex, testified at trial that she had recently returned home from work on August 20 when she heard a commotion outside her window. She heard a woman telling two individuals to leave her alone; the woman began yelling for help. Haney called the police. A recording of her 911 call was played for the jury. Haney saw the two individuals pushing the woman and kneeing her in the stomach. According to Haney, the people were forcing the woman to go where she did not want to go. Haney heard another neighbor yell at the people to stop, and the two individuals ran off.
Sacramento County Sheriff's Detective Vitaly Prokopchuk investigated the August 20 incident. He met with A.D. at her apartment the next month and determined that defendant had dragged A.D. approximately 100 yards.
An October 2016 amended consolidated information charged defendant with four counts related to A.D. including pimping (Pen. Code, § 266h, subd. (a)--count one; statutory section references that follow are to the Penal Code unless otherwise stated), kidnapping (§ 207, subd. (a)--count two), domestic violence (§ 273.5, subd. (a)--count three), and false imprisonment (§ 236--count four), and one count of brandishing a firearm at A.D.'s mother (§ 417, subd. (a)(2)--count five). Defendant pleaded not guilty to the charges.
The jury found defendant guilty of all counts concerning A.D., but found him not guilty of brandishing a firearm at A.D.'s mother. The court sentenced defendant to the midterm of five years for the kidnapping offense, and one-third the midterm of four years (16 months) for the pimping conviction for a total aggregate sentence of six years four months in state prison. The court imposed the midterm of three years for the domestic violence offense and the midterm of two years for the false imprisonment conviction, but stayed those sentences under section 654.
DISCUSSION
I
Sufficient Evidence Supports the Simple Kidnapping Conviction
Defendant contends insufficient evidence supports his kidnapping conviction because the distance he moved A.D. was insubstantial, the movement occurred in public, and it was incidental to the associated crime of domestic violence.
Section 207, subdivision (a) defines simple kidnapping as follows: "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." (§ 207, subd. (a).) "To prove a defendant guilty of kidnapping, the prosecution must establish that (1) the defendant took, held, or detained another person by using force or by instilling reasonable fear; (2) using that force or fear, the defendant moved the other person, or made the other person move a substantial distance; and (3) the other person did not consent to the movement. [Citation.]" (People v. Perkins (2016) 5 Cal.App.5th 454, 464.)
The associated movement of the victim, or asportation, required for simple kidnapping has been characterized as " 'substantial in character,' " which has been defined as more than slight or trivial. (People v. Martinez (1999) 20 Cal.4th 225, 233-234 (Martinez).) To determine whether movement is substantial in character, the Supreme Court adopted a "totality of the circumstances" test. (Id. at p. 237.)
Under that test, a jury may consider not only the actual distance the victim was moved, but also other relevant factors including whether the movement increased the risk of harm above that which existed prior to the asportation, decreased the likelihood of detection, and increased both the danger inherent in a victim's foreseeable attempts to escape and the attacker's enhanced opportunity to commit additional crimes. (Martinez, supra, 20 Cal.4th at p. 237.) The fact that these dangers do not in fact materialize does not mean that the risk of harm was not increased, however. (People v. Rayford (1994) 9 Cal.4th 1, 14.) A jury may also consider the vulnerability of the victim in determining whether the asportation element of a kidnapping charge has been proved. (Martinez, at p. 238.) And, in cases involving an associated crime, the jury should also consider whether the distance a victim was moved was incidental to the commission of that crime in determining whether the distance the victim was moved was substantial for purposes of the kidnapping charge. (Id. at p. 237.)
Although Martinez adopted the totality of the circumstances test, the court emphasized that the standard for simple kidnapping does not require a finding of "an increase in harm, or any other contextual factors," so long as the evidence shows the victim was moved a substantial distance. (Martinez, supra, 20 Cal.4th at p. 237.) At the same time, the "contextual factors, whether singly or in combination, will not suffice to establish asportation if the movement is only a very short distance." (Ibid.)
In assessing the sufficiency of the evidence of asportation, we review the entire record in the light most favorable to the judgment to determine whether it discloses evidence that 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; People v. Hill (1998) 17 Cal.4th 800, 848.) We may not reweigh the evidence or substitute our judgment for that of the trier of fact. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) "[O]ur opinion that the evidence could reasonably be reconciled with a finding of innocence or a lesser degree of crime does not warrant a reversal of the judgment." (Hill, at p. 849.) Reversal for insufficient evidence is required only if it appears that upon no hypothesis whatever is there sufficient substantial evidence to support the conviction. (Johnson, at p. 578.)
Viewing the evidence in the light most favorable to the judgment, we conclude sufficient evidence shows defendant moved A.D. a substantial distance. Detective Prokopchuk testified that defendant dragged A.D. approximately 100 yards. That distance equals approximately 300 feet. (We take judicial notice of the fact that one yard equals three feet. (Evid. Code, §§ 452, subd. (h) & 459, subd. (a).) Moving a sexual assault victim 200 feet from her home where her mother was present to under a pier on a beach was found to be substantial where the distance removed the victim from the ready help of her mother. (See, e.g., People v. Stender (1975) 47 Cal.App.3d 413, 422-423, abrogated on other grounds in Martinez, supra, 20 Cal.4th at pp. 236-237.)
Similarly, here A.D. testified that defendant dragged her from the dumpsters near her apartment door towards the front gate of the apartment complex and past four apartment buildings. He did so in the middle of the night when onlookers were not likely to be present. A.D. testified that no one was outside when she took the trash out at 1:00 a.m. and that her mother, grandmother, and son were sleeping in the apartment.
By dragging her away from her apartment, where her family members slept, defendant moved A.D. away from those who would likely intervene on her behalf. That some neighbors eventually yelled at defendant to stop or that defendant did not succeed in getting A.D. out the front gate of the apartment complex does not mean the movement was only slight or insubstantial as argued by the defendant.
The jury could also reasonably conclude that A.D. was particularly vulnerable. (Martinez, supra, 20 Cal.4th at p. 238 [vulnerability of victim may be considered when determining substantiality of movement].) A.D. was all alone in the middle of the night when defendant suddenly attacked her with an accomplice.
The evidence also showed that A.D. struggled against the men and tried to escape, and that defendant's cohort flashed a gun during the incident. From this evidence, the jury could reasonably infer that the circumstances under which A.D. was moved increased the risk of physical harm to her, and also increased the danger inherent in any escape attempt. (Martinez, supra, 20 Cal.4th at p. 237.) The fact that A.D. did not actually get shot does not mean that the risk of harm was not increased. (People v. Rayford, supra, 9 Cal.4th at p. 14 [failure of dangers to materialize does not mean risk of harm was not increased].)
While defendant contends that cases such as People v. Shadden (2001) 93 Cal.App.4th 164, 168-169, where a victim was moved nine feet from an open area to a closed room, and People v. Arias (2001) 193 Cal.App.4th 1428, 1435, where the victim was forcibly moved at gunpoint from outside to inside an apartment, focused only on whether the movement increased the danger to the victims rather than the physical attack or the firearm, neither case prohibits consideration of such circumstances when evaluating movement. In fact, in Shadden the court stated, "[the defendant] slugged and dragged [the victim] nine feet from an open area to a closed room. From these facts the jury could reasonably infer that the distance was substantial for [the victim] and it changed her environment." (Shadden, at p. 169.)
Defendant's argument that the movement was insubstantial simply because defendant failed to get A.D. outside the apartment complex or into a nearby building is not persuasive. As explained above, he dragged her past four apartment buildings, the length of a football field, in the middle of the night while she was alone and no one was watching. That her screams eventually alerted neighbors to the struggle does not lessen the substantiality of the movement.
Defendant's argument that the prosecution failed to prove the asportation exceeded the distance that was incidental to the domestic violence offense is likewise without merit. He contends that because defendant beat A.D. while he dragged her, that the movement was incidental to the crime of domestic violence. We disagree. The evidence showed defendant was A.D.'s pimp, that she gave him all of the money she earned as a prostitute, and that she left him unannounced and disappeared because she no longer wanted to work as his prostitute. He repeatedly tried to find her after she disappeared, threatening her mother to discover her whereabouts.
Based on this evidence, the jury could reasonably conclude that defendant did not merely intend to batter her, but instead that he intended to drag her back to their prior business relationship where she made him money. As the prosecutor argued, "[t]hese are the actions of a pimp trying to find his prostitute. She is a money maker for him. That's all she is at this point." Had defendant solely intended to punch and kick A.D., he could have done so without moving her the length of a football field. In other words, that significant movement was not incidental to the domestic violence offense.
II
Failure to Instruct on Incidental Movement
Defendant contends the court prejudicially erred in failing to instruct the jury sua sponte to consider whether moving A.D. was incidental to the associated crime of domestic violence. The People concede the error, but contend it was harmless beyond a reasonable doubt. We agree that the court should have included the bracketed language regarding incidental movement when instructing the jury on simple kidnapping, but find that the omission was harmless beyond a reasonable doubt.
A trial court has a sua sponte duty to instruct the jury on the essential elements of an offense (People v. Flood (1998) 18 Cal.4th 470, 480 (Flood)), and on the general principles of law governing the case, which include those principles of law closely and openly connected with the facts of the case and necessary to the jury's understanding of the case. (People v. Michaels (2002) 28 Cal.4th 486, 529-530.) "A 'criminal defendant is entitled to adequate instructions on the defense theory of the case' if supported by the law and evidence." (People v. Bell (2009) 179 Cal.App.4th 428, 434 (Bell).)
On appeal, we review the wording of a jury instruction de novo, and determine whether the instructions are complete and correctly state the law. (Bell, supra, 179 Cal.App.4th at p. 435.) We examine the entire charge of the court to determine whether the instructions are adequate (People v. Pena (1984) 151 Cal.App.3d 462, 475), and whether it is reasonably likely that the instructions as a whole caused the jury to misapply the law (People v. Cain (1995) 10 Cal.4th 1, 36).
In this case, the court instructed the jury with CALCRIM No. 1215, the pattern jury instruction for simple kidnapping, but did not include a bracketed portion of the instruction on incidental movement. The court instructed the jury as follows: "The defendant is charged in Count 2 with kidnapping in violation of Penal Code section 207(a). [¶] To prove that the defendant is guilty of this crime, the People must prove that: [¶] 1. The defendant took, held, or detained another person by using force or by instilling reasonable fear; [¶] 2. Using that force or fear, the defendant moved the other person a substantial distance; [¶] AND [¶] 3. The other person did not consent to the movement. [¶] Substantial distance means more than a slight or trivial distance. In deciding whether the distance was substantial, you must consider all the circumstances relating to the movement. Thus, in addition to considering the actual distance moved, you may also consider other factors such as whether the movement increased the risk of 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."
The bracketed passage would have prohibited the jury from convicting defendant of simple kidnapping if his movement of A.D. was merely incidental to an associated crime.
The bracketed language regarding incidental movement is found in the instruction's definition of substantial distance. It reads: "Substantial distance means more than a slight or trivial distance. In deciding whether the distance was substantial, you must consider all the circumstances relating to the movement. [Thus, in addition to considering the actual distance moved, you may also consider other factors such as [whether the distance the other person was moved was beyond that merely incidental to the commission of ___ <insert associated crime>] . . . ." (CALCRIM No. 1215, rev. Oct. 2010.)
The Supreme Court in Martinez held that "in a case involving an associated crime, the jury should be instructed to consider whether the distance a victim was moved was incidental to the commission of that crime in determining the movement's substantiality." (Martinez, supra, 20 Cal.4th at p. 237.) "[A]n 'associated crime,' as that phrase was used by the Martinez court, is any criminal act the defendant intends to commit where, in the course of its commission, the defendant also moves a victim by force or fear against his or her will." (Bell, supra, 179 Cal.App.4th at pp. 438-439.)
We conclude that the evidence here was sufficient to show the relationship between the kidnapping offense and the domestic violence offense to satisfy the "associated crime" test. The domestic violence charge was based on defendant beating and kicking A.D. The battery began with defendant punching A.D. in the face and head and continued until defendant and his companion released A.D. and ran away. From this evidence, the jury could have concluded that during the course of the domestic violence battery, defendant moved A.D. by force and fear against her will by dragging her 100 yards through the apartment complex.
Given the evidence, the court had a sua sponte duty to instruct the jury that in determining whether defendant's movement of A.D. was substantial, they could consider whether the movement was merely incidental to the crime of domestic violence (as one factor among others). The absence of the incidental movement language from the simple kidnapping instruction rendered the instruction incomplete. (Bell, supra, 179 Cal.App.4th at p. 439.) Omitting the bracketed language concerning incidental movement violated defendant's right to a correct jury instruction on all the elements of the offense of simple kidnapping. (Flood, supra, 18 Cal.4th at p. 480.)
"A trial court's failure to instruct on all elements of an offense is a constitutional error 'subject to harmless error analysis under both the California and United States Constitutions.' " (Bell, supra, 179 Cal.App.4th at p. 439.) The federal constitutional standard is whether it appears beyond a reasonable doubt that the error did not contribute to the jury's verdict. (Flood, supra, 18 Cal.4th at p. 504; Chapman v. State of California (1967) 386 U.S. 18, 24 .) "In determining whether instructional error was harmless, relevant inquiries are whether 'the factual question posed by the omitted instruction necessarily was resolved adversely to the defendant under other, properly given instructions.' " (Bell, at p. 439.) "A reviewing court considers 'the specific language challenged, the instructions as a whole[,] and the jury's findings' [citation], and counsel's closing arguments to determine whether the instructional error 'would have misled a reasonable jury . . . .' " (Ibid.)
On this record, we find that the error was harmless beyond a reasonable doubt. Incidental movement was but one factor among many to consider in determining the substantiality of the movement under the totality of the circumstances test enunciated in Martinez. (Martinez, supra, 20 Cal.4th at p. 237; Bell, supra, 179 Cal.App.4th at p. 440.) "Put more directly, one of the additional factors to be considered in determining the movement's substantiality is whether the movement of the victim was for a distance beyond that which was incidental to the commission of an associated crime." (Bell, at p. 440.) As the Bell court explained, "[t]he factor is not a separate threshold determinant of guilt or innocence, separated from other considerations bearing on the substantiality of the movement . . . ." (Ibid.)
In this case, no reasonable jury would have found that dragging A.D. through the apartment complex in the middle of the night was merely incidental to the domestic violence crime had they been so instructed given the nature of defendant's pimp-prostitute relationship with A.D., the actual distance she was moved, the increased risk of harm she was subjected to, the decreased likelihood of detection, and the increased danger inherent in an escape attempt.
To begin with, overwhelming evidence established that the distance A.D. was dragged was substantial in and of itself. As explained above, dragging an unwilling person 300 feet, or the length of a football field, can hardly be characterized as a slight or trivial distance. (Martinez, supra, 20 Cal.4th at p. 237 [jury may convict of simple kidnapping without finding an increase in harm or any other contextual factors if the distance moved was substantial in character].)
Defendant also moved A.D. away from the vicinity of family members who could help her thus exposing her to greater danger and making it less likely she would be detected. (Stender, supra, 47 Cal.App.3d at pp. 422-423 ["200 feet becomes more a substantial distance when it is considered it accomplished the purpose of removing the victim from the ready help of her mother"].) Defendant dragged her when she was highly vulnerable--A.D. was outside alone in the middle of the night, which made it much less likely someone would intervene. (Martinez, supra, 20 Cal.4th at p. 238 [victim's vulnerability is properly considered in determining whether movement was substantial in character].) He induced an accomplice to help him so as to outnumber A.D. And that accomplice had a gun, which increased the likelihood A.D. might be injured while attempting to escape. Defendant, moreover, did not merely beat and drag a former girlfriend. Rather, he was A.D.'s pimp, and lived off the money she gave him.
The cases on which defendant relies for the propositions that the movement was incidental and the instructional error not harmless are factually distinguishable. In People v. Washington (2005) 127 Cal.App.4th 290, 300, an aggravated rather than simple kidnapping case (id. at p. 294), the court found that it was necessary to move bank employees to the vault to obtain money during a bank robbery. Because there was no excess or gratuitous movement of the victims over and above that necessary to obtain the money in the vault, the movement was incidental to the robbery. (Id. at p. 299.)
Here, by contrast, it was not necessary for defendant to move A.D. in order to batter her. To convict him of domestic violence, the jury had to find that defendant willfully inflicted a physical injury on someone with whom he had, or previously had, an engagement or dating relationship, and that the injury inflicted resulted in a traumatic condition. (§ 273.5, subd. (a); CALCRIM No. 840.) The evidence showed that defendant and his companion punched A.D. in the face, head, and body. As a result, A.D. sustained facial injuries, a bruised back, and "busted" lips. This evidence was sufficient to secure a domestic violence conviction. Moving defendant 100 yards was not necessary to the beating; the movement, in effect, was "excessive."
And while both Bell, supra, 179 Cal.App.4th at pages 439-440, and People v. Delacerda (2015) 236 Cal.App.4th 282, 293-294, found a similar instructional error prejudicial, the circumstances of those cases differ from the present matter. In Bell, the defendant attempted to evade police trying to serve an outstanding parole violation warrant while his ex-wife happened to be in his car. (Bell, at pp. 431-432.) She was about to get out of the car at the moment police arrived. (Id. at p. 433.) Defendant, upon seeing the police, suddenly sped away; he stopped 70 yards down the street to let his ex-wife out of the car, and then sped away again from pursuing police. (Ibid.)
Nothing like what happened in Bell--that the victim happened to be getting out of the car at the moment police arrived--occurred in this case. A.D. was not simply at the wrong place, at the wrong time like the victim in Bell where the jury could easily find that the movement was incidental to the evasion. Defendant sought her out, beat her, and then dragged her towards the apartment complex entrance in a likely attempt to force her back into prostitution.
In Delacerda, a former jealous boyfriend attacked his ex-girlfriend in her apartment, demanding to read her e-mails and accusing her of cheating on him. (Delacerda, supra, 236 Cal.App.4th at pp. 285-286.) When she tried to escape, the boyfriend assaulted her with a gun and dragged her approximately 20 to 40 feet and shoved her into a bedroom closet. (Id. at pp. 286-287.) The relatively short distance the defendant in Delacerda moved the victim made it much more likely that a jury, if properly instructed regarding incidental movement, would find that the kidnapping was incidental to the domestic violence offense in that case. Since they were already alone inside her apartment, moving the victim to a closet did not necessarily expose her to greater danger or otherwise help conceal her. The facts here, as we have explained, were much different. Not only was the distance itself significant, but each of the other contextual factors that the jury was properly instructed on overwhelmingly established that the movement was substantial and not merely incidental to the domestic violence offense.
Finally, we note that while defense counsel argued in closing that A.D. exaggerated the distance she was moved, implying she was only moved a short distance, he did not argue the theory that the distance was insubstantial because it was merely incidental to the domestic violence offense. (People v. D'Arcy (2010) 48 Cal.4th 257, 295-297 [failure to instruct that mayhem-murder special circumstance was not established if mayhem was merely incidental to the commission of a murder was harmless where defense made no effort to defend against mayhem special-circumstance allegation on the theory that maiming the victim was merely incidental to achieving the murder].) For all these reasons we conclude that the instructional error was harmless beyond a reasonable doubt.
III
Sua Sponte Duty to Instruct on Attempted Kidnapping as Lesser Included Offense of
Simple Kidnapping
Defendant contends the trial court had a sua sponte duty to instruct the jury on attempted kidnapping, which is a lesser included offense of simple kidnapping. We agree, but conclude the error was harmless.
In any criminal case, the trial court must instruct on the general principles of law relevant to the issues fairly raised by the evidence. (People v. Breverman (1998) 19 Cal.4th 142, 154 (Breverman).) That obligation includes instructing on lesser included offenses if evidence is presented that, " 'if accepted by the trier of fact, would absolve the defendant of guilt of the greater offense but not of the lesser.' " (People v. Rogers (2006) 39 Cal.4th 826, 866.) "The obligation to instruct on lesser included offenses exists even when as a matter of trial tactics a defendant not only fails to request the instruction but expressly objects to its being given." (Breverman, at p. 154.) The court's sua sponte duty thus "prevents the 'strategy, ignorance, or mistakes' of either party from presenting the jury with an 'unwarranted all-or-nothing choice,' encourages 'a verdict . . . no harsher or more lenient than the evidence merits' [citation], and thus protects the jury's 'truth-ascertainment function' [citation]." (Id. at p. 155.)
Attempted kidnapping is a lesser included offense of simple kidnapping. (Martinez, supra, 20 Cal.4th at p. 241.) For the offense of attempted kidnapping, the prosecution need not prove that the victim was moved a substantial distance, but must show whether the defendant attempted to move the victim a substantial distance. (People v. Cole (1985) 165 Cal.App.3d 41, 50.)
Defendant argues that the jury could have inferred he intended to move A.D., but that the neighbors intervened before he was able to take her to a desired location. An instruction on attempted kidnapping, in his view, was therefore warranted.
While it is true, as the People argue, that taking a victim to a desired location is not an element of kidnapping (§ 207, subd. (a); CALCRIM No. 1215), we understand defendant's argument to be that the neighbors intervened before defendant could move A.D. a substantial distance, which is a required element (§ 207, subd. (a); CALCRIM No. 1215). Because the uncontroverted evidence showed defendant moved A.D. some distance, and the jury had to decide whether that movement was substantial, the trial court should have instructed the jury sua sponte with the lesser included offense of attempted kidnapping in the event the jury determined it was not.
The erroneous failure to instruct on a lesser included offense does not mandate a per se reversal, however. (Breverman, supra, 19 Cal.4th at p. 165.) Instead, the error is "subject to harmless error review under the standard of People v. Watson (1956) 46 Cal.2d 818, . . . 836-837." (People v. Rogers, supra, 39 Cal.4th at pp. 867-868.) "Reversal is required only if it is reasonably probable the jury would have returned a different verdict absent the error or errors complained of." (Id. at p. 868; Breverman, at p. 165 ["misdirection of the jury is not subject to reversal unless an examination of the entire record establishes a reasonable probability that the error affected the outcome"].)
Here, it is not reasonably probable that the jury would have convicted defendant of attempted kidnapping rather than kidnapping. The evidence showed defendant moved A.D., a vulnerable victim who was alone and outside in the middle of the night, a distance of 100 yards, which was not trivial and removed her from the vicinity of her relatives who might have helped her. Accordingly, had the trial court instructed the jury on attempted kidnapping, there is no reasonable probability that defendant would have obtained a more favorable outcome.
IV
False Imprisonment Conviction
In the event his kidnapping conviction is upheld, defendant contends his conviction for false imprisonment must be stricken. We do not understand defendant to otherwise challenge the sufficiency of the evidence supporting the false imprisonment conviction, however.
False imprisonment is a lesser included offense of kidnapping. (People v. Magana (1991) 230 Cal.App.3d 1117, 1120-1121; People v. Ordonez (1991) 226 Cal.App.3d 1207, 1233.) If both the false imprisonment count and the kidnapping count relate to the same act, a defendant cannot be convicted of both offenses. "The law prohibits simultaneous convictions for both a greater offense and a lesser offense necessarily included within it, when based on the same conduct." (People v. Milward (2011) 52 Cal.4th 580, 589; see also People v. Delacerda, supra, 236 Cal.App.4th at p. 291 ["convictions for both a greater and a lesser included offense based upon the same conduct are always prohibited"]; People v. Ratcliffe (1981) 124 Cal.App.3d 808, 820 ["If both the false imprisonment count and kidnapping count relate to the same act, double conviction as well as double punishment is prohibited"].)
Having previously concluded that sufficient evidence supports defendant's kidnapping conviction and that the conviction need not be reversed given the trial court's instructional error on that count, defendant's false imprisonment conviction cannot stand. The conviction must be reversed since defendant cannot be convicted of both a greater and lesser included crime based on the same act.
DISPOSITION
Defendant's false imprisonment conviction and that part of the judgment based thereon is reversed. The kidnapping, pimping, and domestic violence convictions are affirmed.
HULL, Acting P. J. We concur: ROBIE, J. MAURO, J.