Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County, Super. Ct. No. 05CF2807 James A. Stotler, Judge.
Sharon G. Wrubel, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Lilia E. Garcia and Marilyn L. George, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
ARONSON, J.
A jury convicted Kenneth Mamea Leuelu of extortion (Pen. Code, § 518), vehicle theft (Veh. Code, § 10851, subd. (a)), kidnapping (§ 209, subd. (a)), torture and infliction of great bodily injury (§§ 206, 12022.7), and murder with kidnapping and torture special circumstances (§§ 187, subd. (a), 190.2, subd. (a)(17)(B) & (18)), plus domestic battery resulting in corporal injury (§§ 273.5, subd. (e), 245, subd. (a)(1)). Defendant challenges the sufficiency of the evidence to support his torture conviction and the torture special circumstance for his murder of Reyes Hermosillo on Christmas Day 2003. He also contends the trial court erred by admitting evidence of his tattoos, graffiti he inscribed at the murder scene, and his claim of gang membership, and by denying his request for a voluntary intoxication instruction. Defendant also argues section 654 required the trial court to stay imposition of sentencing on either the kidnapping count or the murder count because the latter involved the special circumstance of murder during the commission of a kidnapping. As we explain below, none of these contentions has merit, and we therefore affirm the judgment. We note the Attorney General points out, and defendant agrees, that the abstract of judgment should be corrected to reflect the oral pronouncement of judgment that victim restitution of $1,195.50 in funeral expenses is to be paid to Hermosillo’s brother. We therefore affirm the judgment with directions to the trial court to make this correction and to forward the amended abstract of judgment to the Department of Corrections and Rehabilitation.
All further statutory references are to the Penal Code, unless otherwise specified.
I
FACTUAL AND PROCEDURAL BACKGROUND
Michael Loomis stopped by Hermosillo’s home in Stanton a few days before Christmas 2003. As he approached Hermosillo’s front door, defendant called out from a neighboring garage, “‘Your dog’s over here.’” Entering the garage, Loomis observed Hermosillo was “bruised, beat up.” According to Loomis, Hermosillo responded with uncharacteristic subservience and a reserved manner, “like a puppy dog to a degree,” to defendant’s “overbearing” and “controlling” demeanor. When Loomis denied defendant’s accusation that he (Loomis) “was making... moves on” defendant’s wife, who Loomis had never met, defendant “got up off the couch and... bitch-slapped [Hermosillo] with the back of his hand....” In an attempt to extricate Hermosillo, Loomis asked him for a ride to retrieve a vehicle, but defendant quashed the gambit, stating, “‘His car is mine.’” Loomis soon departed alone; he never saw Hermosillo alive again.
Loomis testified he first met defendant four to six weeks earlier, when he arrived at Hermosillo’s house just as Hermosillo and defendant pulled up in another vehicle. The pair approached Loomis as he exited his car, with Hermosillo “hot-footing it” in front of defendant. Observing that Hermosillo had a black eye and a red mark on his face, Loomis asked what happened and defendant answered, “‘Yeah, I hit him.’” Defendant also raised his shirt to display tattoos and claimed to be a gang member. Unfamiliar with gangs, Loomis could not recall the gang’s name, but he felt threatened. He learned defendant wanted money back from Hermosillo, who “had sold him some bunk drugs or bad drugs,” but Hermosillo did not have the $25 to repay him. To defuse the situation, Loomis paid defendant $20 and Hermosillo promised to reimburse the remaining $5.
Diana Teves, a neighbor, witnessed defendant yelling at Hermosillo and his girlfriend, Laura Parker, on a daily basis in the two weeks before Christmas 2003. Defendant would pound on the couples’ front door for two or three minutes at a time and, when Hermosillo would finally answer, defendant would grab him and pull him into defendant’s garage, berating Hermosillo as his “bitch.” Hermosillo was five feet 10 inches tall and weighed 114 pounds. Defendant, of Samoan ancestry, stood about the same height or taller, weighing 240 pounds, with a muscular build.
Hermosillo telephoned his older brother, Xavier, on December 20, 2003, asking for money, but Xavier had none to spare, so Hermosillo turned to another family relation, Kenneth Gillespie. Working at a job site as a handyman, Gillespie answered a knock at the door: Hermosillo stood there bruised and bloody, with two black eyes, a broken nose, and a bloody rag wrapped around one of his hands. Hermosillo stated he had been in a barroom brawl the night before, but rolled his eyes over his shoulder to the man standing behind him, who Gillespie identified in court as defendant. Hermosillo implored Gillespie to lend him some money, explaining he needed it “very badly,” and also asked Gillespie if he had access to “anything,” which Gillespie understood to mean methamphetamine. Gillespie declined to help Hermosillo obtain drugs, but offered to lend him money on being paid at the end of the day. Gillespie did not answer his cell phone the rest of the afternoon, but noticed later Hermosillo had called nine or 10 times, leaving messages that “he really needed the money....”
After Gillespie left work around 8:00 p.m., he pulled over when he noticed a Lincoln Town Car behind him flashing its lights. Hermosillo exited the trailing vehicle and limped towards Gillespie. He appeared to be favoring his right shoulder and, as Hermosillo hunched over the car window, Gillespie noticed his face looked much worse; it was swollen, and “he had blood coming from his ears and his nose.” Hermosillo was crying. He pleaded for money; Gillespie agreed to cash his work paycheck for him. The two cars proceeded to a grocery store. Gillespie cashed his check and handed $200 to Hermosillo, who promptly turned it over to defendant, who was sitting in the driver’s seat of the Town Car. Gillespie advised that visitors were prohibited at his job site but defendant responded, “‘Well, whatever it takes, you know, to get my money, you know.’”
The next day, December 21st, Linda Burris received a telephone call around 8:00 p.m. from her sister, Laura Parker, Hermosillo’s girlfriend. Laura was in tears, explaining defendant had been “‘beating on’” her and was “‘beating on [Hermosillo] right now.’” Burris saw defendant and Hermosillo the next night, but not before a neighbor reported another beating to the police.
On December 22, hearing a commotion outside her home, Teves looked out her security screen to see defendant inflicting a “severe beating” on Hermosillo with his fists, striking him about the chest and neck area for several minutes as Hermosillo doubled over, offering no resistance. Teves saw blood on the back of Hermosillo’s neck and directed her daughter to call the police. Orange County Sherriff’s Deputy Sam Kong responded to the scene around noon, finding Hermosillo and defendant in defendant’s garage. Hermosillo was bruised and bloodied on his head but denied defendant had beaten him. To the contrary, he claimed he had been injured in a bar fight on Beach Boulevard in Buena Park; he declined to file a report or receive medical attention. A police investigator later testified at trial that no dispatch records for Buena Park or the surrounding area reflected a bar fight on December 21 or 22, 2003.
Around 8:00 p.m. on December 22, Teves heard another commotion outside her home. Stepping outside, she saw defendant in the driver’s seat of Parker’s Town Car, with Hermosillo in the passenger seat. Teves heard Parker screaming, “‘Leave my car. That’s my car.’” After Parker reached into the vehicle as if to turn it off, Teves saw her “come[] flying back from the car like she had been hit.” Parker began yelling, “‘Call the police. Call the police.’” Defendant backed the car out of Parker’s driveway and stopped in front of Teves’s house. When Parker begged Hermosillo to get out of the car, defendant reached over and punched Hermosillo in the chest with the back of his fist, warning him, “‘Stay in the car.’” Parker hung on to the car as she screamed, “‘Reyes, stay — Reyes, get [out] of the car,’” but defendant pulled away with Parker running after them. Police records confirmed Parker filed a report the next day that her car had been stolen.
Defendant and Hermosillo paid Burris a visit at her home between 8:00 and 9:00 p.m. on December 22. Defendant told Burris he was looking for her sister, Parker, because “he wanted to know if she called the police the night of the 21st when he was beating on her.” Burris noticed Hermosillo’s face “was bashed in badly.” Hermosillo claimed he had been in a bar fight and that “‘if it wasn’t for [defendant], I’d be dead.’” Burris responded sarcastically, “‘What did he do, stop pounding on you?’” Defendant only smirked when Burris accused him directly of beating Hermosillo and brushed off Burris’s accusation, “‘You have him terrified.’” When defendant stated something like, “‘He owes me some money, that shit,’” Burris offered to pay defendant double whatever Hermosillo’s indebtedness might be, but defendant persisted instead in asking Parker’s whereabouts. Burris refused to tell him. When defendant withdrew a glass pipe from his pocket, Burris initially implored him to let Hermosillo use it but, before either smoked any drugs, Burris changed her mind and directed them to leave. She tried to convince defendant to take Hermosillo to a hospital, or to allow him to stay to get some sleep and food, but defendant “just walked out with [Hermosillo].”
Hermosillo checked into a Motel 6 on Katella Avenue in Stanton between 10:00 and 11:00 p.m. The desk clerk observed another man with Hermosillo, standing close to him, but Hermosillo insisted the room was only for himself. Hermosillo’s face was beaten and scratched, he was unsteady on his feet, and appeared intoxicated. The man with Hermosillo later returned to the motel lobby to request a room away from the street. After the clerk assigned a new room, she noticed the man park a Town Car near that room. She later observed he had tattoos on his chest when she saw him outside the room without his shirt. She explained the room cost more for two people, but he denied he was staying. She thought he might be under the influence of methamphetamine because his eyes were dilated. At trial, she noted defendant resembled a photograph she earlier identified for police, but she could not positively identify him in the courtroom.
The next evening, around 8:00 p.m. on December 23, Hermosillo visited his brother Xavier’s house. Hermosillo’s grown niece, Karen, answered the door and noticed defendant with her uncle. The pair informed her they needed to use the phone to try to reach Parker. Hermosillo made several calls while defendant stood near him with his arms crossed. Defendant also used the telephone. Hermosillo looked like he had been beaten up; he had two black eyes, his face was swollen, his legs wobbled when he stood up, his head bobbed, and he slurred his words. Karen described him as “a whipped puppy dog.” Xavier awoke and when he observed, “‘You got beat up,’” Hermosillo did not respond. He and defendant soon departed, but Hermosillo called later that evening requesting $100, which Xavier agreed to give him.
We use the witnesses’ first names for clarity and ease of reference, and intend no disrespect. (See In re Marriage of Olsen (1994) 24 Cal.App.4th 1702, 1704, fn. 1.)
Defendant and Hermosillo arrived within 20 minutes. Defendant was driving. Xavier went outside to meet them and told Hermosillo to go inside the house. Xavier attempted to hand the money to defendant but he refused, saying it was for Hermosillo. Xavier approached the house, defendant exited the car and followed him, and Hermosillo came back outside. Hermosillo stayed silent when Xavier asked for an explanation; when pressed, defendant said there was “a little problem,” repeated “that there was a problem, that Reyes had done some dirty things to him,” and explained Hermosillo “stole some property from him and... owed him money.” Xavier sought confirmation from Hermosillo, who said nothing. Defendant claimed Hermosillo owed him $800 for drugs, but Hermosillo again stonewalled Xavier’s queries. When Xavier asked who had beaten Hermosillo, defendant admitted to “a little scuffle” with him. As Xavier continued to ask his brother questions to no avail, inviting him inside, Hermosillo instead decamped in Parker’s Town Car, with defendant driving. Xavier summed up his brother’s demeanor that night: “He looked scared.”
A different clerk checked Hermosillo into the Motel 6 around 10:40 p.m. He was bleeding from his face and hands and actually bled onto the lobby counter. He returned to the lobby a few minutes later to switch his room location to the back of the motel. A Samoan man was with Hermosillo; the pair entered a blue Lincoln when they left the lobby.
Another Motel 6 clerk, Bessie McEwen, checked Hermosillo into the same room the next day, December 24, around 12:30 p.m. Hermosillo looked “terribly beat up. [¶]... [¶] His whole face was so black and blue and purple and so swollen up. There was... a cut on his nose, and... one on [his] forehead.” To balance himself, he hung on his companion, who did most of the talking. When McEwen exclaimed, “‘My God, what happened to him,’” the companion responded “that he had gotten himself in some kind of trouble, that he owed some people a lot of money.” The companion rebuffed McEwen’s suggestion that Hermosillo needed to go to the hospital, explaining they had just come from there but “it was so crowded” and Hermosillo just needed to rest. The man also claimed he had taken Hermosillo to the U.C.I. Medical Center the previous evening. McEwen had been a nurse’s aide, received some training towards a nursing degree, and at the motel had checked in a few patrons under the influence of drugs. Hermosillo stood unsteadily, spoke softly and almost incoherently, seemed disoriented, his eyes were dilated, and McEwen believed he had a concussion, but she attributed his condition to his injuries, not intoxication. His companion displayed no signs of being under the influence of drugs or alcohol.
Burris received a telephone call at her home at 8:00 or 9:00 p.m. that evening. She heard Hermosillo say her sister’s name with difficulty. Burris heard a voice in the background, so she ordered Hermosillo to yield the phone to defendant, stating, “‘Give me that fat bastard.’” Defendant took the phone, boasted to Burris he now had a kidnapping charge, and slammed the phone down, ending the call.
A deputy coroner later estimated Hermosillo died sometime between 12:30 p.m. and 5:30 p.m. on Christmas Day. The cause of death was a stab wound and blunt force trauma.
Timothy Frye testified defendant visited him in the early afternoon on Christmas Day, around 1:30 p.m. Defendant was alone. He smoked methamphetamine with Frye. Frye supplied the methamphetamine and, in exchange, defendant gave him a knife. Frye recognized the knife belonged to Hermosillo. A few days before Christmas, Hermosillo and defendant had arrived at Frye’s house in a Lincoln Town Car. Frye did not give the pair any methamphetamine that day.
Although he changed his testimony at trial, defendant’s father admitted to police that his son stopped by his home around 3:00 or 4:00 p.m. on Christmas Day. He remained in the garage of the house and only spoke briefly with his father, asking him for $40, which his father declined to give him.
That evening, defendant’s wife, Patricia Auama, knocked on her neighbor Faatiga Atonio’s door. Auama seemed concerned for her husband and Atonio agreed to accompany her to meet him. Patricia drove her van and, as they pulled up next to defendant, who was parked in the Town Car, defendant hollered at his wife, “‘Why are you bringing him?’” and “‘shut the fuck up before I come over there and kill you.’”
Atonio directed Auama to drive to his brother’s house. Defendant followed them. When they parked, defendant exited his car and stalked straight for Patricia. Atonio tried to intercept defendant, but he circled the van, entered the passenger side, forcefully slapped Auama, and grabbed her by the throat. As Auama began vomiting, defendant turned his attention to Atonio, demanding to know why he was there.
Atonio diverted defendant by pointing out the van had to be moved because it was blocking a driveway. As Auama moved the van, defendant asked Atonio for $40. Defendant refused initially to tell Atonio why he wanted the money, then asked if he could keep a secret and walked him over to the Town Car, where he opened the trunk. Atonio caught a glimpse of something wrapped in a blanket before defendant closed the trunk. Defendant disclosed he needed the $40 “to get cans of gasoline” to “burn him and burn the car.” Atonio advised defendant he would see if he could get the money from his brother. He went inside the house, called his fiancée to have her send the police, and, while he waited outside for their arrival, he noticed defendant in the van with his wife. Atonio blurted, “‘Arrest him. There’s a dead body inside the trunk of the car,’” to the first officer on the scene. Defendant fled, but was soon captured in the bathroom of nearby home after a house-to-house search. He had bruises on the backs of both hands and an abrasion on his right hand.
The police discovered Hermosillo’s body in the trunk of the Town Car, wrapped in bedding matching missing items from the Motel 6. The bedding was secured with electrical tape around the neck, knees, and ankles. At the motel, investigators found blood on the carpet and a large amount of blood on the mattress, though it was missing portions of fabric that had been torn away. Chemical testing revealed that blood stains pervaded the room and bathroom. A wooden crossbar was missing from the bottom of a chair. The police found the bloodied crossbar in the Town Car, along with bloody towels, a shirt, and a pillowcase. DNA testing of samples from the crossbar, shirt, and mattress revealed the blood was Hermosillo’s. The bloodstained shirt had a cut across the front and down the lower left side. DNA samples from electrical tape found in the car matched defendant’s profile. The police also found sheets in the car graffitied in pen with “K.D.,” “Samoan,” “fuck,” “Mr. K.D.,” “Samoan Style,” “K DEE,” and “Samoan Strong.” Defendant went by the nickname, “K.D.”
Forensic pathologist Dr. Joseph Halka performed the autopsy on Hermosillo, who was 39 years old when he died. The cause of death was internal blood loss caused by the stab wound and blunt force trauma. Death came slowly, over several hours. The stab wound to the chest had been inflicted with so much force that it broke a rib. The knife penetrated the third rib where it connected to the sternum and nicked the lung, which collapsed in a matter of hours rather than minutes. Blood and clotted blood accumulated in the pleural cavity, the abdominal cavity, and the pericardial sac. Halka explained that the large volume of blood meant the bleeding continued while the heart was beating. The presence of white blood cells and an inflammatory response in the tissue near the stab wound indicated the victim had sustained the injury between two and 12 hours before death. The absence of these indicators in the area near three broken ribs on Hermosillo’s back suggested that blow was inflicted closer to the time of death — within two hours. Petechial hemorrhages in “a definite pattern” at the site of the back injury were consistent with a stomping blow inflicted by a shoe through fabric. The three broken ribs lacerated the spleen, liver, and left kidney, causing internal bleeding.
Multiple superficial stab wounds covered the body. Hermosillo suffered incision wounds at the base of a finger, on the left arm, left buttock, and right forearm. The wounds on Hermosillo’s arms and hand may have been defensive wounds, according to Halka. Hermosillo suffered bruising down both sides of his face and neck, ending with an abrasion to the skin over one collarbone. Under the contusions and abrasions around the neck, Halka found that the hyoid bone on the left side of the throat next to the larynx was broken, indicating strangulation. Halka explained that it takes a great deal of pressure to break the hyoid bone. A person suffering this type of injury would likely pass out for a period of time and, upon regaining consciousness, have difficulty speaking because the hyoid connects the larynx to the tongue muscles.
A subdural blood clot and hemorrhaging in the muscles and tissues in the left temporal area above the ear suggested a blunt impact of sufficient force to cause a concussion. Halka estimated the injuries to the head and eye area were a couple days old at the time of death. The upper and lower eyelids on both eyes had widespread abrasions and contusions. Halka concluded Hermosillo had been beaten, stabbed, and choked to death over the course of several days.
A defense expert testified that the levels of methamphetamine detected in Hermosillo’s blood suggested he ingested the drug 12 to 36 hours before his death. The expert explained methamphetamine use reduces appetite and the body’s ability to feel pain. The expert also testified that while the drug may make a person more alert, it also impairs judgment. The expert observed generally that, with methamphetamine use: “There would be impaired cognition, impaired thinking. [T]hey would be more alert to stimuli, but the processing of those stimuli that come in to make judgments and reaction are impaired.”
II DISCUSSION
A. Substantial Evidence Supports the Torture Conviction and Special Circumstance
Defendant challenges the sufficiency of the evidence to support his conviction for torture (§ 206) and to support the torture special circumstance on the murder count (§ 190.2, subd. (a)(18)). Defendant argues that “[a]ssaultive conduct is not ipso facto torture.” He distinguishes his conduct from sadistic activities such as “scraping a knife over skin or repeated pricking of a victim with a knife,” and he notes no evidence showed he bound Hermasillo with ligatures. We are not persuaded.
“Torture focuses upon the mental state of the perpetrator.” (People v. Massie (2006) 142 Cal.App.4th 365, 371.) “The intent with which a person acts is rarely susceptible of direct proof....” (Ibid.) Accordingly, in ascertaining the defendant’s intent, the jury is free to consider the circumstances of the offense, including the number and severity of the victim’s injuries, and the period of time over which they are inflicted. (Ibid.; People v. Hale (1999) 75 Cal.App.4th 94, 106; People v. Kwok (1998) 63 Cal.App.4th 1236, 1245.)
The reviewing court must view the evidence disclosed by the record in the light most favorable to the judgment below. (People v. Elliot (2005) 37 Cal.4th 453, 466.) The test is whether substantial evidence supports the conclusion of the trier of fact, not whether the evidence proves guilt beyond a reasonable doubt. (People v. Crittenden (1994) 9 Cal.4th 83, 139.) We presume in support of the judgment the existence of every fact reasonably inferred from the evidence. (Ibid.) That the circumstances could be reconciled with a contrary finding does not warrant reversal of the judgment. (People v. Bean (1988) 46 Cal.3d 919, 932-933.) Consequently, a defendant attacking the sufficiency of the evidence “bears an enormous burden.” (People v. Sanchez (2003) 113 Cal.App.4th 325, 330.)
“Torture has two elements: ‘(1) the infliction of great bodily injury on another; and (2) the specific intent to cause cruel or extreme pain and suffering for revenge, extortion or persuasion or any sadistic purpose.’” (People v. Burton (2006) 143 Cal.App.4th 447, 451-452 (Burton).) Defendant asserts the kick to Hermosillo’s back was the fatal injury, and argues, based on “Hermosillo’s demeanor” after his beating early on December 22 outside Teves’s house, that “it is probable the fatal injuries occurred on that date.” According to defendant, “Hermosillo did not realize his injuries were serious, and as a consequence, neither did appellant.”
Defendant’s self-serving distortion of the record torpedoes his claim. Halka testified the cause of death was not only blunt force trauma, but also internal bleeding from the stab wound, which occurred several days after December 22. Moreover, based on the lack of inflamed tissue or white blood cells in the area around the back injury, Halka explained the kick to the back was likely inflicted close to the time of death, contrary to defendant’s December 22 timeline. Defendant’s infliction of the rib-breaking kick after stabbing Hermosillo reveals a particularly cruel and sadistic intent to torture his victim.
There is no requirement the perpetrator must bind the victim to constitute torture. The jury reasonably could infer the requisite unlawful intent from the extensive contusions, abrasions, and superficial stab wounds defendant inflicted on Hermosillo — not in a single outburst of rage — but rather through repeated beatings stretching over several days. (People v. Mincey (1992) 2 Cal.4th 408, 428.) Defendant displayed his intent both to torture and to extort funds in the cycle of pain he inflicted on Hermosillo, while extracting funds from family members between beatings. And the fact that defendant refused Burris’s offer to repay him double any indebtedness betrayed a depraved sadism beyond extortion or revenge, and therefore amply demonstrated his intent to torture. (See Burton, supra, 143 Cal.App.4th at pp. 451-452.) In sum, we have no difficulty concluding substantial evidence supports the torture conviction and special circumstance.
B. No Error in Admitting Gang Membership Claim, Tattoos, or Graffiti
Defendant contends the trial court erred by admitting evidence of his claim of gang membership, photographs of his tattoos, and photographs of the motel bed sheets on which he inscribed “Samoan Strong” and other writings. Defendant insists he is not a member of any gang and that admission of the foregoing evidence was more prejudicial than probative under Evidence Code section 352, which he raised below. He also asserts admission of the evidence violated his federal right to due process. Defendant forfeited his constitutional claim by failing to raise it below. (Evid. Code, § 353; see also Marshall v. Lonberger (1983) 459 U.S. 422, 438, fn. 6 [“the Due Process Clause does not permit... finely-tuned review of the wisdom of state evidentiary rules”].) In any event, on the merits, defendant’s attack on the admission of the evidence fails.
The trial court enjoys ample leeway to determine the relevance and admissibility of evidence. (People v. Stitely (2005) 35 Cal.4th 514, 547-548.) No relevant evidence shall be excluded (Cal. Const., art. I, § 28, subd. (d)), unless the trial court determines the evidence is more prejudicial than probative (Evid. Code, § 352). Section 352 confers broad discretion on the trial court to determine whether the probative value of particular evidence is outweighed by concerns of undue prejudice, consumption of time, or confusion of the issues. We may not disturb the trial court’s exercise of its statutory discretion absent a showing the court acted in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124.)
The trial court did not err. The trial court reasonably determined the trier of fact could infer defendant claimed gang membership and raised his shirt, displaying his tattoos, to instill fear in Loomis and Hermosillo. Force or fear is an element of kidnapping, and the evidence was therefore relevant. Defendant asserts “[t]his argument is outlandish, as the incident with Loomis occurred weeks before the charged kidnapping,” but the trial court appropriately observed, “[N]umber one, Loomis could be a little off on his dates. Number two, even if he’s not off on his dates,.... he’s afraid of the defendant. And whether that fear started in December or in November[,] I think is beside the point.... [¶] If this transaction occurred in 1999, it’s a different matter. [But this] is... evidence that the defendant was instilling fear in the victim....” Similarly, the tattoos and the bed sheet writings were relevant to corroborate defendant’s identity and place him at the murder scene in the motel, since none of the motel clerks could identify him. In short, the trial court reasonably concluded the probative value outweighed any prejudicial effect. (People v. Karis (1988) 46 Cal.3d 612, 638 [requisite prejudice under § 352 is “not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence”].)
C. No Voluntary Intoxication Instruction Was Required
Defendant argues the trial court violated his federal right to due process by denying his request for an instruction on voluntary intoxication. (See Judicial Council of Cal. Crim. Jury Instns. CALCRIM No. 625.) Defendant contends the absence of the instruction rendered the trial fundamentally unfair. The trial court, however, is not required to instruct on voluntary intoxication where “the evidence defendant was intoxicated at the time of the crime was ‘at most minimal’ [citation].” (People v. Roldan (2005) 35 Cal.4th 646, 716 (Roldan), disapproved on another point in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)
Here, defendant points to the motel clerk’s testimony his dilated eyes suggested he may have been under the influence of drugs on December 22, and to Burris’s testimony he possessed a glass pipe earlier that evening. But neither this minimal evidence of potential past methamphetamine use, nor that he — in his words — “associated with methamphetamine users and procurers,” “constitute[] substantial evidence he was intoxicated or under the influence at the time of the crime.” (Roldan, supra, 35 Cal.4th at p. 716, original italics.) Defendant relies on Hermosillo’s toxicology report, but the last two eyewitnesses to observe defendant himself on the eve of the murder, McEwen and Burris, discerned no evidence of intoxication. (See ibid. [intoxication of companion insufficient to demonstrate the defendant’s intoxication].)
Indeed, McEwen, who interacted substantially with defendant as he checked in, expressly rejected the notion defendant was under the influence of drugs, discrediting the defense theory he was in the midst of a multi-day methamphetamine binge with Hermosillo. And Burris, who spoke with defendant on the phone later that evening, reported no suspicion defendant was intoxicated when he boasted he had earned a kidnapping charge. Rejecting an instruction premised on defendant’s alleged voluntary intoxication, the trial court reasonably could observe, “I think it’s a matter of just pure speculation whether that’s the case.” Moreover, a voluntary intoxication instruction is not required unless, in addition to substantial evidence the defendant consumed intoxicating substances, “the evidence also shows he became intoxicated to the point he failed to form the requisite intent....” (People v. Ivans (1992) 2 Cal.App.4th 1654, 1661, original italics.) No evidence showed such intoxication; consequently, the trial court did not err in refusing defendant’s instructional request. (Roldan, supra, 35 Cal.4th at p. 716.)
D. Section 654 Did Not Require a Stay of Either the Kidnapping or Murder Sentence
Defendant contends section 654 required the trial court to stay sentencing on either count 3, i.e., the kidnapping for extortion charge (§ 209, subd. (a)), or count 5, charging him with special-circumstance murder committed in the commission of kidnapping (§ 190.2, subd. (a)(17)(B)). The trial court imposed consecutive life in prison without parole sentences on the two counts. The trial court did not violate section 654.
Defendant overlooks that the murder count, in addition to the kidnapping special circumstance, had an alternate special circumstance found true by the jury, namely, torture. (§ 190.2, subd. (a)(18).) Thus, defendant was not punished twice for kidnapping Hermosillo, but rather once for kidnapping him for extortion and once for torture-murder. Nor was he punished twice for the same course of extorting funds or torturing Hermosillo. To the contrary, the trial court did stay under section 654 imposition of sentence on count 1 (extortion), count 2 (vehicle theft), and count 4 (torture).
The court also imposed a determinate term of 13 years comprised of eight years for domestic violence with a prior conviction (count 6), plus five years for the prior serious felony conviction.
As discussed, substantial evidence supported the conclusion defendant not only tortured Hermosillo for purposes of extortion but, in refusing Burris’s offer to pay Hermosillo’s indebtedness, was motivated by an even deeper level of depravity — the sadistic enjoyment of torturing Hermosillo to death. Because the trial court reasonably could discern multiple and independent criminal objectives — extortion and sadistic torture — in defendant’s course of kidnapping and killing Hermosillo, section 654 did not prohibit imposition of consecutive sentences. (See People v. Perez (1979) 23 Cal.3d 545, 551, fn. omitted [“if the evidence discloses that a defendant entertained multiple criminal objectives which were independent of and not merely incidental to each other, he may be punished for the independent violations committed in pursuit of each objective even though the violations were parts of an otherwise indivisible course of conduct”]; accord, People v. Latimer (1993) 5 Cal.4th 1203, 1207-1212.) Consequently, there was no error.
E. Other Issues
Defendant argued in his opening brief that the trial court erred by imposing and suspending a parole revocation fine despite the fact he was sentenced to life in prison without parole. But in his reply brief he concedes the fine was proper under People v. Brasure (2008) 42 Cal.4th 1037, 1075, because his overall sentence included a determinate term.
Finally, as noted at the outset, the Attorney General points out, and defendant agrees, that the abstract of judgment should be corrected to reflect the oral pronouncement of judgment that victim restitution of $1,195.50 in funeral expenses is to be paid to Hermosillo’s brother. (§ 1202.4, subd. (f).)
III
DISPOSITION
We affirm the judgment with directions to the trial court to correct the abstract of judgment to reflect the oral pronouncement of judgment that victim restitution of $1,195.50 in funeral expenses is to be paid to Hermosillo’s brother, Xavier Hermosillo, and to forward the amended abstract of judgment to the Department of Corrections and Rehabilitation.
WE CONCUR: RYLAARSDAM, ACTING P. J., IKOLA, J.