Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of Riverside County. No. INF055740, John J. Ryan, Judge. (Retired judge of the Orange S.Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.).
James M. Crawford, 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, Senior Assistant Attorney General, Andrew Mestman, Supervising Deputy Attorney General, and Lynne G. McGinnis, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
RAMIREZ, P. J.
Defendant Juan Francisco Martinez appeals following a jury trial. He argues there is insufficient evidence to prove his guilt of kidnapping in violation of Penal Code section 207. He also contends the trial court failed to instruct the jury on the lesser included offense of attempted kidnapping, thereby prejudicing his defense.
FACTUAL AND PROCEDURAL BACKGROUND
A jury convicted defendant of kidnapping his live-in girlfriend in violation of Penal Code section 207, subdivision (a) (count 1). However, as to a second alleged victim who did not testify at trial, the jury found defendant was not guilty of assault with a deadly weapon in violation of section 245, subdivision (a)(1) (count 2).
All further statutory references are to the Penal Code unless otherwise stated.
The court’s minute order dated February 22, 2007, incorrectly states that defendant was found not guilty in count 2, violation of section 148, subdivision (a)(1).
After defendant waived his right to a jury trial on prior conviction allegations, the trial court found defendant had one prior offense for making a criminal threat in violation of section 422, which qualified as a strike within the meaning of sections 667, subdivisions (c) and (e)(1), and 1170.12, subdivision (c)(1). The trial court also found defendant served a prison term as a result of the prior offense within the meaning of section 667.5, subdivision (b). As a result of the jury’s verdict on the kidnapping charge, the trial court sentenced defendant to 10 years in prison, consisting of the middle term of five years, doubled as a result of the prior strike. The trial court struck the prior prison term enhancement.
At trial, a police officer testified he responded to a call at a convenience store at approximately 10:40 a.m. on July 21, 2006. He spoke with the victim, who was standing outside the store with her young daughter. However, he had trouble understanding the victim because she spoke Spanish; he waited for a translator to arrive. Through the translator, the victim explained she had a doctor’s appointment that morning and needed a ride. Defendant left the house so she found a ride with someone named Ramon. While they were on the freeway, defendant caught up with them in his vehicle and both vehicles pulled to the side of the road. Defendant got out of his vehicle and approached Ramon’s vehicle on the driver’s side. He punched Ramon in the face and hit Ramon in the torso area with a shovel he had in the back of his truck. He then told the victim to get in his vehicle or he would continue to attack Ramon.
The victim explained she got out of Ramon’s vehicle and into defendant’s vehicle because she was afraid defendant would attack and hurt her. While they traveled in his vehicle, defendant threatened to hit the victim and said “you will see what will happen to you.” When defendant stopped the vehicle at an intersection about 10 minutes later, the victim got out of the vehicle and ran to the convenience store. Defendant followed the victim into the convenience store and told her “let’s go,” but the victim said she did not want to go with him. An employee of the store told a manager to call the police. The manager then dialed 911 to report the incident. Defendant eventually left the store and the victim stayed there until police arrived.
DISCUSSION
I. Sufficiency of the Evidence
Defendant argues there is insufficient evidence to show he used either force or fear to compel the victim to enter and remain in his vehicle without her consent. He also believes the evidence shows the victim exited his vehicle when he pulled into the convenience store because she was angry, not because she had been threatened or was frightened.
“In assessing a claim of insufficiency of evidence, the reviewing court’s task is to review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—that is, evidence that is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” (People v. Rodriguez (1999) 20 Cal.4th 1, 11.) “In deciding the sufficiency of the evidence, a reviewing court resolves neither credibility issues nor evidentiary conflicts. [Citation.] Resolution of conflicts and inconsistencies in the testimony is the exclusive province of the trier of fact.” (People v. Young (2005) 34 Cal.4th 1149, 1181.) “We cannot reject the testimony of a witness that the trier of fact chooses to believe unless the testimony is physically impossible or its falsity is apparent without resorting to inferences or deductions. As part of its task, the trier of fact may believe and accept as true only part of a witness’s testimony and disregard the rest. On appeal, we must accept that part of the testimony which supports the judgment.” (In re Daniel G. (2004) 120 Cal.App.4th 824, 830.)
A person is guilty of kidnapping if he or she “forcibly, or by any other means of instilling fear, steals or takes, or holds . . . any person in this state, and carries the person into . . . another part of the same county. . . .” (§ 207, subd. (a).) “[T]he phrase ‘by any other means of instilling fear’ expands the types of methods by which a person can overcome the free will of his or her victim.” (People v. Moya (1992) 4 Cal.App.4th 912, 916-917.) Thus, “the force used against the victim ‘need not be physical. The movement is forcible where it is accomplished through the giving of orders which the victim feels compelled to obey because he or she fears harm or injury from the accused and such apprehension is not unreasonable under the circumstances.’ [Citations.]” (People v. Majors (2004) 33 Cal.4th 321, 326-327.)
Although the victim testified at trial, she recanted many of the prior statements she made to the responding police officer that were damaging to defendant. First, she stated she did not see defendant punch or hit Ramon with a shovel and denied telling the officer defendant hit Ramon. Second, she denied getting into defendant’s car because she was frightened. Third, she said defendant did not say anything to her or tell her he was angry when they got in his car together, but she “could see that he was.” During cross-examination, she testified she and defendant were both very upset that morning. She answered affirmatively when asked whether defendant “pulled into the [convenience store] because they have a gas station there.”
Even though the victim recanted many of her prior statements, our review of the record discloses sufficient, credible evidence from which the jury could reasonably conclude defendant kidnapped the victim in violation of section 207, subdivision (a). She told the police officer she got out of Ramon’s vehicle and into defendant’s vehicle because she was afraid defendant would continue his attack on Ramon and would also attack and hurt her. When the victim was inside the convenience store, two employees of the store were convinced the circumstances warranted a call to police. Based on this evidence, the jury could reasonably conclude defendant used fear of physical consequences to compel the victim to get into his vehicle.
To support defendant’s argument there is insufficient evidence to support the kidnapping offense, he simply refers to portions of the victim’s testimony that conflict with the statements she made earlier to the police officer who interviewed her shortly after the incident at the convenience store. Essentially, defendant’s argument is that we should reject the police officer’s testimony and only consider the victim’s trial testimony. However, as noted above, we cannot reject the police officer’s testimony because it is apparent the jury found his testimony to be the most credible, and, as a result, resolved any conflicts in the testimony in favor of the prosecution.
Under the circumstances, the jury could reasonably conclude the victim’s statements made to the police officer shortly after the incident were more credible than the victim’s trial testimony. In this regard, we note the prosecutor was able to present evidence impeaching the victim’s recollection of events on the date of the incident to show her trial testimony was biased and not entirely accurate. The victim initially testified the incident was reported to a 911 operator by a convenience store employee, and she did not speak directly with the 911 operator. However, when an excerpt from the 911 tape was played for the jury, the jury was able to hear the victim’s voice on the tape as she spoke with the 911 operator. The victim then admitted it was her voice on the tape. She then recalled telling the 911 operator defendant had gotten out of his vehicle and started an argument with Ramon and had also ordered her to get into his car. She then conceded defendant would have “just gotten more angry” if she stayed in Ramon’s vehicle. The prosecutor also succeeded in showing the victim had a motive to recant her prior statements to the officer. At the time of the incident, the victim was pregnant with defendant’s child. At the time of trial, the victim had a total of six children living at home, two of which were also defendant’s children, a three-year old and an infant. Defendant and the victim were still together. Under these circumstances, and viewing the evidence in the light most favorable to the judgment, we conclude there is reasonable, believable evidence of defendant’s guilt beyond a reasonable doubt.
II. Lesser Included Offense Instruction
Assuming we conclude there was sufficient evidence to support a kidnapping conviction, defendant argues there was also substantial evidence to support a verdict on the lesser included offense of attempted kidnapping. As a result, he contends the trial court had a sua sponte duty to give an appropriate instruction. Defendant believes the evidence shows the victim “thwarted” the kidnapping when she exited his vehicle at the convenience store, and the jury would have found him guilty of the lesser offense of attempted kidnapping if it had been adequately instructed on this offense. Defendant therefore argues his defense was prejudiced when the trial court failed to instruct on the offense of attempted kidnapping.
Although the reason for doing so is unclear from the record, the trial court did instruct the jury on the two lesser included offenses of felony false imprisonment and false imprisonment.
As defendant contends, attempted kidnapping is a lesser included offense of kidnapping. (People v. Martinez (1999) 20 Cal.4th 225, 241.) “A court must instruct sua sponte on general principles of law that are closely and openly connected with the facts presented at trial. [Citations.] This sua sponte obligation extends to lesser included offenses if the evidence ‘raises a question as to whether all of the elements of the charged offense are present and there is evidence that would justify a conviction of such a lesser offense. [Citations.]’ [Citations.] As we stated recently, ‘A criminal defendant is entitled to an instruction on a lesser included offense only if [citation] “there is evidence which, if accepted by the trier of fact, would absolve [the] defendant from guilt of the greater offense” [citation] but not the lesser. [Citations.]’ ” (People v. Lopez (1998) 19 Cal.4th 282, 287-288.)
Generally, to establish a kidnapping has occurred, “ ‘the prosecution must prove three elements: (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.’ ” (People v. Dalerio (2006) 144 Cal.App.4th 775, 781.) “An attempt to commit a crime consists of two elements: a specific intent to commit the crime, and a direct but ineffectual act done toward its commission.” (§ 21a.) “The act must go beyond mere preparation, and it must show that the perpetrator is putting his or her plan into action, but the act need not be the last proximate or ultimate step toward commission of the substantive crime.” (People v. Kipp (1998) 18 Cal.4th 349, 376.) Thus, for the offense of attempted simple kidnapping, the prosecution need not prove the victim was moved for a substantial distance. Rather, the prosecution must show the defendant attempted to move the victim with the requisite specific intent. (People v. Cole (1985) 165 Cal.App.3d 41, 50.) Thus, a defendant may be convicted of attempted kidnapping where the movement of the victim was insufficient to establish a completed kidnapping, such as when the kidnapping was thwarted by the victim’s escape. (People v. Mullins (1992) 6 Cal.App.4th 1216, 1219-1221 (Mullins).)
Defendant contends an attempted kidnapping instruction was warranted because the facts of this case are similar to those in Mullins. We disagree. Although instructional error was not the issue in Mullins, the facts are a good example of circumstances that would warrant an instruction on kidnapping, as well as attempted kidnapping. The defendant in Mullins forced his way into the victim’s vehicle in the parking lot of a shopping center, took control of the steering wheel, and began to drive away with the victim still inside the vehicle. (Mullins, supra, 6 Cal.App.4th at p. 1218.) However, when the vehicle was still in the parking lot, defendant slowed down to make a turn, and the victim was able to escape by jumping out. When the victim escaped, the vehicle had only traveled about 150 feet. (Ibid.) The trial court concluded defendant intended to move the victim much farther than the 150 feet but “was prevented from doing so only by [the victim’s] successful escape.” (Id. at pp. 1220-1221.) Because the trial court concluded the evidence demonstrated the movement of the victim was not a “substantial distance,” it found the defendant guilty of the lesser included offense of attempted kidnapping. (Ibid.)
The defendant in Mullins was convicted of robbery and attempted kidnapping for the purpose of robbery. (Mullins, supra, 6 Cal.App.4th at p. 1217.) However, we have not referred to the robbery because it is not relevant to our analysis.
The appellate court in Mullins concluded the defendant was properly convicted of an attempted kidnapping but noted in dicta it might have come to a different conclusion if it had been the fact finder. (Mullins, supra, 6 Cal.App.4th at p. 1220.) The appellate court suggested the movement of the victim, although short, might be enough to constitute a kidnapping rather than an attempted kidnapping because it was substantial enough to increase the risk of harm to the victim. (Ibid.) Under these circumstances, it would have been important to instruct on both kidnapping and attempted kidnapping, because it was debatable whether the evidence presented was sufficient to satisfy the asportation element of kidnapping. In other words, the evidence raised a question as to whether a conviction on the lesser offense of attempted kidnapping would be justified.
Here, the evidence presented did not raise a question as to whether the asportation element of kidnapping had been satisfied so that a conviction on the lesser included offense of attempted kidnapping might be justified. Rather, the evidence indisputably showed the movement of the victim was substantial. She got into defendant’s vehicle, defendant drove the vehicle, and the victim remained in the vehicle while it was moving for a period of 10 minutes or so. She then got out of the vehicle at an intersection or when the vehicle pulled into the parking lot of the convenience store. The disputed elements of the kidnapping offense were whether defendant used fear to get the victim to enter the vehicle and whether the victim got into the vehicle voluntarily. During closing argument, defense counsel did not argue defendant could only be guilty of attempted kidnapping because the victim got out of the vehicle. Instead, the defense theory of the case was that no crime was committed. Defendant and the victim were merely involved in a domestic dispute at the time in question and both were upset. The victim was upset because defendant was not there when it was time to leave for her doctor’s appointment; defendant was upset because the victim left without him and went with someone he did not like. Defense counsel argued the evidence demonstrated the victim got into defendant’s vehicle voluntarily and then got out at the convenience store because she was angry, not because she was afraid.
Based on the foregoing, there is simply no evidence to justify a conviction on the lesser offense of attempted kidnapping. If the jury believed the evidence indicating defendant did not use force or fear to get the victim into the vehicle and/or evidence suggesting the victim entered the vehicle voluntarily, the appropriate verdict would have been not guilty rather than attempted kidnapping. We therefore conclude the trial court had no obligation to instruct the jury on attempted kidnapping.
DISPOSITION
The Superior Court of Riverside County is directed to amend the minute order dated February 22, 2007, to indicate that defendant was found not guilty in count 2, violation of section 245, subdivision (a). In all other respects, the judgment is affirmed.
We concur: HOLLENHORST, J., KING, J.