Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Bernardino No. FSB059114 Cara D. Hutson, Judge.
IRION, J.
A jury convicted Raphael Maurice Johnson of attempted willful deliberate premeditated murder (Pen. Code, §§ 664, 187, subd. (a)); kidnapping (§ 207, subd. (a)); burglary (§ 459); assault with a firearm (§ 245, subd. (a)(2)); dissuading a witness by force or threat (§ 136.1, subd. (c)(1)); making a criminal threat (§ 422); child abuse (§ 273a, subd. (a)); corporal injury to a spouse with a prior conviction of the same offense (§ 273.5, subds. (a), (e)(1)); and the unlawful driving or taking of a vehicle (Veh. Code, § 10851, subd. (a)). The jury also made true findings on various sentencing enhancements. The trial court sentenced Johnson to an indeterminate term of 40 years to life, plus a determinate term of six years eight months.
Unless otherwise indicated all further statutory references are to the Penal Code.
Johnson contends that (1) the verdict form for the attempted murder count was flawed and deprived him of his right to present a defense; (2) the trial court prejudicially erred because the jury instruction for the child abuse count improperly failed to require a finding that Johnson acted with criminal negligence; (3) the trial court prejudicially erred in failing to instruct on the lesser included offense of misdemeanor child abuse; (4) Johnson's federal constitutional rights were infringed when the jury was instructed with a former version of CALCRIM No. 362 that allowed the jury to infer consciousness of guilt from a defendant's false and misleading trial testimony; and (5) the sentence imposed for the kidnapping conviction should have been stayed pursuant to section 654. We find Johnson's arguments for reversal to be without merit, and accordingly we affirm the judgment.
I
FACTUAL AND PROCEDURAL BACKGROUND
Past midnight on November 17, 2006, Johnson forced his way through the back door of the home where his wife, Jane Doe, who was separated from him, lived with their three children. Jessica Johnson, who is Johnson's sister-in-law, was in the living room with Jane Doe. The children were asleep in their bedrooms.
At trial the victim was referred to as Jane Doe to protect her privacy. We continue the same convention on appeal.
To avoid confusion, we will refer to Jessica Johnson by her first name. We intend no disrespect by doing so.
At the time of trial in August 2008, the children's ages were 14, 10 and 7.
According to the information that Jane Doe gave to police, Johnson entered the house with a gun and said, "Bitch, you are coming with me." He grabbed her by the hair, slammed her head against the wall and kicked her after she fell to the floor. He then dragged her outside to a white sport utility vehicle. When Johnson was getting into the driver's side of the vehicle, Jane Doe ran toward the house. Johnson fired a gun at her through the vehicle's windshield. After hearing the gunshot, Jane Doe felt a pain in her left leg. She continued into the house and heard another gunshot. A bullet was later found lodged in the plaster of the living room. It had passed through a mirror and into the wall.
Johnson, who worked at a car dealership, took the vehicle from the dealership lot before driving to Jane Doe's house. The taking of that vehicle formed the basis for Johnson's conviction on charges of the unlawful driving or taking of a vehicle. (Veh. Code, § 10851, subd. (a).)
When the vehicle was recovered after the incident, a bullet hole was in the passenger side of the front windshield. A police officer testified that based on the condition of the window, it appeared that the bullet was shot from inside the vehicle through the glass.
Johnson reentered the house and grabbed and kicked Jane Doe in the living room. The couple's 12 year old son, referred to at trial as John Doe, had woken up and was standing in the hallway watching Johnson assault Jane Doe. John Doe asked Johnson to stop hitting his mother. John Doe later told police that he saw Johnson with a gun, and heard his mother saying "Don't shoot me, " but he did not see Johnson fire the gun.
Johnson dragged Jane Doe back out to the car by her hair and drove away with her. Jessica called 911 to report that Johnson shot Jane Doe and had driven away with her.
With Jane Doe in the vehicle, Johnson drove throughout Southern California for eight to nine hours, stopping twice to refill his gas tank. According to Jane Doe's statement to police, during the first two hours of the drive Johnson threatened to kill her and himself. Around 3:00 a.m., Johnson called his son's cell phone. A police officer called back and spoke with Johnson. Johnson permitted Jane Doe to speak to the officer and report that she was okay. Johnson stated that he was around the corner and told the officer that he would come back, but Johnson did not do so. Eventually, Johnson released Jane Doe at a fast food restaurant around 10:00 a.m.
Jane Doe was taken to the hospital for treatment. She had a large bump on her forehead, a cut upper lip and scratches on her back and foot. She was bleeding from her left pants leg and had what appeared to be a bullet wound on the back of her leg.
Johnson was charged with attempted willful deliberate premeditated murder (§§ 664, 187, subd. (a)); kidnapping (§ 207, subd. (a)); burglary (§ 459); assault with a firearm (§ 245, subd. (a)(2)); dissuading a witness by force or threat (§ 136.1, subd. (c)(1)); making a criminal threat (§ 422); child abuse (§ 273a, subd. (a)); corporal injury to a spouse with a prior conviction of the same offense (§ 273.5, subds. (a), (e)); and unlawful driving or taking of a vehicle (Veh. Code, § 10851, subd. (a)). The information also alleged various sentencing enhancements related to Johnson's use of a firearm and his infliction of great bodily injury on Jane Doe. (§§ 12022.53, subds. (b) (e)(1), 12022.7, subd. (a), 1192.7, subd. (c)). Johnson pled not guilty and not guilty by reason of insanity.
During her trial testimony, Jane Doe could not recall much of the incident. Contrary to what she told police, Jane Doe did not remember Johnson assaulting her or having a gun during the incident, and she claimed that she got into Johnson's vehicle of her own volition. Johnson testified in his own defense. He denied assaulting his wife or having a gun, and he claimed that Jessica shot a gun at him. However, the jury heard testimony from Jessica detailing the incident, and heard evidence about the statements that Jane Doe and John Doe made to the police.
The jury convicted Johnson on all counts and made true findings on all of the enhancement allegations. The jury also found that Johnson was sane at the time of the offenses. The trial court sentenced Johnson to an indeterminate term of 40 years to life, plus a determinate term of six years eight months.
II
DISCUSSION
A. There Is No Merit to Johnson's Contention That He Was Deprived of His Right to Present a Defense Due to the Verdict Forms on the Attempted Murder Count
Johnson contends that he was deprived of his right to present a defense because of defects in the verdict form for count 1, in which he was charged with attempted willful, deliberate and premeditated murder.
As background, we first review the applicable law on attempted murder. Unlike the crime of murder, the crime of attempted murder is not separated into different degrees. (People v. Bright (1996) 12 Cal.4th 652, 654-655, 658.) However, a finding of willfulness, deliberation and premeditation is relevant to an attempted murder conviction because, pursuant to section 664, subdivision (a), "the punishment for attempted murder can be increased from the prescribed maximum determinate term to a life sentence when it is pleaded and proved that the murder attempted was willful, deliberate, and premeditated." (People v. Arias (2010) 182 Cal.App.4th 1009, 1011, fn. 2.) "Unless the jury finds this premeditation allegation to be true, a defendant convicted of attempted murder is subject to a determinate sentence of five, seven, or nine years. (§ 664[, subd. ](a).)" (People v. Seel (2004) 34 Cal.4th 535, 540-541.) Section 664, subdivision (a) therefore "constitutes a penalty provision increasing the punishment for attempted murder beyond the maximum otherwise prescribed." (People v. Lee (2003) 31 Cal.4th 613, 616.)
Section 664, subdivision (a) states, in relevant part, that "if the crime attempted is willful, deliberate, and premeditated murder..., the person guilty of that attempt shall be punished by imprisonment in the state prison for life with the possibility of parole.... The additional term provided in this section for attempted willful, deliberate, and premeditated murder shall not be imposed unless the fact that the attempted murder was willful, deliberate, and premeditated is charged in the accusatory pleading and admitted or found to be true by the trier of fact."
The information charged Johnson with the crime of "attempted willful, deliberate, premeditated murder" and separately alleged that the attempted murder was committed "willfully, deliberately and with premeditation." The jury was instructed with CALCRIM No. 600 on the definition of attempted murder and with CALCRIM No. 601 on premeditation and deliberation. The first paragraph of CALCRIM No. 601 instructed the jury: "If you find the defendant guilty of attempted murder under Count 1, you must then decide whether the People have proved the additional allegation that the attempted murder was done willfully, and with deliberation and premeditation."
For its finding regarding the attempted murder count, the jury was given two alternative verdict forms. The verdict form to be filled out in the event of a finding of guilt stated: "We the jury, in the above entitled action find the defendant, [Johnson], guilty of the crime of Attempted Willful, Deliberate, Premeditated Murder, as charged in Count 1." The verdict form for a "not guilty" verdict stated: "We the jury, in the above-entitled action find the defendant, [Johnson], not guilty as charged in Count 1." The jury filled in the form finding Johnson guilty.
Consistent with these verdict forms, the jury was also instructed: "In this case, with respect to Count 1, your verdict as to defendant, [Johnson], may be in one of the following forms: [¶] 1-A [¶] We the jury, in the above entitled action find the defendant, [Johnson], guilty of the crime of Attempted Willful, Deliberate, Premeditated Murder, as charged in Count 1; or [¶] 1-B [¶] We the jury, in the above-entitled action find the defendant, [Johnson], not guilty as charged in Count 1."
In his opening appellate brief, Johnson argued that he was deprived of his right to present a complete defense because the jury was not asked to make a separate finding as to whether he acted willfully and with premeditation and deliberation. (See Crane v. Kentucky (1986) 476 U.S. 683, 690 ["Whether rooted directly in the Due Process Clause of the Fourteenth Amendment... or in the Compulsory Process or Confrontation clauses of the Sixth Amendment, ... the Constitution guarantees criminal defendants 'a meaningful opportunity to present a complete defense.' " (citations omitted)]; People v. Cash (2002) 28 Cal.4th 703, 727 ["The United States Constitution guarantees criminal defendants a meaningful opportunity to present a defense."].) Johnson argued that because the jury was presented only with the option to find him guilty or not guilty of attempted willful, deliberate, premeditated murder, he was deprived of the possibility of a jury finding that he committed attempted murder, but that he did not act willfully and with premeditation and deliberation.
As the Attorney General's brief points out, Johnson's argument overlooks a crucial part of the record. As the Attorney General explains, the jury was asked to make a separate finding as to whether or not Johnson acted willfully and with premeditation and deliberation. Specifically, the jury was given a separate verdict form pertaining to count 1 (obviously containing drafting errors, but still intelligible), which stated: "We the jury, in the above-entitled case find the allegation that in the commission of the above offense, the defendant, [Johnson], that the aforesaid murder attempted murder was committed Willful, Deliberate and Premeditated Murder within the meaning of [P]enal Code Section 664(a)/187 to be" either true or not true. The jury filled out the form, finding that the allegation was true.
Related to this form, the jury was instructed that it would be making findings on the special allegation in count 1 regarding whether the murder was willful, deliberate and premeditated, and that their finding would be in the form of whether the allegation was "true" or "not true."
This finding negates the factual basis for Johnson's argument, which is premised on the assumption that the jury did not make a separate finding as to whether the attempted murder was committed willfully and with premeditation and deliberation. Johnson concedes that he overlooked the finding on willfulness, premeditation and deliberation when making his original argument, and he concedes that this fact "changes the argument."
In his "change[d]" argument, Johnson contends that the verdict form on count 1 was nevertheless flawed. He argues that if the jury found the allegation of willfulness, premeditation and deliberation to be not true, it could not have filled out the verdict form on count 1 to find him guilty of attempted murder without rendering an inconsistent verdict that he was guilty of attempted willful, deliberate, premeditated murder. As Johnson explains, "[t]he only option [the jury] had if it did not want to render a contradictory verdict was to find appellant not guilty and find the allegation to be not true."
We find no indication in the record that Johnson made an objection in the trial court to the verdict forms for count 1. "An objection to jury verdict forms is generally deemed waived if not raised in the trial court." (People v. Toro (1989) 47 Cal.3d 966, 976, fn. 6; see also People v. Bolin (1998) 18 Cal.4th 297, 330 ["We find no objection of record to the form of the verdict either at the time the court proposed to submit it or when the jury returned its finding. The issue is therefore waived."].) Johnson has therefore waived his right to object to the verdict form on appeal.
Further, even if Johnson's challenge to the verdict forms was not waived, we would conclude that Johnson's argument lacks merit. Because the jury made a true finding on the allegation that Johnson acted willfully and with deliberation and premeditation, it was not faced with a situation where it was forced to return a contradictory verdict. "[T]he form of the verdict is to be regarded as immaterial where, considering the form of the information and the plea of the defendant, the intention to convict of the crime charged is unmistakably expressed." (People v. Radil (1977) 76 Cal.App.3d 702, 710 ; see also People v. Bratis (1977) 73 Cal.App.3d 751, 763 [" 'There are innumerable authorities which declare that the form of the verdict is immaterial if the intention to convict of the crime charged is unmistakably expressed.' "].) Here, the jury unmistakably expressed its intention to find that Johnson committed attempted murder and acted willfully and with deliberation and premeditation by making a true finding on the allegation and by finding Johnson guilty of attempted, deliberate, premeditated murder. Therefore, we reject Johnson's argument regarding the verdict forms for count 1.
B. The Trial Court Did Not Commit Prejudicial Error by Failing to Instruct on the Criminal Negligence Element for the Offense of Child Abuse
Johnson contends that the jury instruction for the count charging him with child abuse was flawed because it did not require a finding that he acted with criminal negligence.
In count 7, Johnson was charged with child abuse in violation of section 273a, subdivision (a). That statute provides: "Any person who, under circumstances or conditions likely to produce great bodily harm or death, willfully causes or permits any child to suffer, or inflicts thereon unjustifiable physical pain or mental suffering, or having the care or custody of any child, willfully causes or permits the person or health of that child to be injured, or willfully causes or permits that child to be placed in a situation where his or her person or health is endangered, shall be punished...." (Ibid.)
There is no dispute that the prosecution was proceeding under the theory, among others, that Johnson caused or permitted John Doe to be placed in a situation that endangered John Doe's person or health by discharging a firearm in the house and that Johnson indirectly harmed John Doe by beating Jane Doe in his presence. Our Supreme Court has established that when a prosecution under section 273a, subdivision (a) proceeds under a theory of child endangerment - with the abuse being inflicted in an indirect manner - the applicable mens rea is criminal negligence. (People v. Valdez (2002) 27 Cal.4th 778, 788 (Valdez) ["[F]or 25 years, the lower courts have identified criminal negligence as the relevant standard of culpability for section 273a, subdivision (a) felony child endangerment, and this court has applied that same standard."]; People v. Burton (2006) 143 Cal.App.4th 447, 454 ["Section 273a encompasses a wide variety of situations and includes both direct and indirect conduct.... When that harm is indirectly inflicted, the requisite mental state is criminal negligence." (citations omitted)].)
Consistent with the criminal negligence standard, the form jury instruction for violations of section 273a, subdivision (a) - CALCRIM No. 821 - provides an optional instruction on criminal negligence to be used in applicable cases. The instruction requires a finding that "the defendant was criminally negligent when (he/she) caused or permitted the child to (suffer/ [or] be injured/ [or] be endangered)" and includes a definition of criminal negligence. (CALCRIM No. 821.)
When referring to CALCRIM No. 821, we refer to the version in effect at the time of trial - CALCRIM No. 821 (Spring 2008 ed.).
The trial court instructed with CALCRIM No. 821, but it did not include the portion of that instruction relating to criminal negligence. Johnson contends that the trial court erred by omitting the criminal negligence requirement. The Attorney General acknowledges the error. We agree. The trial court has a sua sponte duty to instruct on all elements of a crime. (People v. Wims (1995) 10 Cal.4th 293, 303.) Criminal negligence is an element of the crime of child abuse with which Johnson was charged. (Valdez, supra, 27 Cal.4th at p. 788.) The omission of this element from the jury instruction relieved the prosecution of proving that element of the crime. " 'Under established law, instructional error relieving the prosecution of the burden of proving beyond a reasonable doubt each element of the charged offense violates the defendant's rights under both the United States and California Constitutions.' " (People v. Cox (2000) 23 Cal.4th 665, 676 (Cox).)
Although acknowledging the error, the Attorney General argues that it was harmless. In analyzing whether the trial court's failure to instruct on an element of the offense was prejudicial, we apply the standard set forth in Chapman v. California (1967) 386 U.S. 18, 24 (Chapman), and determine whether the error is harmless beyond a reasonable doubt. (Cox, supra, 23 Cal.4th at pp. 676-677.) "A trial court's failure to instruct the jury on an element of the crime requires reversal when 'the defendant contested the omitted element and raised evidence sufficient to support a contrary finding..., ' " but not when "it is clear 'beyond a reasonable doubt that the omitted element was uncontested and supported by overwhelming evidence....' " (People v. Garcia (2001) 25 Cal.4th 744, 760-761 (Garcia).) "[I]f no rational jury could have found the missing element unproven, the error is harmless beyond a reasonable doubt and the conviction stands." (People v. Ortiz (2002) 101 Cal.App.4th 410, 416.) In addition, "such error is harmless when the reviewing court can determine beyond a reasonable doubt, based on jury findings that may be inferred from other instructions, that the instructional error did not contribute to the verdict." (Garcia, at p. 761.)
To determine whether no rational jury could find criminal negligence unproven, we must first review the definition of criminal negligence with which the jury would have been instructed had the trial court not erred. Absent the trial court's error, the jury would have been instructed regarding criminal negligence as follows:
"Criminal negligence involves more than ordinary carelessness, inattention or mistake in judgment. A person acts with criminal negligence when:
"1. He or she acts in a reckless way that creates a high risk of death or great bodily harm;
"AND
"2. A reasonable person would have known that acting in that way would create such a risk.
"In other words, a person acts with criminal negligence when the way he or she acts is so different from the way an ordinarily careful person would act in the same situation that his or her act amounts to disregard for human life or indifference to the consequences of that act." (CALCRIM NO. 821.)
The Attorney General argues that the only conclusion a rational juror could reach was that Johnson acted with criminal negligence because he fired a gun in a house in which children were present and because John Doe was standing in the hallway when the shooting occurred. The Attorney General argues, "To put small children at risk of being shot surely comes within the definition of criminal negligence set out in CALCRIM No. 821."
We agree with the Attorney General. Criminal negligence requires that "[a] reasonable person would have known that acting in that way" would "create[] a high risk of death or great bodily harm." (CALCRIM No. 821.) Johnson discharged a gun in a house where his children were located only a few feet away in their bedrooms. Specifically, the children's bedrooms were only 10 to 15 feet away (in a straight line) from where the bullet ultimately lodged. Further, when John Doe walked into the hallway and attempted to intervene in the assault, Johnson continued beating Jane Doe while still holding the gun. That scenario created a risk that the gun could have fired, injuring John Doe. Under such circumstances, any reasonable juror would have found criminal negligence because Johnson acted recklessly with a disregard for human life or indifference to the consequences of his acts.
As we have explained, a reviewing court may also conclude that "based on jury findings that may be inferred from other instructions, ... the instructional error did not contribute to the verdict." (Garcia, supra, 25 Cal.4th at p. 761.) Here, the jury was instructed that to convict Johnson on count 7, pursuant to section 273a, subdivision (a) it must find that Johnson committed the crime "under circumstances or conditions likely to produce great bodily harm or death." In light of the jury's finding that Johnson acted under circumstances likely to produce great bodily harm or death, it appears, beyond a reasonable doubt, that had the jury been instructed regarding criminal negligence, it would have found that standard satisfied. Logically, a jury that found the crime committed under circumstances likely to produce great bodily harm or death would also find the existence of a reckless act "creat[ing] a high risk of death or great bodily harm" as required for criminal negligence. (CALCRIM No. 821.)
We therefore conclude that the trial court's error in failing to instruct on criminal negligence in count 7 was harmless beyond a reasonable doubt.
C. The Trial Court Did Not Err by Omitting an Instruction on the Lesser Included Offense of Misdemeanor Child Abuse
Johnson also contends that the trial court erred in failing to instruct on the lesser included offense of misdemeanor child abuse under section 273a, subdivision (b). Misdemeanor child abuse under section 273a, subdivision (b) differs from felony child abuse only in that it does not require "circumstances or conditions likely to produce great bodily harm or death." (§ 273a, subd. (a).)
Section 273a, subdivision (b) punishes "[a]ny person who, under circumstances or conditions other than those likely to produce great bodily harm or death, willfully causes or permits any child to suffer, or inflicts thereon unjustifiable physical pain or mental suffering, or having the care or custody of any child, willfully causes or permits the person or health of that child to be injured, or willfully causes or permits that child to be placed in a situation where his or her person or health is endangered...."
The parties do not dispute that misdemeanor child abuse is a lesser included offense of felony child abuse, and that the trial court did not instruct the jury on the lesser included offense. The issue before us is whether an instruction on the lesser included offense was required.
" '[A] defendant has a constitutional right to have the jury determine every material issue presented by the evidence [and]... an erroneous failure to instruct on a lesser included offense constitutes a denial of that right....' " (People v. Haley (2004) 34 Cal.4th 283, 312.) "[A] trial judge need not instruct the jury as to all lesser included offenses, just those that find substantial support in the evidence. [Citation.] ' "Substantial evidence" in this context is " 'evidence from which a jury composed of reasonable [persons] could... conclude[]' " that the lesser offense, but not the greater, was committed.' " (Ibid.) Because substantial evidence is required, "the existence of 'any evidence, no matter how weak' will not justify instructions on a lesser included offense." (People v. Breverman (1998) 19 Cal.4th 142, 162.) Accordingly, a trial court errs in omitting an instruction on the lesser included offense of misdemeanor child abuse only if substantial evidence exists to support a finding that the offense was not committed in circumstances or conditions likely to produce great bodily harm or death.
We conclude that the only reasonable finding a jury could make in this case is that Johnson committed child abuse in circumstances or conditions likely to produce great bodily harm or death. The facts supporting this conclusion are identical to those we cited above in our discussion of criminal negligence. Johnson put the children at serious risk of physical harm because he fired a gun in the house with the children located 10 or 15 feet away from the bullet strike, and his gun could have accidentally discharged while John Doe stood in the hallway watching Johnson assault Jane Doe. The only reasonable conclusion from those facts is that Johnson acted in circumstances or conditions likely to produce great bodily harm or death. Therefore, the trial court did not err in failing to instruct on the lesser included offense of misdemeanor child abuse.
D. The Instruction in CALCRIM No. 362 Regarding False or Misleading Statements Relating to the Charged Crime Is Constitutional
Johnson contends that the judgment should be reversed because the jury was instructed with a version of CALCRIM No. 362 which permitted the jury to infer from a defendant's false or misleading trial testimony that the defendant was conscious of his guilt of the charged crime.
The jury was instructed with CALCRIM No. 362 as follows: "If the defendant made a false or misleading statement relating to the charged crime, knowing the statement was false or intending to mislead, that conduct may show he was aware of his guilt of the crime and you may consider it in determining his guilt. [¶] If you conclude that the defendant made the statement, it is up to you to decide its meaning and importance. However, evidence that the defendant made such a statement cannot prove guilt by itself."
The equivalent instruction in use before former CALCRIM No. 362, was CALJIC No. 2.03. That instruction limited the jury's consideration of the defendant's false or misleading statements to those made before trial. As pointed out in People v. Beyah (2009) 170 Cal.App.4th 1241, 1248-1249 (Beyah), the CALCRIM committee apparently made an unintended drafting error in CALCRIM No. 362, which permitted the jury to infer a defendant's consciousness of guilt based on false statements made during trial, as well as those made before trial. In August 2009, the CALCRIM committee revised the first paragraph of former CALCRIM No. 362 to read: "If [the] defendant... made a false or misleading statement before this trial relating to the charged crime, knowing the statement was false or intending to mislead, that conduct may show (he/she) was aware of (his/her) guilt of the crime and you may consider it in determining (his/her) guilt." (CALCRIM No. 362 (Fall 2009 ed.), italics added.) However, Johnson's trial took place in August 2008, before the revision, and the jury was instructed under the former version of CALCRIM No. 362.
Johnson contends that the former version of CALCRIM No. 362 suggested to the jury that "there is a special scrutiny for the testimony of the defendant as a witness that goes directly to the question of substantive guilt" and that, therefore, the instruction "lightens the prosecution's constitutionally mandated burden of proof beyond a reasonable doubt." He further contends that the instruction "significantly burdens the right to testify and vitiates the meaningful opportunity to present a defense that relies on the defendant's testimony" in violation of the Fifth, Sixth and Fourteenth Amendments to the United States Constitution.
Beyah has already addressed and rejected the same challenge to former CALCRIM No. 362, concluding that whatever error the drafters of that instruction made, the error did not harm the defendant "because California law makes clear that a defendant's false trial testimony may, in proper circumstances, be considered as evidence of consciousness of guilt." (Beyah, supra, 170 Cal.App.4th at p. 1249.) Beyah explained that CALCRIM No. 362, as applied to false trial testimony, "did nothing more" than state the principle that "if the jury concluded that defendant intentionally gave false or misleading testimony, it may infer that defendant is aware of his guilt and may consider that inference - along with other evidence - in determining defendant's guilt." (Beyah, at p. 1250.) Beyah also explained that "although it might be said that the instruction singles out a defendant's testimony as subject to heightened scrutiny compared to other witnesses, that is true only because the principle involved is uniquely applicable to the defendant.... That is not, however, a legitimate ground for concluding that the instruction unconstitutionally burdened defendant's choice to testify or resulted in any improper inference of guilt based on the jury's evaluation of his testimony." (Ibid., fn. omitted.) The same analysis applies here. Because a jury may properly infer consciousness of guilt from a defendant's false trial testimony (People v. Showers (1968) 68 Cal.2d 639, 643; Beyah, at pp. 1249-1250), and the language used in former CALCRIM No. 362 is permissive, not mandatory, Johnson cannot establish that that the instruction lightens the prosecution's burden of proof or infringed on his right to testify and present a defense.
In addition, were we to assume that Johnson's federal constitutional rights were somehow impaired by the fact that CALCRIM No. 362 allowed the jury to infer consciousness of guilt from statements made during the course of his trial testimony, any such error was harmless beyond a reasonable doubt. (Chapman, supra, 386 U.S. at p. 24.) During his trial testimony, Johnson gave an account of the incident that was directly at odds with the other evidence, claiming, among other things, that he did not assault Jane Doe, that he did not have a gun, and that Jessica shot a gun at him. To find the former version of CALCRIM No. 362 to be applicable, the jury would necessarily have to disbelieve Johnson's testimony, find him to lack credibility and reject his factual defense. The jury's disbelief of Johnson's trial testimony in favor of the version of events reflected in other evidence presented at trial would necessarily have caused the jury to make a finding of guilt regardless of the inference permitted by CALCRIM No. 362. We therefore conclude that it is clear beyond a reasonable doubt that any error in instructing with the former version of CALCRIM No. 362 did not contribute to the verdict.
E. The Sentence for the Kidnapping Count Need Not Be Stayed Pursuant to Section 654
Johnson's final argument is that, pursuant to section 654, the sentence imposed for the kidnapping count should be stayed because it was part of the single course of conduct giving rise to the attempted murder count.
Under section 654, subdivision (a), "[a]n act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision...." (§ 654, subd. (a).) "[S]ection 654 applies not only where there was but one act in the ordinary sense, but also where there was a course of conduct which violated more than one statute but nevertheless constituted an indivisible transaction.... If all the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one." (People v. Perez (1979) 23 Cal.3d 545, 551, citations omitted, italics added.) Whether offenses are "indivisible" for these purposes is determined by the "defendant's intent and objective, not the temporal proximity of his offenses." (People v. Harrison (1989) 48 Cal.3d 321, 335.) "If [a] defendant harbored 'multiple criminal objectives, ' which were independent of and not merely incidental to each other, he may be punished for each statutory violation committed in pursuit of each objective, 'even though the violations shared common acts or were parts of an otherwise indivisible course of conduct.' " (Ibid.) The application of section 654, thus, "turns on the defendant's objective in violating" multiple statutory provisions. (People v. Britt (2004) 32 Cal.4th 944, 952.) Where the commission of one offense is merely " 'a means toward the objective of the commission of the other, ' " section 654 prohibits separate punishments for the two offenses. (Britt, at p. 953.)
Where "section 654 prohibits multiple punishment, the trial court must stay execution of sentence on the convictions for which multiple punishment is prohibited." (People v. Reed (2006) 38 Cal.4th 1224, 1227.)
We apply a substantial evidence standard of review when determining whether section 654 applies. "The determination of whether there was more than one objective is a factual determination, which will not be reversed on appeal unless unsupported by the evidence presented at trial." (People v. Saffle (1992) 4 Cal.App.4th 434, 438; see also People v. Osband (1996) 13 Cal.4th 622, 730 [approving substantial evidence standard of review as stated in Saffle].)
Johnson contends that his acts constituting the kidnapping of Jane Doe and her attempted murder were incident to the "single objective of forcing [Jane Doe] into the car with him and driving away with her.... His objective in shooting her was to facilitate the kidnapping." We reject this argument because it is contrary to the jury's findings on the attempted murder count. By convicting Johnson of attempted murder, the jury necessarily found, as stated in the instruction, that "the defendant intended to kill that person." That is a different objective than is required for kidnapping, which as the jury was instructed, is the act of taking, holding or detaining another person by force. (CALCRIM No. 1215.) The attempted murder was therefore not committed with the objective of facilitating the kidnapping, but rather with the objective of killing Jane Doe.
Further, although Johnson does not raise the argument, there is also no evidence that the kidnapping was committed to facilitate the attempted murder. According to the undisputed evidence at trial, after Johnson succeeded in kidnapping Jane Doe and driving away with her, he made no further attempt to murder her.
Substantial evidence therefore supports a finding that section 654 is inapplicable because Johnson acted with different objectives in committing the kidnapping and the attempted murder.
DISPOSITION
The judgment is affirmed.
WE CONCUR: HUFFMAN, Acting P. J.HALLER, J.