Opinion
G052044
12-20-2016
THE PEOPLE, Plaintiff and Respondent, v. ANGLIA MARIE JUAREZ, Defendant and Appellant.
Jared G. Coleman, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Melissa Mandel, Alana R. Butler and Ryan H. Peeck, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 08NF2286) OPINION Appeal from a judgment of the Superior Court of Orange County, James Edward Rogan, Judge. Affirmed in part, reversed in part and remanded. Jared G. Coleman, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Melissa Mandel, Alana R. Butler and Ryan H. Peeck, Deputy Attorneys General, for Plaintiff and Respondent.
Appellant Anglia Marie Juarez was convicted of burglary, kidnapping and receiving stolen property. She contends the trial court prejudicially erred in failing to instruct the jury it could consider whether her movement of the alleged kidnapping victim was incidental to the burglary in deciding if she was guilty of kidnapping. We agree this failure mandates reversal of appellant's kidnapping conviction. We remand for retrial on the kidnapping charge or, alternatively, resentencing on the remaining convictions.
FACTS
In 2008, Diego C. and his wife and three daughters were living in a three-bedroom apartment in Anaheim. Diego rented one of the bedrooms to Milton Macias and his wife, who had two very young children. For a six-month period, Diego also allowed a 16-year-old named Javier to live at the apartment. Javier's stay at Diego's apartment went well at first. Once Javier got settled in there, Diego's daughters even started referring to him as their brother. However, a rift eventually developed between Javier and Diego, and Javier moved out in June 2008, bitter because he believed Diego owed him money for some work he had done for him. He kept a key to the apartment.
Diego and Javier met by chance outside a Home Depot store. At that time, Javier was looking for work, and Diego offered him both a job and a place to live.
Two weeks later, on the Fourth of July, Diego and his wife left the apartment for work around 7:30 a.m. Since their two oldest daughters were out of town, they made arrangements for Mr. and Ms. Macias to babysit their youngest child, eight-year-old Viviana. The record is unclear as to where the Maciases were when Diego and his wife left for work. But we do know Viviana was in the living room watching television when her parents left the apartment.
Viviana and Diego testified they saw Milton Macias at the apartment that morning, but neither Milton nor his wife testified at trial. The defense argued Diego and his wife actually left Viviana home alone that morning and concocted the story about the Maciases watching her so they would not get in trouble with authorities for leaving her by herself.
Soon after they left, Viviana noticed the doorknob to the front door jiggling. Then appellant - a woman Viviana had never seen before - opened the door with a key and entered the apartment. Appellant sat down on the couch next to Viviana and asked who her parents were. After Viviana told her, appellant went into her parents' bedroom. Viviana followed her to the bedroom and discovered appellant going through her parents' drawers and taking paperwork. She asked appellant what she was doing, but appellant just ignored her.
Eventually, appellant and Viviana returned to the living room. Appellant told Viviana she was going to be coming with her, which frightened Viviana. Although appellant did not use physical force against her or threaten her in any way, Viviana felt appellant might hurt her if she refused to comply. So when appellant told her to come along, she went with her outside and got into her truck. Appellant then drove Viviana to a laundromat that was located about 100 yards from Viviana's apartment. Once they arrived there, appellant walked Viviana inside the laundromat and told her that her brother was coming to get her.
Not having any brothers, Viviana assumed appellant was talking about Javier. In fact, Viviana saw Javier at the laundromat momentarily, but he only spoke to appellant, not her. Then the adults left, and Viviana was on her own. Fortunately, one of Viviana's neighbors noticed her standing by herself and contacted her family. A short while later, Diego picked up Viviana at the laundromat and drove her home. That, however, was not the end of their ordeal.
When they arrived home, they discovered their apartment had been ransacked. Among the items missing were a desktop computer system, printer, VCR, satellite T.V. dish, sewing machine and an iPod music player. They also realized someone had gone through the drawers in Diego's bedroom and taken $700 in cash and a packet of paperwork that included his checkbook and credit cards, as well as his daughters' social security cards and birth certificates.
Appellant was arrested five days later. At the time, she had Diego's checkbook and iPod, but she denied stealing any of his belongings or removing Viviana from her apartment. She was charged with kidnapping, burglary and receiving stolen property. At trial, she admitted committing the latter two crimes and admitted taking Viviana from her apartment to the laundromat. However, she claimed she did so out of concern for Viviana, not to kidnap her.
During her testimony, appellant insisted she and Javier were not really good friends. However, on the morning in question, she saw him on the street and agreed to give him a ride to his sister's house. On the way there, Javier asked her to stop by his apartment so he could get his backpack. He directed her to Diego's apartment, and once they arrived, he acted like he lived there. However, he told appellant he was not allowed to go inside the apartment because he was "running" from probation. He asked appellant if she would be willing to go in and get his backpack for him. Appellant said no at first, but after Javier assured her no one was inside the apartment, she agreed to do it. Javier gave her the key to the apartment and told her he would wait for her at the corner laundromat.
Appellant entered the apartment to find Viviana sitting in the living room. Appellant assumed the child was not alone, but as she began looking around the apartment, she did not see or hear anyone else. Appellant made her way into the bedroom and grabbed a backpack she believed belonged to Javier. Then she went back to the living room and asked Viviana where her parents were. Viviana said they were working, and her sisters were in Las Vegas. This raised concerns in appellant's mind about Viviana's safety and well-being. She asked Viviana if she knew Javier and would like to go and see him, and Viviana said yes; she did not seem the least bit scared or worried about the situation, so she escorted her outside and drove her to the laundromat to see Javier.
When they arrived there, appellant saw Javier standing by a wall in the area. She took Viviana inside the laundromat and assured her Javier would be with her shortly. Then she went outside and spoke to Javier. After their chat, appellant assumed Javier was going to personally look after Viviana or make arrangements for her care. However, appellant did not stick around to see what happened to the child. Instead, her mind turned to thievery.
Thinking back on all the items she had seen inside Diego's apartment, appellant left the laundromat and drove straight back to the apartment. She then loaded up her truck with Diego's property and fled the scene. When she was arrested five days later, she was afraid to admit taking Viviana from the apartment because she did not know what became of her at the laundromat. However, at trial appellant claimed she removed Viviana from the apartment for the child's protection and had no intention of committing burglary when she first entered the apartment.
In closing arguments, the prosecutor asserted appellant actually had two criminal intents when she initially entered the apartment. First, she wanted to steal Diego's daughters' birth certificates and social security information for Javier, and second, she wanted to remove Viviana from the apartment so there would not be anyone there when she went back and took "the big stuff."
In the end, the jury convicted on all three counts, kidnapping, burglary and receiving stolen property. It also found true allegations that appellant was on bail at the time of the crimes and that a nonaccomplice (Viviana) was present during the burglary. The trial court sentenced appellant to eight years four months in prison, representing five years for the kidnapping, sixteen months for the burglary and two years for the bail enhancement.
The court stayed appellant's sentence for receiving stolen property. (Pen. Code, § 654.) All further statutory references are to the Penal Code.
DISCUSSION
Appellant contends the trial court's kidnapping instructions were defective because they failed to inform the jury to consider whether Viviana's movement was merely incidental to the burglary. We think she's right.
Appellant was convicted of simple kidnapping in violation of section 207, which states: "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." (Id., subd. (a).) "[T]he amount of force required to kidnap . . . [a] child is the amount of physical force required to take and carry the child away a substantial distance for an illegal purpose or with an illegal intent." (Id., subd. (e).) Therefore, to prove the crime of simple kidnapping, the prosecution must show: "'(1) a person was unlawfully moved by the use of physical force or fear; (2) the movement was without the person's consent; and (3) the movement of the person was for a substantial distance.' [Citation.] This last element, i.e., that the victim be moved a substantial distance, is called the 'asportation element.' [Citation.]" (People v. Bell (2009) 179 Cal.App.4th 428, 435 (Bell).)
In People v. Martinez (1999) 20 Cal.4th 225, 237, our Supreme Court analyzed the asportation element of simple kidnapping and decided the trier of fact must examine the totality of the circumstances in determining whether the victim has been moved a substantial distance. In particular, the jury should consider "not only the actual distance the victim is moved, but also such factors as whether that 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." (Ibid., fn. omitted.)
"In addition, 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. . . . [S]uch consideration is relevant to determining whether more than one crime has been committed, and is amply supported by the case law." (People v. Martinez, supra, 20 Cal.4th at p. 237.) We will refer to this consideration as the associated crime factor.
In this case, the trial court properly instructed the jury to consider the totality of the circumstances in determining whether the asportation element had been met, including whether Viviana's movement increased her risk of harm or decreased the likelihood of her detection. Consistent with appellant's theory of the case, the court also told the jury appellant was not guilty of kidnapping if, in transporting Viviana, she acted out of concern for the child's safety. However, the trial court did not instruct on the associated crime factor. Consequently, the jury was never told to consider whether Viviana's movement was incidental to the commission of another offense in deciding if her movement was substantial for purposes of the asportation requirement.
Appellant argues this was error because there was sufficient evidence from which the jury could reasonably find that she moved Viviana for the purpose of burglarizing her apartment. The timing of events, i.e., appellant's immediate return to the apartment after dropping off Viviana at the laundromat, certainly supports appellant's position. As a matter of fact, the prosecutor specifically argued to the jury that one of the reasons appellant took Viviana to the laundromat was so that she could go back and ransack her apartment. Nonetheless, the Attorney General argues instructions on the associated crime factor were not required because they were not requested and would have been inconsistent with appellant's defense that she transported Viviana to the laundromat out of concerns for the child's safety. We think appellant has the better argument.
"A trial court bears a sua sponte duty to instruct the jury on the essential elements of an offense [citation], and '"on the general principles of law governing the case,"' i.e., '"'those principles of law commonly or closely and openly connected with the facts of the case before the court.'"'" (Bell, supra, 179 Cal.App.4th at p. 434.) In contrast, the duty to instruct sua sponte on defenses arises "'only if it appears that the defendant is relying on such a defense, or if there is substantial evidence supportive of such a defense and the defense is not inconsistent with the defendant's theory of the case.'" (People v. Wickersham (1982) 32 Cal.3d 307, 326.)
As we explained in Bell, the associated crime factor, when supported by the facts of the case, does not constitute a defense to the crime of kidnapping. Rather, it is one of several factors to be considered in determining whether the movement in question was substantial. (Bell, supra, 179 Cal.App.4th at p. 440 ["The factor is not a separate threshold determination of guilt or innocence"].) Consequently, it is immaterial appellant failed to rely on the associated crime factor at trial and actually presented a defense that was at odds with the factor's application. Rather, the pertinent question is, did that factor encompass a principle of law that was commonly or closely and openly connected with the facts of the case so as to require the trial court to instruct on it?
This inquiry turns on whether the burglary appellant committed was an associated crime of the alleged kidnapping. An associated crime "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.) Relying on appellant's testimony that she did not form the intent to commit burglary until after she took Viviana to the laundromat, the Attorney General argues the crime of kidnapping was already complete by the time appellant returned to the apartment and committed the burglary. Therefore, the asportation did not occur during the course of burglary, and there was no duty to instruct on the associated crime factor.
However, as argued by the prosecutor below, the evidence indicated appellant harbored the intent to steal when she first entered the apartment. In fact, Viviana testified that after appellant came into the apartment, she saw appellant going through her parents' bedroom drawers and taking various paperwork. Based on this, it is reasonable to infer appellant had criminal intentions when she initially entered the apartment. This inference is also supported by the jury's verdict. The charges against appellant included a special allegation that a nonaccomplice, i.e., Viviana, was present during the burglary. So by finding that allegation true the jury necessarily determined the burglary occurred (or at least started) during appellant's initial visit to the apartment. It was critical that they know that even if they rejected appellant's version of the facts - as they apparently did - they still had to consider whether she removed the child merely to facilitate the thefts.
At oral argument, respondent argued the jury's true finding on the nonaccomplice allegation could have been based on the belief someone from the Macias family was present when appellant came back to the apartment. However, the information named Viviana alone as the sole nonaccomplice with respect to the burglary. Besides that, it strikes us as being exceedingly unlikely appellant would have been able to waltz into the apartment and take all of the big items she stole if Macias or his wife had been there. The record simply does not support this interpretation of the jury's verdict.
All things considered, we are convinced there was sufficient evidence to support a finding appellant removed Viviana from the apartment during the course of the burglary. Therefore, the trial court should have instructed on the associated crime factor - arcane as it was - to fully inform the jury's analysis.
We must next decide whether this failure was prejudicial. In Bell and the subsequent case of People v. Delacerda (2015) 236 Cal.App.4th 282, we applied the harmless-beyond-a-reasonable doubt test enunciated in Chapman v. State of California (1967) 386 U.S. 18 (Chapman) in determining whether the failure to instruct on the associated crime factor was prejudicial. However, the Attorney General argues that standard is inapt, and the more forgiving standard applied in People v. Watson (1956) 46 Cal.2d 818 should control. (See id. at p. 836 [reversal not required under state law unless the defendant can show it is reasonably probable he would have obtained a more favorable verdict absent the complained-of error].)
In so arguing, the Attorney General correctly points out the associated crime factor is not an element of kidnapping but simply a circumstance bearing on the asportation element. Nevertheless, it is clear the trial court's failure to instruct on the associated crime factor resulted in incomplete instructions with respect to that element. Whenever the jury is misinstructed on an element of a charged offense - whether in the form of omitted, incomplete, incorrect or inconsistent instructions - the error implicates the defendant's federal constitutional right to a fair trial and due process of law, which triggers the more stringent standard of review set forth in Chapman. (Neder v. United States (1999) 527 U.S. 1, 8-15; Pope v. Illinois (1987) 481 U.S. 497, 501-504; People v. Hughes (2002) 27 Cal.4th 287, 348-353; People v. Flood (1998) 18 Cal.4th 470, 491-504; People v. Lee (1987) 43 Cal.3d 666, 673-677; People v. Rubio (2004) 121 Cal.App.4th 927, 934-935.) Under that standard, reversal is required unless it appears "beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained." (Chapman, supra, 386 U.S. at p. 24.)
In this case, the failure to instruct on the associated crime factor was not harmless beyond a reasonable doubt. That appellant ransacked Diego's apartment almost immediately after taking Viviana to the laundromat is strong evidence she removed Viviana from the apartment to facilitate the burglary. Indeed, as the prosecutor argued, it appears Viviana's removal was imperative to the burglary because it paved the way for appellant to come back and take the big items from the apartment. While appellant testified she removed Viviana to protect the child, not to commit burglary, the jury obviously did not believe appellant on this point. Moreover, it is quite possible appellant would have opted to stay off the witness stand altogether had she known the trial court was legally required to instruct the jury on the associated crime factor. In light of all these considerations, the failure to instruct on that factor was not harmless error. Therefore, appellant's kidnapping conviction cannot stand.
Appellant also contends section 654 precludes her punishment for both kidnapping and burglary because she committed the kidnapping solely to facilitate the burglary. This claim is moot in light of our holding that appellant's kidnapping conviction must be reversed due to instructional error. --------
DISPOSITION
Appellant's conviction for kidnapping in count 1 is reversed. The matter is remanded to allow the prosecution to retry appellant on the kidnapping count if it so chooses. If the prosecution elects not to pursue this option, the trial court shall resentence appellant on the remaining counts. In all other respects, the judgment is affirmed.
BEDSWORTH, J. WE CONCUR: O'LEARY, P. J. FYBEL, J.