Opinion
G056047
10-20-2020
THE PEOPLE, Plaintiff and Respondent, v. CRISTIAN PEREZ, IVAN ALONSO VALENZUELA PEREZ, and CARLOS ARMANDO SIMENTAL Defendants and Appellants.
Allen G. Weinberg, under appointment by the Court of Appeal, for Defendant and Appellant Cristian Perez. Kurt David Hermansen and Siri Shetty, under appointment by the Court of Appeal, for Defendant and Appellant Ivan Alonso Valenzuela Perez. Jason L. Jones, under appointment by the Court of Appeal, for Defendant and Appellant Carlos Armando Simental. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Lynne G. McGinnis, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 11NF2782) OPINION Appeal from a judgment of the Superior Court of Orange County, Michael J. Cassidy, Judge. Affirmed in part, reversed in part, and remanded with directions. Allen G. Weinberg, under appointment by the Court of Appeal, for Defendant and Appellant Cristian Perez. Kurt David Hermansen and Siri Shetty, under appointment by the Court of Appeal, for Defendant and Appellant Ivan Alonso Valenzuela Perez. Jason L. Jones, under appointment by the Court of Appeal, for Defendant and Appellant Carlos Armando Simental. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Lynne G. McGinnis, Deputy Attorneys General, for Plaintiff and Respondent.
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Defendants Cristian Perez, Ivan Alonso Valenzuela Perez, and Carlos Simental were jointly tried and convicted of several offenses: kidnapping F.M. to commit robbery (Pen. Code, § 209, subd. (b)(1); count 4); first degree robbery in concert (§§ 211, 212.5, subd. (a), 213, subd. (a)(1)(A); count 5); kidnapping B.M. (§ 207, subd. (a); count 6); and first degree residential burglary (§§ 459, 460, subd. (a); count 9). Ivan and Simental were also convicted of making criminal threats (§ 422) to F.M. (count 7) and A.M. (count 8). The jury found that during the commission of the kidnapping and robbery offenses in counts 4 and 5, Ivan personally inflicted great bodily injury on F.M. (§ 12022.7, subd. (a)) and personally used a firearm (§ 12022.53, subd. (b)). Ivan was also found to have personally used a firearm in the commission of the criminal threats and burglary offenses in counts 7 through 9. (§ 12022.5, subd. (a).) The jury found Simental personally used a firearm in all the offenses. (§§ 12022.53, subd. (b); 12022.5, subd. (a).)
Because defendants Ivan Valenzuela Perez and Cristian Perez share the same surname, we refer to them by their first names to avoid confusion. No disrespect is intended.
All further statutory references are to the Penal Code unless otherwise stated.
The jury also found defendants guilty of three counts of kidnapping for extortion (counts 1 through 3). (§ 209, subd. (a).) In ruling on defendants' motions for a new trial, the court found the evidence was insufficient to support these convictions and dismissed these counts.
Cristian was sentenced to prison for life for the kidnapping for robbery conviction (count 4) and a consecutive determinate term of 10 years and eight months, which was comprised of nine years for robbery (count 5) and one year and eight months for kidnapping B.M. (count 6). The court imposed a concurrent six-year term for the burglary conviction (count 9).
Ivan was sentenced to prison for an aggregate determinate term of 36 years and eight months consecutive to an indeterminate life term. On count 4, the court imposed a life sentence for the kidnapping for robbery conviction and 13 years for the attending firearm and great bodily injury enhancements. On count 5, Ivan received a nine-year sentence for robbery plus 13 years for the firearm and great bodily injury enhancements on this count. A consecutive term of one year and eight months was imposed for the kidnapping of B.M. in count 6. The court imposed concurrent sentences on the remaining counts.
Simental similarly received a life sentence plus an aggregate determinate term of 34 years. On count 4, the court imposed a life sentence for the kidnapping for robbery conviction and 10 years for the firearm enhancement. Simental received a nine-year sentence for the robbery conviction (count 5) and 10 years for the firearm enhancement on this count. The court imposed a consecutive sentence of one year and eight months for the kidnapping of B.M. (count 6) plus three years and four months for the firearm enhancement. Concurrent terms were imposed on the remaining counts.
On appeal, defendants raise multiple claims attacking their convictions for kidnapping F.M. for robbery (§ 209, subd. (b)(1); count 4) and kidnapping B.M. (§ 207, subd. (a); count 6). They contend the evidence was insufficient to support the asportation element of either kidnapping conviction and that the court committed prejudicial instructional error with its instructions on the asportation element of the kidnapping offenses. Ivan, joined by Cristian and Simental, also asserts the asportation element of aggravated kidnapping in section 209, subdivision (b)(2) is unconstitutionally vague. We affirm defendants' convictions for aggravated kidnapping in count 4 but reverse their convictions for kidnapping B.M. in count 6 for instructional error. We remand for retrial on this kidnapping charge or, alternatively, for resentencing.
Simental, joined by Ivan, raises another instructional error claim, asserting the court erred by failing to instruct the jury with CALCRIM No. 335 that accomplice testimony must be corroborated and cautiously viewed. We agree the failure to give this instruction was error but conclude it was harmless.
Defendants also raise several sentencing issues. All three defendants contend their sentences for robbery (count 5) and burglary (count 9) must be stayed under section 654, and Ivan and Simental assert their sentences for making a criminal threat to F.M. (count 7) should be stayed under section 654. The Attorney General concedes defendants cannot be punished for both kidnapping for the purpose of robbery and robbery and that the sentences for robbery must be stayed under section 654. We agree. We remand the matter for resentencing and direct the trial court to stay defendants' sentences for robbery and Cristian's sentence for burglary. However, we uphold the trial court's imposition of concurrent terms on Ivan and Simental's convictions for making a criminal threat and burglary.
In a supplemental opening brief, Simental, a veteran, seeks resentencing because the record does not reflect the court considered his service-related illness as a mitigating factor at his sentencing hearing, as required by section 1170.91, subdivision (a). As we are remanding the matter for resentencing, we direct the trial court to comply with section 1170.91 at the resentencing hearing. Last, we direct the trial court to correct two clerical errors Cristian has identified in his abstract of judgment.
FACTS
F.M., a drug dealer, lived in a house in Anaheim with his wife, K.P., their three daughters, ten-year-old B.M., seven-year-old J.M., and a nine-month-old infant, his two sisters, A.M. and M.M., and his cousin's wife, X., and her two children.
Knowledge of F.M.'s involvement in the drug trade apparently extended to Idaho, where Ivan and his brother Oscar Valenzuela lived and then to Washington, where their cousin, Cristian, and friend, Simental, lived. The four men flew to California in September 2011, with a plan to go to F.M.'s home and rob him of his drugs and money. In preparation, they bought gloves, masks, and a tool to ram open F.M.'s front door.
For clarity, we will also refer to Oscar Valenzuela by his first name to avoid confusion with his brother Ivan Valenzuela Perez, who is often referenced in the record by his paternal surname Valenzuela. Again, no disrespect is intended.
Oscar was originally a codefendant in this case, but prior to trial, he pleaded guilty to offenses arising out of this incident (residential burglary, robbery, and two counts of kidnapping) and agreed to testify at trial in exchange for an eight-year sentence.
They arrived at F.M.'s house around 3:00 a.m. on September 13, 2011. All four men were wearing black or dark colored clothing and carrying weapons. Oscar, Ivan, and Simental had AR-15 rifles; Cristian had a handgun. After breaching the front door, they entered the house and yelled that they were the police. They began searching the bedrooms with the intent of putting all of the home's occupants into one bedroom.
F.M. and K.P. were asleep in the master bedroom with their nine-month-old daughter. B.M. and J.M. were asleep in the next bedroom, and A.M. was asleep in her bedroom. X. and her two children were in the living room, which had been converted into a bedroom for them.
F.M. and K.P. awoke to see two masked men carrying rifles enter their bedroom. Instinctively, K.P. jumped up. One of the men pushed her back down and told her not to get up and not to look at them. When she again tried to get up, he threatened to hit her with his firearm. K.P. laid face down on the bed, holding her baby. A man bound her legs with a zip tie. F.M. was also positioned face down on the bed, and his wrists and ankles were bound with zip ties. He could feel a rifle pressed against the back of his head.
None of the victims were able to identify the assailants because the intruders were wearing masks. For the most part, they were unable to differentiate between the intruders. Oscar, however, testified as to his own actions and the role each defendant played during the home invasion.
One of the men knocked on the door to B.M.'s bedroom, waking her up. She saw two men at the door dressed in black and wearing masks. One of them told her and her sister to get up. B.M. did not understand what was happening and followed them as they went to A.M.'s bedroom.
A.M. was asleep in her bedroom. Oscar grabbed her leg, pulling her off her bed and onto the floor. She screamed and he hit her in the face with the butt of his rifle. He ordered her to get up and led her to F.M.'s bedroom at gun point, as B.M. walked with them. In F.M.'s bedroom, both A.M. and B.M. were instructed to look down and not at the intruders. Simental told B.M. and her sister J.M. to get in the closet because it was not safe for them to be in the room.
Ivan told F.M. that they knew he had drugs and money, and he demanded F.M. hand them over. As incentive to quickly comply with their demands, Ivan hit F.M. in the back of the head with a rifle. A.M. started crying and pleaded with them not to hurt her brother. Ivan responded by hitting her with his rifle and telling her to be quiet. A.M. was moved to the floor, and as she was lying face down, her hands were zip tied behind her back. A.M. could not see what was happening but heard her brother being hit and heard one of the men, who Oscar identified as Ivan, demanding to know where the money and drugs were.
F.M. had four and one-half pounds of methamphetamine in an ice chest in his bedroom and told them to take it. Oscar took the ice chest and gave it to Cristian, who put it in their vehicle. The methamphetamine was worth about $6,000 or $7,000. But this was not enough for them. Ivan demanded more. Ivan continued to beat F.M. and threaten his family. Using the butt of his rifle, Ivan struck F.M. in the head a few times. F.M. was also hit in the face. As punishment for looking at them, F.M. was stabbed above and below his eye. Believing F.M. had more drugs and money in the house, Ivan threatened to kill F.M. and to slit the throat of one of his daughters if he did not hand over the rest.
From inside the closet, B.M. could hear "a mean man" with a "really loud" voice asking her father for money, and she could hear her father screaming. She also heard them tell her father that if he did not tell them where the money was, they would cut off the head of someone in his family.
Eventually, F.M. told them he had cocaine hidden in the white truck parked in the driveway and he would show them where it was. Ivan called Oscar, who had been searching the house, back to the bedroom. They cut F.M.'s zip ties and walked him to the garage. Because there was no access to the garage from inside the house, Ivan and Oscar walked F.M. out of the house through a backdoor, into the enclosed backyard, and around the side of the house to a door leading into the garage. After entering the garage, F.M. opened the main garage door. Ivan pulled F.M.'s truck into the garage while Oscar stayed with F.M. Once the truck was inside, they closed the garage door and told F.M. to get the drugs out of the truck quickly or they would kill him. F.M. retrieved a kilo of cocaine worth about $36,000 from a secret compartment in the truck and gave it to them.
While Ivan and Oscar took F.M. to the garage, Simental remained in the bedroom with F.M.'s family. After A.M. told him that the zip tie on her wrists was too tight and cutting her skin, he removed the zip tie and replaced it with a looser one. Simental told A.M. and K.P. that they should tell him if they knew anything and that no one was going to die. He opened the closet door and checked on the girls, telling them it was going to be okay and that they would be going to school tomorrow. Simental also told the girls to hide behind the clothes.
Ivan and Oscar walked F.M. back to the bedroom, where Oscar retied F.M.'s wrists with a zip tie. Ivan told F.M. they knew he had more drugs. He continued beating F.M. and demanding he give them money and the rest of his drug supply. When F.M. did not offer up anything else, Ivan threatened to cut off F.M.'s ear and started to do so. Both of F.M.'s ears were cut. A.M. could feel F.M.'s blood splash on her back as they were cutting him. When F.M. denied having anything else, Ivan threatened to assault A.M. if F.M. did not tell him where the rest of the drugs were. F.M. heard one of the men say "bring the condoms" and that they were going to rape the women because he was not giving them the drugs. Ivan leaned down to A.M., told her that she was brave and pretty, and cut the back of her shirt and bra strap. One of the men told F.M. they were going to take him with them, kill him, and dump his body. He was dragged out of the bedroom by his hands. They let go of him at the door and then dragged him back to the bedroom by his foot.
After terrorizing F.M. and his family for 30 minutes or more and obtaining the methamphetamine, cocaine, and a handgun F.M. had next to his bed, the four men decided to leave. Before leaving, they poured something on A.M. and the rest of the family. Ivan said it was gasoline and they were going to burn them, but A.M. saw the liquid was white and knew it was not gasoline. As they were leaving, the men told the family they would kill them if they talked to the police.
Ivan spotted a police car outside as he was about to exit through the front door. X. had called the police after she escaped with her daughters, as the intruders had not discovered them during their initial search of the house. Ivan and Oscar ran out the back door. Oscar jumped over fences and walls as he ran through neighboring backyards. Along the way, he discarded his rifle, gloves, and mask. He ended up behind a nearby business where he saw Simental. They hid in dumpsters in the alley until it was safe to reemerge and then went to an apartment complex, where they called for a taxi to pick them up.
After the intruders left, A.M. slipped out of her zip tie and retrieved a knife from the kitchen, which she used to cut the zip ties off F.M. and K.P. F.M. was taken to the hospital, where he was treated for injuries to his face, ears, and head. In his initial statements to the police, F.M. lied and told them that the men were looking for his cousin, who was involved with drugs. He later admitted to the police that the drugs were his.
About three hours after the home invasion, a police officer saw Ivan sitting on a nearby bus bench. He was wearing clothing consistent with the description of that of the intruders, and he was looking around nervously. When arrested, he had dried blood on his hands, which testing indicated was F.M.'s blood. Cristian and Simental were arrested later that day. Two loaded rifles and gloves were found in the yards of homes near F.M.'s house.
DISCUSSION
SUFFICIENCY OF THE EVIDENCE CLAIMS
Defendants contend the evidence was insufficient to support their convictions for kidnapping F.M. for the purpose of robbery (§ 209, subd. (b)(1); count 4) or for kidnapping B.M. (§ 207, subd. (a); count 6). More specifically, they assert the evidence was insufficient to prove the asportation elements in both kidnapping convictions. We disagree.
"'In reviewing a challenge to the sufficiency of the evidence, we do not determine the facts ourselves. Rather, we "examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—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." [Citations.] We presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.'" (People v. Houston (2012) 54 Cal.4th 1186, 1215.) Sufficient Evidence Supports Defendants' Convictions for Kidnapping F.M. to Commit Robbery
Defendants Ivan and Cristian contend their convictions for kidnapping F.M. for the purpose of robbery (§ 209, subd. (b)(1); count 4) must be reversed because the evidence was insufficient to prove the asportation element of the offense. Simental joins this argument and further asserts the trial court erred by denying his section 1118.1 motion, in which he argued the prosecution had failed to prove the asportation element because the movement of F.M. was incidental to the robbery. We apply the same standard in reviewing Simental's argument that the court should have granted his section 1118.1 motion that we do in reviewing Ivan and Cristian's challenge to the sufficiency of the evidence. (People v. Houston, supra, 54 Cal.4th at p. 1215.) After reviewing the record, we conclude the evidence was sufficient to support defendants' convictions for kidnapping F.M. for the purpose of robbery.
1. Applicable Law
Section 209, subdivision (b), often referred to as "[a]ggravated kidnapping," is kidnapping "for the purpose of robbery or certain sex offenses." (People v. Martinez (1999) 20 Cal.4th 225, 232 (Martinez), overruled on other grounds in People v. Fontenot (2019) 8 Cal.5th 57, 70.) Defendants' claim of insufficient evidence concerns the asportation element of aggravated kidnapping, which "has two prongs: '. . . movement of the victim [(1)] that is not merely incidental to the commission of the underlying crime and [(2)] that increases the risk of harm to the victim over and above that necessarily present in the underlying crime itself.'" (People v. Bell (2009) 179 Cal.App.4th 428, 436 (Bell).)
Discussing these prongs of the asportation element, our Supreme Court has explained: "With regard to the first prong, the jury considers the 'scope and nature' of the movement, which includes the actual distance a victim is moved. [Citations.] There is, however, no minimum distance a defendant must move a victim to satisfy the first prong. [Citations.] [¶] '"The second prong . . . refers to whether the movement subjects the victim to a substantial increase in risk of harm above and beyond that inherent in [the underlying crime]. [Citations.] This includes consideration of such factors as the decreased likelihood of detection, the danger inherent in a victim's foreseeable attempts to escape, and the attacker's enhanced opportunity to commit additional crimes. [Citations.] The fact that these dangers do not in fact materialize does not, of course, mean that the risk of harm was not increased."'" (People v. Vines (2011) 51 Cal.4th 830, 870 (Vines), overruled on another ground in People v. Hardy (2018) 5 Cal.5th 56, 104.) These two prongs of the asportation element "'are not distinct, but interrelated, because a trier of fact cannot consider the significance of the victim's changed environment without also considering whether that change resulted in an increase in the risk of harm to the victim.'" (Bell, supra, 179 Cal.App.4th at p. 436.)
The Legislature amended section 209 in 1997, eliminating the qualification that the movement substantially increase risk of harm to the victim. (Martinez, supra, 20 Cal.4th at p. 232, fn. 4.) In Vines, the Supreme Court analyzed whether the movement of the victims substantially increased their risk of harm because the kidnapping offenses occurred prior to this amendment. (Vines, supra, 51 Cal.4th at p. 869, fn. 20.)
The Supreme Court has explained that in analyzing whether the asportation element has been proved, "the jury must 'consider[] the "scope and nature" of the movement,' as well as 'the context of the environment in which the movement occurred.'" (People v. Dominguez (2006) 39 Cal.4th 1141, 1151.) In Dominguez, the Supreme Court indicated that "[i]n some cases a shorter distance may suffice in the presence of other factors, while in others a longer distance, in the absence of other circumstances, may be found insufficient." (Id. at p. 1152.) The high court then offered examples: "moving robbery victims between six and 30 feet within their home or apartment [citation] or 15 feet from the teller area of a bank to its vault [citation] may be viewed as merely incidental to the commission of the robbery and thus insufficient to satisfy the asportation requirement of aggravated kidnapping. Yet, dragging a store clerk nine feet from the front counter of a store to a small back room for the purpose of raping her [citation] or forcibly moving a robbery victim 40 feet within a parking lot into a car [citation] might, under the circumstances, substantially increase the risk of harm to the victim and thus satisfy the asportation requirement." (Ibid.) The court emphasized that "each case must be considered in the context of the totality of its circumstances." (Ibid.)
2. The Evidence is Sufficient to Support the Asportation Element
Defendants contend their aggravated kidnapping convictions must be reversed because the evidence was insufficient to prove both prongs of the offense's asportation element. As to the first prong, defendants assert F.M.'s movement was "brief" or "insignificant" and incidental to the robbery. Defendants focus on the fact that the movement of F.M. was within the residential premises, and they argue the movement was necessary for the robbery. As to the second prong, defendants Ivan and Cristian assert the movement did not increase the risk of harm to F.M. We disagree and conclude the evidence is sufficient to prove both prongs of the asportation element.
To assess defendants' claims of insufficient evidence, we begin with People v. Daniels (1969) 71 Cal.2d 1119 (Daniels), a seminal case on the asportation element of aggravated kidnapping. In Daniels, the Supreme Court found the defendants' conduct of forcing three women to move about their residences for distances of 5 or 6 feet, 18 feet, and 30 feet, in the course of robbing and raping them, was insufficient to support their convictions for aggravated kidnapping. (Id. at pp. 1126, 1140.) The Supreme Court concluded these movements "were merely incidental to [the] crime and did not substantially increase the risk of harm otherwise present." (Id. at p. 1140.)
Defendants Simental and Cristian rely on Daniels in arguing that the movement of F.M. within the residence was incidental to the robbery. They quote the following passage from Daniels: "[W]hen in the course of a robbery a defendant does no more than move his victim around inside the premises in which he finds him — whether it be a residence, as here, or a place of business or other enclosure — his conduct generally will not be deemed to constitute the offense proscribed by section 209." (71 Cal.2d at p. 1140.) Cristian asserts "the Daniels rule [is] that movement within a premises is not kidnapping for robbery" and that since Daniels, "courts have taken an expansive view of 'premises.'" To support his position, he cites several cases where appellate courts have reversed aggravated kidnapping convictions when the victims were moved only within the residential or business premises. Simental similarly states that "moving a victim around a residential premise during a robbery is not a substantial movement sufficient to constitute kidnapping."
Defendants Cristian and Simental view Daniels as establishing an absolute rule when it did not. Daniels did not establish a rule that movement within the premises can never support an aggravated kidnapping conviction. Shortly after Daniels was decided, the Supreme Court clarified "there may be circumstances in which a robber can properly be convicted of kidnapping even though he does not take his victim outside the premises in question." (People v. Timmons (1971) 4 Cal.3d 411, 415 (Timmons).) As it has been explained more recently, "[t]here is no rigid 'indoor-outdoor' rule by which moving a victim inside the premises in which he is found is never sufficient asportation for kidnapping for robbery while moving a victim from inside to outside (or the reverse) is always sufficient." (People v. James (2007) 148 Cal.App.4th 446, 456.) Instead, the totality of the circumstances must be considered, including "'the "scope and nature" of the movement,' as well as 'the context of the environment in which the movement occurred.'" (Dominguez, supra, 39 Cal.4th at p. 1151.) If moving the victim to a different location on the premises changes the victim's environment and increases the risk of harm to the victim, then the movement is substantial and the asportation element has been proved. (See People v. Robertson (2012) 208 Cal.App.4th 965, 984 [concluding "movement of the victim from the back of the garage by a door to the front of the garage next to a large tub of water, was not merely incidental and increased the victim's risk of physical and psychological harm above the risk inherent in the crime of rape"].)
In this case, the distance F.M. was moved was beyond that merely incidental to the robbery and increased the risk of physical and psychological harm to him above that present in the robbery. The evidence at trial showed Ivan and Oscar took F.M. at gun point from his bedroom, down the hallway and out a back door, into a secluded backyard with six-foot high walls, and then around the side of the house and into the garage. Once in the garage, F.M. opened the main garage door. Ivan drove F.M.'s truck into the garage and defendants closed the door, isolating F.M. from his family and public view. They told him that he had five seconds to retrieve the drugs from the truck or they would kill him. After F.M. obtained the cocaine from the truck's hidden compartment, Ivan and Oscar marched him back to the bedroom and replaced the zip ties on his wrists. They demanded more drugs or money from him. Before leaving, they dragged F.M. out of his bedroom to the door, telling him that they were going to take him with them and kill him. They then dragged him back to the bedroom by his foot.
As the cocaine was in a hidden compartment in the truck, it was necessary for defendants to move F.M. to the truck for him to retrieve the drugs for them. It is questionable though whether it was necessary for them to move him into the closed garage as he could have obtained the drugs from the truck when it was parked in the driveway. However, once F.M. obtained the cocaine from the truck in the garage, no further movement was necessary. The movement from the garage back to the bedroom and then later dragging him from the bedroom to the door and back was unnecessary to facilitate a robbery. (See People v. Leavel (2012) 203 Cal.App.4th 823, 835 [concluding the defendant's movement of the victim "from the kitchen to her bedroom was unnecessary to facilitate a robbery" because he had already taken her property and once in the bedroom he did not require her assistance before he took more property].) A reasonable jury could find the movement of F.M. was not merely incidental to the robbery.
Ivan and Cristian contend the movement of F.M. did not increase the risk of physical or psychological harm to him, and therefore, the asportation element was not proved. After reviewing the record, we conclude a reasonable jury could have found the movement of F.M. increased the risk of either physical or psychological harm to him beyond that inherent in the robbery. While the movement of F.M. from his bedroom to the closed garage did not decrease the likelihood of detection or increase the inherent danger of a foreseeable escape attempt, it did enhance defendants' opportunity to commit additional crimes against F.M. When defendants first began assaulting F.M. in his bedroom, A.M. tried to intervene and pleaded with them not to hurt her brother. But in the garage, F.M. was separated from his family and alone with Ivan and Oscar, both of whom had rifles. There was no one to intervene should Ivan and Oscar attempt to mortally wound F.M. Away from F.M.'s family, Oscar or Ivan could have further injured or shot F.M. without any witnesses as to what happened. "'"The fact that these dangers [did] not in fact materialize does not, of course, mean that the risk of harm was not increased."'" (Vines, supra, 51 Cal.4th at p. 870.)
Moreover, there was an increased risk of psychological harm to F.M. when defendants moved him to the garage and later dragged him out of the bedroom to the door and back. (People v. Nguyen (2000) 22 Cal.4th 872, 885-886 [the asportation element of aggravated kidnapping can be satisfied by an increased risk of either physical or psychological harm].) While in the garage, F.M. was separated from his wife, three young daughters, and sister, knowing that at least one of the armed intruders stayed behind with them. During this time, he did not know what was happening to his family and was unable to protect them. Dragging F.M. to the door at the end of the incident, while telling him that they were going to take him and kill him, increased the risk of psychological harm to him above that inherent in the robbery.
In finding the evidence sufficient to support defendants' convictions for kidnapping for the purpose of robbery, we find instructive the Supreme Court's decision in Vines, supra, 51 Cal.4th 830. There, the court found sufficient evidence of asportation, supporting the defendant's aggravated kidnapping convictions, even though the defendant only moved the victims inside the premises of a restaurant. (Id. at pp. 870-871.) The Vines court concluded "'the scope and nature'" of the defendant's movement of the victims "from the front of the store, down a hidden stairway, and into a locked freezer" was not "'merely incidental' to the commission of the robbery" and that "the movement subjected the victims to a substantially increased risk of harm." (Id. at p. 871.) Similarly here, the movement of F.M. about the premises was not merely incidental to the robbery and it subjected him to an increased risk of physical and psychological harm.
None of the cases cited by defendants persuade us that their aggravated kidnapping convictions must be reversed. Although this case is similar to Daniels, supra, 71 Cal.2d 1119, in that the forced movement of F.M. was in and around the residence, "the scope and nature" of this movement was substantially different and increased the risk of both physical and psychological harm to him by separating him from his family during a violent situation.
We similarly find distinguishable People v. John (1983) 149 Cal.App.3d 798, a case upon which Simental and Cristian rely heavily. In John, during the course of a robbery, the victim was forced to move about the property owned by his parents, including from the pool house where he lived to the separate main house where his parents lived. (Id. at pp. 802-803.) The Court of Appeal concluded the movement of the victim was "well within the Daniels rule because [the victim] was never forced to move outside of the interconnected living quarters shared by him and his parents." (Id. at p. 805.) The John court further found the movement did not substantially increase the risk of harm to the victim because he was not moved from the premises and was not subjected to physical violence. (Id. at p. 806.) Here, we find a key distinction—F.M. was subjected to physical violence and emotional trauma when he was forcibly moved from the bedroom and separated from this family.
Accordingly, we conclude there was sufficient evidence of asportation and affirm defendants' convictions for kidnapping F.M. for the purpose of robbery. Substantial Evidence Supports Defendants' Convictions for Kidnapping B.M.
Ivan contends his conviction for kidnapping B.M. (§ 207, subd. (a); count 6) must be reversed because the evidence was insufficient to establish the asportation element of the offense. Cristian and Simental join this argument, asserting the movement of B.M. from her bedroom into the closet in her parents' bedroom was not substantial because it was a short distance, entirely within the residence, and for sole purpose of committing the robbery. We conclude the evidence was sufficient to support defendants' convictions for kidnapping B.M. in count 6.
Defendants were convicted of the "simple kidnapping" of B.M. in violation of section 207, subdivision (a), which requires the prosecution "'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.'" (Bell, supra, 179 Cal.App.4th at p. 435.) "This last element, i.e., that the victim be moved a substantial distance, is called the 'asportation' element." (Ibid.) "Both simple kidnapping and aggravated kidnapping (except kidnapping for ransom or extortion) have an asportation element. [Citation.] But the standard for proving the asportation element of simple kidnapping is not the same as that for aggravated kidnapping." (Ibid.)
With its decision in 1999 in Martinez, supra, 20 Cal.4th 225, the California Supreme Court overruled prior case law that had focused exclusively on the actual distance the victim was moved in "determining whether the evidence showed asportation for purposes of simple kidnapping." (Bell, supra, 179 Cal.App.4th at p. 436.) "Martinez established a new asportation standard for simple kidnapping—one that took into account 'the "scope and nature" of the movement . . . , and any increased risk of harm'—thereby bringing the standard closer to the one for aggravated kidnapping. [Citation.] Martinez required a jury to 'consider the totality of the circumstances' in deciding whether a victim's movement is substantial. [Citation.] 'Thus, in a case where the evidence permitted, the jury might properly 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.) Martinez also indicated that "in a case involving an associated crime, the jury should be instructed to consider whether the distance a victim was moved was incidental to the commission of that crime in determining the movement's substantiality." (Martinez, supra, 20 Cal.4th at p. 237.) Thus, in determining whether "the victim was moved a distance that was 'substantial in character,'" the jury can consider these contextual factors based on the evidence presented. (Ibid.) But Martinez emphasized the "contextual factors, whether singly or in combination, will not suffice to establish asportation if the movement is only a very short distance." (Ibid.)
Defendants predominantly focus on the distance and location of B.M.'s movement. They assert B.M. was moved a "short" distance within the house, and therefore, the evidence was insufficient to prove she was moved a substantial distance as required by Martinez. Although the measured distance B.M. was moved is just one factor the jury was told to consider in determining whether she was moved a substantial distance, we begin with it.
The court instructed the jury with CALCRIM No. 1215, the standard instruction on simple kidnapping. Consistent with Martinez, supra, 20 Cal.4th at p. 237, the instruction told the jury that: "Substantial distance means more than a slight or trivial distance. In deciding whether the distance was substantial, you must consider all the circumstances relating to the movement. [Thus, in addition to considering the actual distance moved, you may also consider other factors such as [whether the distance the other person was moved was beyond that merely incidental to the commission of __________ <insert associated crime>], whether the movement increased the risk of [physical or psychological] harm, increased the danger of a foreseeable escape attempt, or gave the attacker a greater opportunity to commit additional crimes, or decreased the likelihood of detection.]"
The record lacks an exact measurement of the distance B.M. was moved. During the trial, the prosecution did not present evidence as to the actual, total distance B.M. was moved from her bedroom to A.M.'s bedroom and then to the closet in her parents' bedroom. The evidence did indicate that B.M.'s bedroom was down a hallway and near F.M.'s bedroom, the master bedroom. The record also shows the hallway leading to the master bedroom from the front door was about 50 feet and it was a one-story house. Thus, we can deduce B.M. was moved a distance less than 50 feet. We cannot say, categorically, that this distance was slight or trivial. (See People v. Delacerda (2015) 236 Cal.App.4th 282, 294-295 [distance victim was dragged from the front door to the bedroom closet, an actual distance between 22 and 40 feet, "was neither slight nor trivial" (id. at p. 295)].)
Moreover, when the totality of the circumstances is considered, the distance B.M. was moved was "'substantial in character.'" (Martinez, supra, 20 Cal.4th at p. 237.) A reasonable jury could have concluded the risk of physical and psychological harm to B.M. was increased by defendants taking the 10-year-old girl out of her bedroom and marching her into her parents' bedroom at gunpoint, where her parents and aunt were bound and her father was repeatedly threatened and assaulted with fists, a knife, and a gun. Moving B.M. closer to the violence being perpetrated upon her father increased the risk of psychological harm to her. Although she was placed in the closet and did not see what was happening, she heard her father screaming and heard the men demanding money from her father. She also heard the threat that they would cut off the head of someone in her family if her father did not tell them where the money was. While in the closet, she was terrified and praying. There is no doubt moving B.M. into her parents' bedroom where the events transpired over 30 minutes caused "psychological trauma to [her] beyond that to be expected from a stationary robbery." (People v. Nguyen, supra, 22 Cal.4th at p. 886.)
The movement of B.M. out of her bedroom into her parents' bedroom not only increased the risk of psychological trauma to her but also increased the risk of physical harm to her as there was a greater chance she would be harmed by defendants as they tried to convince her father to give them his drugs and money. There was a threat of imminent harm to B.M. once she was placed in the bedroom where her father was being brutally beaten. One of the defendants threatened to pull B.M. or her sister out of the closet and cut off the girl's head or slit her throat if F.M. did not give them more drugs or money. An increased risk of harm to B.M. was manifested by the violence defendants perpetrated upon her father and their threats of extreme violence against B.M. and her sister. (See People v. Jones (1999) 75 Cal.App.4th 616, 630 [finding substantial evidence to support the asportation element of kidnapping for robbery where "[a]n increased risk of harm was manifested by [the defendant's] demonstrated willingness to be violent"].) Moving B.M. into the closet in her parents' bedroom increased defendants' ability to commit additional crimes against her and increased the danger inherent in any escape attempt as there were two men in the room with assault rifles. The forced movement of B.M. into the closet also decreased the likelihood of detection as any screams for help were unlikely to be heard.
Defendants contend B.M. was moved solely for the purpose of robbing F.M., and therefore, she was not moved a substantial distance. We disagree. A reasonable jury could have concluded the movement of B.M. from her room into her parents' bedroom was not merely incidental to the commission of the robbery offense. They moved B.M. to her parents' bedroom because they wanted all the house's occupants in one room to prevent them from fleeing and contacting the police. But it was not necessary for defendants to move B.M. from her bedroom to perpetrate the robbery. They could have allowed the young girl to remain in her room.
Under the totality of the circumstances, a reasonable jury could have found defendants moved B.M. a substantial distance, satisfying the asportation element. The cases defendants rely upon do not require a contrary conclusion. In arguing their convictions for simple kidnapping should be reversed for insufficient evidence, defendants attempt to analogize their case to Daniels, supra, 71 Cal.2d 1119 and People v. Perkins (2016) 5 Cal.App.5th 454. As discussed ante, in Daniels, the Supreme Court reversed the defendants aggravating kidnapping convictions where the victims had been briefly moved inside their residences in furtherance of the robberies and the movements "did not substantially increase the risk of harm otherwise present." (Daniels, at p. 1140.) Similarly, in Perkins, the Court of Appeal reversed the defendant's sentencing enhancements for kidnapping (§ 667.61, subd. (e)(1)) and aggravated kidnapping (id., subd. (d)(2)), where the defendant ordered the victim to move "a short distance inside a small private residence from one room to another" and the movement did not substantially increase the risk of harm to her. (Perkins, at p. 470.)
Daniels and Perkins are readily distinguishable. First, we note that in both cases, the defendants were charged with aggravated kidnapping or an aggravated kidnapping enhancement that required proof the movement of the victim substantially increased the risk of harm. (Daniels, supra, 71 Cal.2d at p. 1140; Perkins, supra, 5 Cal.App.5th at p. 471.) Here, we are dealing with simple kidnapping, which does not require such a showing. (Martinez, supra, 20 Cal.4th at p. 237.) In a simple kidnapping case, although a jury "may consider a victim's increased risk of harm, it may convict . . . without finding an increase in harm." (Ibid.) Second, here, there was substantial evidence that the movement of B.M. from her bedroom to the master bedroom did increase the risk of both psychological and physical harm to her beyond that which existed prior to the movement.
Defendants' reliance on People v. Williams (2017) 7 Cal.App.5th 644 is also misplaced. In Williams, the defendants moved employees of a store from the front to the back of the store, a distance about 50 feet, and then took one employee to the vault room and ordered him to open the safes, before taking him back to the break room. (Id. at p. 671.) The Court of Appeal reversed the defendants' simple kidnapping convictions because this movement "was merely incidental to the robbery, and was therefore not substantial." (Id. at p. 672.) The Williams court did not address any of the other contextual factors Martinez, supra, 20 Cal.4th at page 237 indicated could be considered by a jury in determining whether the victim's movement was substantial in character. (Williams, at pp. 671-672.) Under the totality of the circumstances in this case, a reasonable jury could find the movement of B.M. from her bedroom to the closet in her parent's bedroom was substantial and not merely incidental to the robbery of her father.
Accordingly, we conclude the evidence was sufficient to support defendants' convictions for kidnapping B.M. in count 6. THE ASPORTATION ELEMENT OF AGGRAVATED KIDNAPPING IS NOT UNCONSTITUTIONALLY VAGUE
Relying on Johnson v. United States (2015) 576 U.S. 591 (Johnson) and Sessions v. Dimaya (2018) 584 U.S. ___ (Dimaya), defendants contend the asportation element of aggravated kidnapping in section 209, subdivision (b)(2), is unconstitutionally vague and their convictions for kidnapping for robbery must be vacated. We reject this contention, agreeing with our Division One colleagues in People v. Ledesma (2017) 14 Cal.App.5th 830 (Ledesma) that California's aggravated kidnapping statute is not unconstitutionally vague. (Id. at pp. 838-839.)
A penal statute is unconstitutionally void because of vagueness if it fails to "define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement." (Kolender v. Lawson (1983) 461 U.S. 352, 357; accord, People v. Heitzman (1994) 9 Cal.4th 189, 199.)
To reiterate, section 209, subdivision (b)(2), explains an aggravated kidnapping occurs only "if the movement of the victim [1] is beyond that merely incidental to the commission of, and [2] increases the risk of harm to the victim over and above that necessarily present in, the intended underlying offense." Defendants contend this language is fundamentally flawed in two respects and these flaws, individually and collectively, render the asportation element in section 209, subdivision (b)(2), unconstitutionally vague. First, they assert the increased risk of harm element is unconstitutionally vague because it requires the fact finder to measure the risk against a hypothetical, ordinary robbery, "injecting indeterminacy into the risk-of-harm inuiry." Second, they contend "efforts to define 'more than incidental movement' have fractured the appellate courts," and the resulting split of authority among the Courts of Appeal proves the statute's construction and application are inconsistent and arbitrary.
Defendants' argument was rejected in Ledesma, supra, 14 Cal.App.5th 830, where the defendant was convicted of kidnapping to commit rape. (Id. at p. 832.) There, the defendant similarly argued the asportation element in section 209, subdivision (b)(2), was unconstitutionally vague under Johnson, supra, 576 U.S. 591. (Ledesma, at p. 835.) In Johnson, the United States Supreme Court held the "residual clause" of the Armed Career Criminal Act of 1984 (ACCA), which defined a "violent felony" as an offense involving "'conduct that presents a serious potential risk of physical injury to another'" (Johnson, at p. 593), was unconstitutionally vague. (Id. at p. 597.) Explaining its reasoning, the Johnson court noted it had previously held the ACCA requires trial courts use a "categorical approach" when determining whether an offense qualified as a violent felony under the ACCA. (Johnson, at p. 596.) This categorical approach required judges "to disregard how the defendant actually committed his crime. Instead, they were required to imagine the idealized '"ordinary case"' of the defendant's crime and then guess whether a '"serious potential risk of physical injury to another"' would attend its commission." (United States v. Davis (2019) ___ U.S. ___ [139 S.Ct. 2319, 2326] (Davis).)
In Johnson, the United States Supreme Court explained that two features of the ACCA's residual clause conspired to render it unconstitutionally vague. (Johnson, supra, 576 U.S. at p. 597.) The first was that the clause left "grave uncertainty about how to estimate the risk posed by a crime" because it tied "the judicial assessment of risk to a judicially imagined 'ordinary case' of a crime, not to real-world facts or statutory elements." (Ibid.) The second problematic feature was that it created uncertainty as to how much risk it took for a crime to qualify as a violent felony under the residual clause. (Id. at p. 598.) Reinforcing its conclusion that the residual clause was hopelessly indeterminate, the Supreme Court recounted its repeated attempts and failures at crafting "a principled and objective standard out of the residual clause." (Ibid.) The Supreme Court further noted the clause had "'created numerous splits among the lower federal courts,'" with "pervasive disagreement about the nature of the inquiry one is supposed to conduct and the kinds of factors one is supposed to consider." (Id. at p. 601.)
In Ledesma, the Court of Appeal discussed the United States Supreme Court's analysis in Johnson and then applied that analysis in assessing whether California's asportation requirement for aggravated kidnapping was unconstitutionally vague. (Ledesma, 14 Cal.App.5th at pp. 837-839.) The Ledesma court concluded the asportation requirement did not suffer from the same deficiencies as the ACCA's residual clause in Johnson, because "California's asportation requirement compels juries and courts to apply a legal standard to real-world facts." (Id. at p. 838.) In contrast to the residual clause at issue in Johnson, which required judges to use a categorical approach that disregarded how the defendant actually committed the crime and required consideration of a hypothetical ordinary case when determining whether an offense qualified as a violent felony (Johnson, supra, 576 U.S. at p. 597), California's aggravated kidnapping asportation element requires the fact finder to focus on the defendant's conduct. (Ledesma, at p. 838.) "[T]his difference is crucial." (Ibid.) The Ledesma court explained that in assessing whether the asportation element had been proved, the jury in an aggravated kidnapping case is required to assesses whether the defendant's movement of the victim "was merely incidental to the rape[, robbery or other offense] and whether that movement substantially increased the risk of harm over and above the risk of harm inherent in [the intended underlying offense]." (Id. at pp. 838-839.) "This is precisely the type of determination that Johnson held was beyond the void-for-vagueness problem presented by the residual clause." (Ledesma, at p. 839.)
The Ledesma court also rejected the assertion that disagreements in the Courts of Appeal concerning the meaning of "incidental" in section 209, subdivision (b)(2), indicates that the asportation requirement is unconstitutionally vague. Addressing this claim, Ledesma explained: "California cases on the asportation element of aggravated kidnapping, including those [the defendant] cites, show broad agreement on both the nature of the inquiry required and the relevant factors to evaluate when deciding whether the facts in a case are sufficient to satisfy the asportation element of the aggravated kidnapping statute . . . ." (Ledesma, supra, 14 Cal.App.5th at p. 839.) Based on its analysis, the Ledesma court concluded that Johnson did not require it to find that the asportation element in section 209, subdivision (b)(2), was unconstitutionally vague. (Ledesma, at p. 839.)
Defendants contend Ledesma was wrongly decided and note it predated the United States Supreme Court's decisions in Dimaya and Davis. Neither Dimaya nor Davis compels us to conclude Ledesma was wrong.
In Dimaya, the United States Supreme Court held, based on its reasoning in Johnson, that the definition of a "'crime of violence'" in another federal statute "was impermissibly vague." (Dimaya, supra, 138 S.Ct. at p. 1210.) At issue in Dimaya was the residual clause in section 16(b) of title 18 of the United States Code, which defined a crime of violence as "any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense." (Id. at p. 1211.) Comparing the residual clause in section 16(b) with the residual clause at issue in Johnson (Dimaya, at pp. 1213-1215), the Dimaya court concluded section "16(b) has the same '[t]wo features' that 'conspire[d] to make [ACCA's residual clause] unconstitutionally vague.' [Citation.] It too 'requires a court to picture the kind of conduct that the crime involves in "the ordinary case," and to judge whether that abstraction presents' some not well-specified-yet-sufficiently-large degree of risk. [Citation.] The result is that §16(b) produces, just as ACCA's residual clause did, 'more unpredictability and arbitrariness than the Due Process Clause tolerates.'" (Dimaya, at p. 1216.) In Davis, the United States Supreme Court reviewed the residual clause in yet another federal statute (18 U.S.C. § 924(c)), which was virtually identical to that struck down in Dimaya, and held it too was unconstitutionally vague. (Davis, supra, 139 S.Ct. at pp. 2325-2327, 2336.)
Dimaya and Davis employ the same analysis as in Johnson, which was thoroughly discussed in Ledesma, supra, 14 Cal.App.5th at pages 837 to 840. In Davis, the United States Supreme Court explained that "a case-specific approach would avoid the vagueness problems that doomed the statutes in Johnson and Dimaya." (Davis, supra, 139 S.Ct. at p. 2327.) In Johnson and Dimaya, the Supreme Court recognized there is no vagueness problem when a jury is asked "to decide whether a defendant's '"real-world"' conduct created a substantial risk of physical violence." (Davis, at p. 2327; Welch v. United States (2016) 578 U.S. ___ [136 S.Ct. 1257, 1262] [Johnson's analysis "cast no doubt on the many laws that 'require gauging the riskiness of conduct in which an individual defendant engages on a particular occasion'"].) As the Ledesma court concluded, there is no vagueness problem with the asportation element in section 209, subdivision (b)(2), because it requires the factfinder to apply a legal standard to the defendant's actual conduct rather than a hypothetical situation. (Ledemsa, supra, 14 Cal.App.5th at pp. 838-839.) The asportation element for aggravated kidnapping simply does not suffer from the same imprecision as the clauses in Johnson, Dimaya, and Davis. We see no reason to depart from the reasoning in Ledesma and we follow its holding that the asportation element for aggravated kidnapping is not unconstitutionally vague. INSTRUCTIONAL ISSUES
Defendants raise three instructional issues among them. First, defendants assert the court erroneously instructed the jury on the definition of incidental movement, part of the asportation element of aggravated kidnapping (§ 209, subd. (b)(2); count 4.) They contend the court erred by failing to modify CALCRIM No. 1203, the pattern instruction on aggravated kidnapping, and by giving a special instruction that defined incidental movement. We disagree.
Second, Ivan, joined by Cristian and Simental, challenges the court's instruction on the asportation element of simple kidnapping (§ 207, subd. (a); count 6). They contend the court failed to give the jury a complete instruction on this element because the court did not identify any associated crimes when instructing the jury to consider whether the movement of B.M. "was beyond that merely incidental to the commission of" an associated crime. (CALCRIM No. 1215.) We conclude the jury should have been instructed to consider whether the movement was incidental to the robbery of F.M., and after finding the error prejudicial, we reverse defendants' convictions on count 6.
Third, Simental and Ivan assert the court erred by failing to instruct the jury with CALCRIM No. 335 that Oscar's accomplice testimony must be corroborated and viewed with caution. They contend their firearm enhancements and Ivan's great bodily injury enhancements must be reversed because Oscar's testimony on these enhancements was uncorroborated. While we agree the court erred by failing to give CALCRIM No. 335, the error was harmless.
General Principles for Instructional Error Claims
"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'"' [citation]. A 'criminal defendant is entitled to adequate instructions on the defense theory of the case' if supported by the law and evidence." (Bell, supra, 179 Cal.App.4th at p. 434.)
"'An appellate court reviews the wording of a jury instruction de novo' [citation], and determines whether 'the instructions are complete and correctly state the law.'" (Bell, supra, 179 Cal.App.4th at p. 435.) "When considering a claim of instructional error, we view the challenged instruction in the context of the instructions as a whole and the trial record to determine whether there is a reasonable likelihood the jury applied the instruction in an impermissible manner." (People v. Houston, supra, 54 Cal.4th at p. 1229.) Where reasonably possible, we interpret the instructions to support the judgment rather than defeat it. (People v. Ramos (2008) 163 Cal.App.4th 1082, 1088.)
The Court did not Misinstruct the Jury on the Asportation Element of Aggravated Kidnapping
Defendants challenge two instructions the court gave on the incidental movement element of the aggravated kidnapping charge. First, they contend CALCRIM No. 1203, the pattern instruction for the offense, "incorrectly directed the jury to evaluate whether the movement of the victim [was] incidental to 'a robbery' rather than incidental to 'the robberies committed by defendants.'" Second, they assert the court's special instruction defining "incidental movement" contained misstatements of law.
The Attorney General contends defendants forfeited their claims of error because they did not object to or request modification of either instruction in the trial court. "'Generally, a party may not complain on appeal that an instruction correct in law and responsive to the evidence was too general or incomplete unless the party has requested appropriate clarifying or amplifying language.' [Citation.] But that rule does not apply when . . . the trial court gives an instruction that is an incorrect statement of the law." (People v. Hudson (2006) 38 Cal.4th 1002, 1011-1012.) Defendants contend their claims are not forfeited on appeal, despite their failure to object, because the alleged instructional errors affected their substantial rights (§ 1259) and the court misinstructed the jury on the applicable law. "Ascertaining whether claimed instructional error affected the substantial rights of the defendant necessarily requires an examination of the merits of the claim—at least to the extent of ascertaining whether the asserted error would result in prejudice if error it was." (People v. Andersen (1994) 26 Cal.App.4th 1241, 1249.) Thus, we review and reject defendants' claims on their merits.
We first consider defendants' contention that CALCRIM No. 1203's description of the incidental movement element, as given in this case, was erroneous. CALCRIM No. 1203 stated the prosecution was required to prove the following: "1. The defendant intended to commit robbery, [¶] 2. Acting with that intent, the defendant took, held, or detained another person by using force or by instilling a reasonable fear; [¶] 3. Using that force or fear, the defendant moved the other person [or made the other person move] a substantial distance; [¶] 4. The other person was moved or made to move a distance beyond that merely incidental to the commission of a robbery; [¶] 5. When that movement began, the defendant already intended to commit robbery; [¶] AND [¶] 6. The other person did not consent to the movement." The instruction also defined substantial distance, explaining it meant "more than a slight or trivial distance" and that "[t]he movement must have increased the risk of [physical or psychological] harm to the person beyond that necessarily present in the robbery." The jury was also instructed: "[i]n deciding whether the movement was sufficient, consider all the circumstances relating to the movement."
Defendants contend element four of CALCRIM No. 1203 was "legally erroneous and misleading because it asks the jury to determine how much movement is incidental to a robbery, rather than the robberies committed by the defendant." They assert the instruction left the jury to speculate as to whether the movement was incidental to the robbery of the methamphetamine in the bedroom or the cocaine in the garage or a generic robbery and argue the court should have instructed the jury to decide whether F.M.'s movement was more than incidental to the overall robbery scheme. We disagree. It is not reasonably likely the jury applied the instruction as defendants suggest. There was no argument below that there were separate or multiple robberies. The prosecutor described the robbery and burglary as one overall scheme "with the intent to steal money and drugs." We reject defendants' claim of error as the instruction was legally correct and responsive to the evidence.
Next, we analyze defendants' contention that portions of the special instruction the court gave on incidental movement were legally erroneous. In the packet of written instructions given the jury, immediately following CALCRIM No. 1203, the jury was given an instruction on incidental movement that contained three statements of law, each followed by a case citation. The instruction stated: "Incidental means that the asportation play no significant or substantial part in the planned offense, or that it be a more or less trivial change of location having no bearing on the evil at hand. [¶] People v[.] Ellis (1971) 15 Cal[.] App.[3]d 66, 70.
"In determining whether the movement is merely incidental to the underlying crime, consider the scope and nature of the movement. [¶] People v. Daniels (1969) 71 Cal. 2d 1119.
"Lack of necessity is a sufficient basis to conclude a movement is not merely incidental. [¶] People v. James (2007) 148 Cal. App. 4th 446[.]"
When reading the instruction to the jury, the court did not include the case citations, and when reading the first paragraph of the instruction, the court interchanged the word plan for evil, stating: "Incidental means that the asportation played no significant or substantial part in the planned offense or that it be a more or less trivial change of location, having no bearing on the plan at hand." (Italics added.) These variations do not impact our analysis of the instruction.
Defendants Ivan and Simental present arguments attacking the first and third statements of law, which they refer to as the Ellis instruction and the James instruction, respectively. Ivan contends the Ellis instruction was "contrary to the California Supreme Court's interpretation of 'incidental'" in In re Earley (1975) 14 Cal.3d 122 (Earley). Simental contends the Ellis instruction was an incorrect statement of law based on Timmons, supra, 4 Cal.3d 411. To analyze defendants' contentions, we begin by reviewing these cases.
In People v. Ellis (1971) 15 Cal.App.3d 66, the trial court had set aside multiple counts of kidnapping for the purpose of robbery in a grand jury indictment, and the People appealed. (Id. at p. 67.) The Court of Appeal ordered the charges reinstated (id. at p. 74), concluding the superior court had misapplied Daniels, supra, 71 Cal.2d 1119 in setting them aside. (Id. at p. 68.) In reaching this conclusion, Ellis reviewed the holding and reasoning in Daniels, noting Daniels "expressed agreement with the drafters of the proposed Model Penal Code for the need to make 'clear the purpose to preclude kidnaping convictions based on trivial changes of location having no bearing on the evil at hand.'" (Ellis, at p. 69.) After discussing some of the cases upon which Daniels relied, the Ellis court concluded: "It becomes clear from a reading of Daniels, and the authority there relied upon, that the term 'incidental' was used in the sense that the asportation play no significant or substantial part in the planned robbery, or that it be a more or less '"trivial changes of location having no bearing on the evil at hand."'" (Ellis, at p. 70.) The last portion was a direct quote of language in Daniels.
About a month later, the Supreme Court decided Timmons, supra, 4 Cal.3d 411. In Timmons, the defendant had been convicted of two counts of kidnapping for the purpose of robbery prior to the Supreme Court's decision in Daniels, and he sought to recall the remittitur for reconsideration of whether he was properly convicted of aggravated kidnapping in light of Daniels' holding. (Timmons, at pp. 412-413.) The trial evidence indicated the defendant got into the car of two supermarket employees and forced them to drive about five blocks while he took the store's money from them. (Id. at pp. 413-414.) The issue was whether his act of forcing the employees to drive five blocks amounted to aggravated kidnapping as the offense was construed in Daniels. (Id. at p. 414.) The Supreme Court reversed the defendant's convictions (id. at p. 416), explaining "there can be no doubt that the movement was 'incidental to the commission of the robbery.'" (Id. at p. 414.) The court continued: "The car was in fact the moving situs of the robbery in this case; its movement allowed Timmons to relieve the victims of their money with less danger of detection than if he had robbed them in a busy parking lot, and facilitated his escape by transporting the eyewitnesses to a place where it would be more difficult for them to raise an immediate alarm. A reasonably brief movement for the purpose of facilitating the commission of a robbery is 'incidental' thereto within the meaning of Daniels. (Ibid.)
To the extent Simental argues the jury should have been instructed based on Timmons that "facilitative movement may or may not be incidental," we find this argument forfeited because he did not make this request below. (People v. Hardy (1992) 2 Cal.4th 86, 153 [it is incumbent upon a defendant to request clarification of an instruction he deems incomplete and the failure to do so forfeits the issue].)
A few years later, in Earley, supra, 14 Cal.3d 122, the Supreme Court again considered the retroactive application of its decision in Daniels. In Earley, the prosecution appealed after the superior court granted the defendant's petition for a writ of habeas corpus on the ground that his conduct did not constitute kidnapping for the purpose of robbery as the offense had been construed in Daniels. (Earley, at p. 125.) The facts of the offense were that the defendant had walked up to the side of the victim's car and placed an object through the window, which the victim believed was a gun. The defendant then drove the car about 10 to 13 blocks with the victim as the passenger, before stopping the car and obtaining the victim's wallet and watch, after which defendant ran away. (Id. at p. 126.) Explaining the standard to be applied in determining whether the movement was "'merely incidental to the commission of the robbery,'" the Supreme Court stated that "[b]rief movements to facilitate either robbery or robbery and rape are incidental thereto within the meaning of Daniels" (id. at p. 129) but facilitating movements "that are for a substantial distance rather than brief are not incidental thereto within the meaning of Daniels." (Id. at p. 130.) Analyzing the facts before it, the Earley court found the movement was substantial and therefore "not 'merely incidental to the commission of the robbery' [citation], even though it may have been solely to facilitate the commission of the robbery." (Ibid.) The court rejected the defendant's assertion "that 'when the robber's intent is solely to facilitate the robbery the movement is merely incidental' thereto within the meaning of Daniels." (Id. at p. 130, fn. 11.) Although the Supreme Court disapproved a number of cases containing "language suggesting that movement is not 'merely incidental' to a robbery where the movement is 'necessary' or 'essential' to the commission of the robbery," Ellis, supra, 15 Cal.3d 66 was not one of them. (Earley, at p. 130, fn. 11.)
We cannot say, categorically, that the Ellis instruction is a misstatement of law. Granted the definition of "incidental" as used in Daniels has been refined and varied since Ellis was decided. But Ellis's explanation—that a trivial change of location "'"having no bearing on the evil at hand"'" is insufficient asportation for kidnapping—came directly from Daniels, supra, 71 Cal.2d at page 1138. (Ellis, supra, 15 Cal.App.3d at p. 70.) And this remains a correct statement of the law. (James, supra, 148 Cal.App.4th at p. 454.)
Defendants also assert the James portion of the special instruction "is contrary to the California Supreme Court's decision in [People v.] Williams [(1970) 2 Cal.3d 894, 902]." We disagree. In Williams, the court reviewed its then-recent decision in Daniels and found the facts before it were similar to those in Daniels as the victim's movements "were merely incidental to the commission of the robbery" because they were brief and solely to facilitate the commission of the robbery. (Williams, at p. 902.) In reaching this holding, the court rejected an argument by the Attorney General that some movements by the victim "'were not incidental because they were not necessary movements of the type which ordinarily occur during the commission of a robbery.'" (Ibid.)
We find somewhat troubling the fact that the special instruction in this case did not include the entire statement in James, which is: "Lack of necessity is a sufficient basis to conclude a movement is not merely incidental; necessity alone proves nothing." (James, supra, 148 Cal.App.4th at p. 455.) Nevertheless, we note the portion of James given here was approvingly reiterated by our Division One colleagues in People v. Leavel, supra, 203 Cal.App.4th at p. 835, as part of their discussion of whether the evidence supported the finding that the victim's movement "was not 'merely incidental' to the commission of the robbery." (Id. at p. 836.) More importantly, defendants did not object to or request any modification of the James portion of the special instruction, and in the absence of such, the court had no obligation to modify the instruction.
Considering the instructions as a whole, we conclude CALCRIM No. 1203 and the special instruction did not adversely impact the jury's determination of whether the movement of F.M. was beyond that merely incidental to the commission of the robbery. The jury was instructed pursuant to CALCRIM No. 1203 that the victim must be moved a substantial distance and that it must find the person was moved a distance beyond that merely incidental to the intended robbery. The instruction also defined substantial distance and the circumstances the jury must consider in determining whether the victim's movement was substantial. The special instruction did not negate any of the elements of the offense and accurately told the jury to "consider the scope and nature of the movement" "[i]n determining whether the movement [was] merely incidental to the" robbery. Accordingly, we conclude it was not reasonably likely the jury was misled as to the asportation element of the offense.
Although we reject defendants' claims of error, we would be remiss if we did not caution the prosecution, which submitted the instruction, and the court, which gave it, against fashioning an instruction like this in the future. "Language in an appellate court opinion which may be a good statement of law or of the reasoning of the appellate court does not necessarily make a good jury instruction." (People v. Adams (1987) 196 Cal.App.3d 201, 204-205; accord, People v. Colantuono (1994) 7 Cal.4th 206, 221-222 & fn. 13.)
The Court Committed Prejudicial Error by Failing to Identify Robbery as the Associated Crime in the Instructions on the Simple Kidnapping Charge
The court's instruction on simple kidnapping (count 6) failed to inform the jurors that in determining whether the prosecution had proved B.M. was moved a substantial distance, they should consider whether the distance she was moved was incidental to the commission of the robbery. The parties agree this was instructional error. They disagree, however, as to the harmless error standard to be applied and whether the error was prejudicial. We agree with defendants that the error should be evaluated under the beyond-a-reasonable-doubt test enunciated in Chapman v. California (1967) 386 U.S. 18, 24 (Chapman) and conclude the error was prejudicial.
To reiterate, simple kidnapping (§ 207) involves using force or fear to move a person without his or her consent and for "a substantial distance." (Bell, supra, 179 Cal.App.4th at p. 435.) In Martinez, supra, 20 Cal.4th 225, our Supreme Court explained the jury should "consider the totality of the circumstances" in deciding whether a victim's movement "is '"substantial in character."'" (Id. at p. 237.) In evaluating the totality of the circumstances, one of the factors the jury can consider is whether the victim's movement was incidental to the commission of another crime concurrently committed. Thus, "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." (Ibid.) In Bell, supra, 179 Cal.App.4th 428, we considered "what constitutes an 'associated crime'" in this context (id. at p. 437) and concluded it "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." (Id. at pp. 438-439.) This has been called the "'associated crime' factor." (People v. Singh (2019) 42 Cal.App.5th 175, 184.)
Here, the court instructed the jury with CALCRIM No. 1215, the standard instruction for simple kidnapping, which informed the jurors that in order to convict defendants of kidnapping as charged in count 6, one of the elements they must find is that defendants moved B.M. "a substantial distance" using force or fear. The instruction also defined substantial distance. As provided to the jury, the written instruction stated: "Substantial distance means more than a slight or trivial distance. In deciding whether the distance was substantial, you must consider all the circumstances relating to the movement. [Thus, in addition to considering the actual distance moved, you may also consider other factors such as [whether the distance the other person was moved was beyond that merely incidental to the commission of __________ <insert associated crime>], whether the movement increased the risk of [physical or psychological] harm, increased the danger of a foreseeable escape attempt, or gave the attacker a greater opportunity to commit additional crimes, or decreased the likelihood of detection.]" (Italics added.) When reading the instruction to the jury, the court made a slight variation in the pertinent language, telling the jurors that "in addition to considering the actual distance moved, you may also consider other factors such as whether the distance the other person was moved was beyond the merely - was beyond that merely incidental to the commission of the crime . . . ." (Italics added.)
Defendants contend the simple kidnapping instruction given and read to the jury was inadequate because the court failed to identify an associated crime in the instruction. In fact, they assert there were multiple associated crimes. They argue the court should have instructed the jurors to consider whether B.M.'s movement was incidental to the commission of the kidnapping of F.M. for robbery (count 4), robbery of F.M. (count 5), and burglary (count 9). The Attorney General argues robbery was the only associated crime and agrees the jurors should have been instructed that they should consider whether the movement of B.M. was merely incidental to the robbery in determining whether B.M. was moved a substantial distance. We agree with the Attorney General.
Under the facts in this case, neither burglary nor the kidnapping of F.M. was an associated crime. The burglary was complete upon defendants' entry of the house with the requisite intent. (§ 459; People v. Valencia (2002) 28 Cal.4th 1, 8 ["'California courts have found that a burglary is complete upon the slightest partial entry of any kind, with the requisite intent'"], disapproved on another ground in People v. Yarbrough (2012) 54 Cal.4th 889, 894.) Because the burglary was complete before defendants reached B.M.'s room and moved her any distance, the burglary was not an associated crime to B.M.'s kidnapping. (See People v. Delacerda, supra, 236 Cal.App.4th at p. 291 [concluding the court was not required to instruct the jury to consider whether defendant's movement of the victim was incidental to his commission of an assault with a firearm because the offense "was complete before the movement which comprised the kidnapping began" and "was not an associated crime as a matter of fact"].) Similarly, the kidnapping of F.M. was not an associated crime as it occurred several minutes after B.M. had been moved from her bedroom and into the closet. B.M. was not moved during the commission of the kidnapping of F.M. Thus, the court was not required to instruct the jury to consider whether B.M.'s movement was merely incidental to defendants' commission of the burglary and kidnapping of F.M. in deciding whether she was moved a substantial distance.
However, we agree with the parties that the court's failure to include robbery as an associated crime was error. The evidence established defendants intended to rob F.M. of his drugs and money. Whether B.M.'s movement from her bedroom to F.M.'s bedroom was incidental to the robbery of F.M. was a factual question for the jury's consideration. Thus, the court should have instructed the jurors that one of the factors they could consider in determining whether the movement of B.M. was substantial was whether the distance she was moved was beyond that merely incidental to the commission of the robbery.
The parties disagree over the harmless error standard to be applied and whether the error was prejudicial. Defendants contend the instructional error "misdescribe[d] an offense element" and was prejudicial under Chapman's beyond-a-reasonable-doubt test. In Bell, supra, 179 Cal.App.4th at page 439 and People v. Delacerda, supra, 236 Cal.App.4th at page 289, we applied the Chapman standard because the court's failure to instruct on the associated crime factor rendered the instruction on the asportation element incomplete and violated the "defendant's right to a correct jury instruction on all the elements of the offense of simple kidnapping." (Bell, at p. 439.)
The Attorney General asserts the instructional error should be evaluated under the harmless error standard in People v. Watson (1956) 46 Cal.2d 818. He attempts to distinguish Bell and Delacerda and contends we should apply the Watson standard because the court did not omit the entire associated crime element as in Bell and Delacerda, but instead, omitted a single word from the element. The Attorney General's argument, however, ignores the significance of the omitted word. The omitted word was critical to the associated crime factor. By omitting robbery, the instruction's language was akin to no instruction on the associated crime factor. In the written instruction given to the jury, the court left blank the space where the associated crime of robbery was to be included, leaving the jury to speculate what, if any, crimes it should consider. When reading the instruction to the jury, the court told the jurors they could consider whether the movement "was beyond that merely incidental to the commission of the crime." (Italics added.) The jurors likely believed the court was referring to the crime of kidnapping and would not have understood the associated crime was robbery. We conclude there is no practical difference between the court's instruction here and the failure to instruct on the associated crime factor in Bell and Delacerda. A misinstruction or an incomplete instruction on an element of an offense implicates a defendant's federal constitutional right to due process of law and triggers Chapman's harmless error analysis. (Neder v. United States (1999) 527 U.S. 1, 8-15; People v. Flood (1998) 18 Cal.4th 470, 491, 504.) Under Chapman, 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.)
Relying on our analysis in Bell, supra, 179 Cal.App.4th 428, defendants contend the error was prejudicial and their convictions for kidnapping B.M. must be reversed. In Bell, we explained "[i]n determining whether instructional error was harmless," we consider "'the specific language challenged, the instructions as a whole[,] and the jury's findings' [citation], and counsel's closing arguments . . . ." (Id. at p. 439.)
Here, the Attorney General argues the error was harmless because "[t]he instructions as a whole and the arguments of counsel made it clear that the 'associated crime' or 'the crime' referenced in CALCRIM No. 1215 was the crime of robbery." In support of this argument, the Attorney General cites CALCRIM No. 1203, the instruction for kidnapping for robbery, which instructed the jurors to consider whether the person was moved "'a distance beyond that merely incidental to the robbery.'" But the instruction on kidnapping for robbery did not resolve the error in the instruction on simple kidnapping. The jury was told to "follow the law as" the court explains it to them. (CALCRIM No. 200.) The jury would not have understood to take the reference to robbery in the instruction on the charge of kidnapping F.M. for robbery and use it to fill in the associated crime factor left blank by the court in the instruction on kidnapping B.M. Nor did the prosecutor's argument render the error harmless. In arguing defendants were guilty of kidnapping B.M., the prosecutor did not tell the jury that they needed to determine whether the movement of B.M. was not merely incidental to the robbery.
As in Bell, the Attorney General is unable to point us to "other jury instructions, jury findings or counsel's arguments showing the jurors knew they" (Bell, supra, 179 Cal.App.4th at p. 439) had to consider whether the distance B.M. was moved was beyond that merely incidental to the commission of the robbery in determining whether she was moved a substantial distance. The failure to include robbery as the associated crime was not harmless beyond a reasonable doubt. Accordingly, we must reverse defendants' convictions for kidnapping B.M. (count 6).
Because we conclude the court committed prejudicial error by failing to identify robbery as the associated crime in its instructions on simple kidnapping, we do not address defendants' argument that it is reasonably likely the jury referred to the special instruction defining incidental movement when construing the term in the simple kidnapping instruction. The propriety of the special instruction on incidental movement is discussed ante.
The Failure to Instruct on Accomplice Testimony was Harmless
Defendants Simental and Ivan argue Oscar was an accomplice as a matter of law and the trial court had a sua sponte duty to instruct the jury with CALCRIM No. 335 that Oscar's testimony must be corroborated and viewed with caution. They contend the error was prejudicial as to the firearm enhancements because there was no independent evidence that either of them personally used a firearm during the offenses. Ivan further asserts the error was prejudicial as to the great bodily injury enhancements because Oscar's testimony was the only evidence identifying him as the man who struck F.M. and caused him great bodily injury. We agree the court erred by failing to instruct with CALCRIM No. 335 but conclude the error was harmless.
"Section 1111 prohibits a defendant from being convicted on the uncorroborated testimony of an accomplice. Accomplice testimony must be corroborated by 'other evidence as shall tend to connect the defendant with the commission of the offense . . . . [¶] An accomplice is . . . defined as one who is liable to prosecution for the identical offense charged against the defendant on trial in the cause in which the testimony of the accomplice is given.' (§ 1111.)" (People v. Williams (2008) 43 Cal.4th 584, 635-636.) A "court should instruct the jury that a witness is an accomplice as a matter of law when the facts establishing the witness's status as an accomplice are '"'clear and undisputed.'"'" (Id. at p. 636.)
Here, Oscar was an accomplice as a matter of law, and, therefore, the court had a duty, sua sponte, to instruct the jury with CALCRIM No. 335. (See People v. Guiuan (1998) 18 Cal.4th 558, 566 ["an instruction on accomplice testimony must be given on the court's own motion when the accomplice is called solely by the prosecution"].) CALCRIM No. 335 is consistent with section 1111 and tells the jury that the defendant may not be convicted of a crime based solely on the testimony of an accomplice. But the instruction informs the jurors that they may convict the defendant based on the accomplice's testimony incriminating the defendant if three conditions are met: (1) the accomplice's testimony is supported by other credible evidence; (2) "[t]hat supporting evidence is independent of the accomplice's [testimony]"; and (3) "[t]hat supporting evidence tends to connect the defendant to the commission of the crime[s]." (CALCRIM No. 335.) The instruction further warns the jury that any statement or testimony by "an accomplice that tends to incriminate the defendant should be viewed with caution." (Ibid.)
The parties agree the court's failure to instruct the jury on accomplice testimony was clearly error. The disputed issue is whether the error was harmless. "Failure to instruct pursuant to section 1111 is harmless if there is sufficient corroborating evidence." (People v. Hayes (1999) 21 Cal.4th 1211, 1271.) "To corroborate the testimony of an accomplice, the prosecution must present 'independent evidence,' that is, evidence that 'tends to connect the defendant with the crime charged' without aid or assistance from the accomplice's testimony." (People v. Avila (2006) 38 Cal.4th 491, 562-563.) "Corroborating evidence may be slight, may be entirely circumstantial, and need not be sufficient to establish every element of the charged offense." (Hayes, at p. 1271.) "'[E]ven if there [was] insufficient corroboration, reversal is not required unless it is reasonably probable a result more favorable to the defendant would have been reached.'" (People v. Gonzales and Soliz (2011) 52 Cal.4th 254, 304.)
Defendants Simental and Ivan do not contend the court's failure to instruct with CALCRIM No. 335 was prejudicial as to the charged offenses. Simental admits Oscar's testimony concerning the charged offenses was corroborated by the testimony of the other witnesses. In joining Simental's argument, Ivan does not disagree. Their admission is judicious but effectively extinguishes their claim of prejudice as to the firearm and great bodily injury enhancements for the reasons explained in People v. Maldonado (1999) 72 Cal.App.4th 588, a case not discussed by either party.
In Maldonado, supra, 72 Cal.App.4th at page 597, the court addressed a claim like the one made here. There, one of the defendants asserted "the gun use enhancement must be stricken because the jury was not instructed that [an accomplice]'s testimony as to the enhancement required corroboration, and because there was no independent evidence that he had personally used a firearm." Rejecting this claim, the Court of Appeal concluded "accomplice corroboration was not required to prove the gun use allegation" because "section 1111, requiring corroboration, applies by its terms to 'conviction' of an 'offense.' An enhancement for personal use of a firearm is not an 'offense,' and a true finding on an enhancement allegation is not a 'conviction.'" (Ibid.) Further explaining its reasoning, Maldonado stated: "Accomplice testimony must be corroborated to avoid the evil of an accused being convicted solely on the testimony of a coperpetrator who has a motive to place all the blame on the accused. Independent evidence must therefore connect the accused to the commission of the substantive offense, '"in such a way as reasonably may satisfy a jury that the accomplice is telling the truth."' [Citation.] The independent evidence need not establish all the elements of the underlying offense; once the corroboration sufficiently establishes the accomplice's believability, the accomplice's evidence may establish many facts or details not related in the independent testimony.
"We conclude, therefore, that the requirement of accomplice corroboration to convict on the underlying offense is all that Penal Code section 1111 requires; even if a true finding of a gun use enhancement depends exclusively upon the testimony of an accomplice, the corroboration requirement has already satisfied the statutory purposes of establishing the credibility of the accomplice while connecting the particular defendant to the commission of the crime. Unless the defendant has been properly convicted of the underlying offense under corroborated accomplice testimony, the question of personal use of a firearm for enhancement purposes never arises. But when a defendant has already been found guilty of the underlying offense, the accomplice's credibility as to additional details of the crime, such as which participant used a gun, has at that point been supported by independent corroboration connecting the defendant to the commission of the crime. There is no reason why the trier of fact should not then believe the accomplice's evidence as to the detail of gun use without requiring further specific independent corroboration on that point." (Id. at p. 598.)
The reasoning of the Maldonado court is persuasive. The California Supreme Court has long held the corroborating evidence required under section 1111 "'need not independently establish the identity of the victim's assailant' [citation], nor corroborate every fact to which the accomplice testifies . . . ." (People v. Romero and Self (2015) 62 Cal.4th 1, 32.) Although the corroborating "evidence must implicate the defendant in the crime and relate to proof of an element of the crime, it need not be sufficient to establish all the elements of the crime." (People v. Williams, supra, 43 Cal.4th at p. 638.) It needs merely to "'connect the defendant with the crime in such a way as to satisfy the jury that the accomplice is telling the truth.'" (People v. Gonzales and Soliz, supra, 52 Cal.4th at p. 304.) Once an accomplice's testimony as to an offense is sufficiently corroborated to convince the jury that the accomplice is telling the truth, the jury may also find the accomplice's testimony trustworthy as to the enhancement allegations, without the need for additional corroboration.
As Simental (and inferentially Ivan) admit, Oscar's testimony as to the charged offenses was corroborated by the testimony of the other witnesses and admitted evidence. Once Oscar's testimony was sufficiently corroborated as to the charged offenses, the jury could consider and credit his testimony regarding the firearm and great bodily injury enhancements without the requirement of independent corroboration.
Even assuming Oscar's testimony relating to the firearm and great bodily injury enhancements must be corroborated, his testimony was supported by independent evidence. Independent witness testimony and physical evidence corroborated Oscar's testimony that Ivan was the intruder who repeatedly hit F.M., inflicting great bodily injury, and who personally used a firearm. F.M. testified he was punched in the face, stabbed, and hit in the head with the butt of a rifle multiple times. When Ivan was arrested a few hours after the crimes, he had F.M.'s blood on his hands and clothes. This physical evidence, in conjunction with F.M.'s testimony, corroborated Oscar's testimony, proving the firearm and great bodily injury enhancements as to Ivan.
There was also independent evidence corroborating Oscar's testimony that Simental had a firearm during the offenses. Oscar testified that each of the intruders was armed with a firearm. Although the victims were not able to differentiate between the intruders, they testified there were multiple gunmen. F.M. and K.P. testified two men came into their room carrying rifles, while A.M. and B.M. testified men came into their rooms carrying "big" guns.
Even if we conclude corroboration of the enhancements was required and lacking, reversal would not be required because it is not reasonably probable a result more favorable to Simental and Ivan would have been reached had the court instructed the jury with CALCRIM No. 335. The court's instruction on witness credibility told the jury to view Oscar's testimony with caution. The jury was well aware Oscar was an accomplice to the charged crimes and originally faced a life sentence but agreed to testify against defendants in exchange for an eight-year sentence. The court instructed the jury on the factors to consider in evaluating a witness's testimony, including whether the witness was "promised immunity or leniency in exchange for his . . . testimony." (CALCRIM No. 226.) "The jury therefore would have used the witness credibility instructions it was given in evaluating the truth of his testimony." (People v. Gonzales and Soliz, supra, 52 Cal.4th at p. 304 [finding the failure to give jury instructions on accomplice testimony harmless where the jury was given witness credibility instructions CALJIC Nos. 2.20 and 2.21.2].) Thus, the trial court's failure to give the accomplice instruction was harmless. SENTENCING ISSUES
Section 654After imposing life sentences on defendants' convictions for kidnapping F.M. for the purpose of robbery (count 4), the court imposed a consecutive determinate term for the robbery of F.M. (count 5) and a concurrent term for burglary (count 9). The court also imposed concurrent sentences on Ivan and Simental's convictions for making a criminal threat to F.M. (count 7).
Cristian was not convicted of making a criminal threat in count 7.
Ivan contends his sentences for the robbery of F.M. (count 5), making a criminal threat to F.M. (count 7), and burglary (count 9) must be stayed under section 654 because he was separately punished for kidnapping F.M. for robbery (count 4) and all of these offenses were committed during an indivisible course of conduct with the single objective of obtaining F.M.'s drugs and money. Simental and Cristian join in this claim. The Attorney General concedes each defendant's sentence for robbery must be stayed under section 654, as well as the sentence on Cristian's burglary conviction. He argues the separate punishments imposed on Ivan and Simental's criminal threat and burglary convictions do not violate section 654. We agree with the Attorney General.
"An 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).) Section 654 prohibits multiple punishments for separate offenses arising from a single act or from an indivisible course of conduct "where all of the offenses were incident to one objective." (People v. Lewis (2008) 43 Cal.4th 415, 519, disapproved on other grounds in People v. Black (2014) 58 Cal.4th 912, 919-920.) "'"'Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one.'"' [Citation.] Intent and objective are factual questions for the trial court, which must find evidence to support the existence of a separate intent and objective for each sentenced offense." (People v. Jackson (2016) 1 Cal.5th 269, 354.) "The court's findings may be either express or implied from the court's ruling. [Citation.] In the absence of any reference to . . . section 654 during sentencing, the fact that the court did not stay the sentence on any count is generally deemed to reflect an implicit determination that each crime had a separate objective." (People v. Tarris (2009) 180 Cal.App.4th 612, 626.) "A trial court's implied finding that a defendant harbored a separate intent and objective for each offense will be upheld on appeal if it is supported by substantial evidence." (People v. Blake (1998) 68 Cal.App.4th 509, 512.)
1. Robbery of F.M. (Count 5)
Defendants contend the court violated section 654 by separately punishing them for the robbery of F.M. (count 5) and kidnapping F.M. for the purpose of robbery (count 4) because the two offenses were committed with the single intent and objective of robbing F.M. The Attorney General concedes the error and agrees defendants' sentences for robbery must be stayed under section 654. Our Supreme Court has explained sentences for robbery must be stayed under section 654 when a defendant is convicted of both kidnapping for robbery and robbery of the same victim and the offenses "were committed 'pursuant to a single intent and objective'" of robbing the victim. (People v. Lewis, supra, 43 Cal.4th at p. 519; accord, People v. Beamon (1973) 8 Cal.3d 625, 639-640 [defendant "convicted of kidnap[p]ing for the purpose of robbery and for the commission of that very robbery" "committed pursuant to a single intent and objective," may "be punished for only one of such crimes"].) We agree with the parties that the court violated section 654 by punishing defendants for both kidnapping to commit robbery and robbery. We must remand the matter for the court to stay the sentence on defendants' robbery convictions and resentence on the determinate terms as the robbery sentence was the principal determinate term.
2. Making a Criminal Threat to F.M. (Count 7)
At sentencing, the court indicated it was imposing concurrent sentences on Ivan and Simental's conviction for making a criminal threat to F.M. (count 7) because the offense was "part of the continuing course of conduct." Ivan and Simental assert section 654 thus mandates their punishment for making a criminal threat in count 7 be stayed. We disagree.
The court's finding that the criminal threat offense was part of a continuous course of conduct with the robbery and kidnapping for robbery does not mandate a certain result. Where it is "undisputed" that the offenses "were parts of a single continuous course of conduct," "[t]he determinative issue is whether [defendants] had multiple, independent objectives." (People v. Perry (2007) 154 Cal.App.4th 1521, 1526.) The court made no express finding that defendants Ivan and Simental entertained multiple criminal objectives in this continuing course of conduct, but its imposition of a concurrent term on count 7 suggests the court found defendants had a discrete objective in committing this offense. (See People v. Nelson (1989) 211 Cal.App.3d 634, 638 [where the court imposes separate punishment on each offense, "a finding that defendant's crimes were divisible inheres in the judgment," even if the court made no express findings the defendant had multiple objectives].)
The evidence supports the court's implied finding that defendants Ivan and Simental had multiple criminal objectives. Several threats were made to F.M. during the robbery with the intent of obtaining his drugs and money: He was threatened with death, the dismemberment of one of his children, and that his ear would be cut off. However, after defendants had obtained all of the drugs and were preparing to leave, F.M. and his family were again threatened with death as he was told to not get up for 30 minutes or they would kill them. Defendants harbored a separate intent here as they threatened F.M. to enable their escape. (See People v. Nichols (1994) 29 Cal.App.4th 1651, 1656-1658 [upholding separate punishments for kidnapping and threatening to kill the victim (§ 136.1, subd. (c)(1)) because there was substantial evidence the defendant had one objective to rob and kidnap the victim and the separate objective of avoiding detection by intimidating and dissuading the victim].) Thus, the court did not violate section 654 by imposing concurrent terms on count 7 when sentencing Ivan and Simental.
3. Burglary (Count 9)
The court also imposed concurrent sentences on defendants' burglary convictions (count 9), indicating the offense was "part of the continuing course of conduct." Defendants contend the court was required to stay their punishment for burglary under section 654. The Attorney General asserts only Cristian's burglary sentence must be stayed under section 654. He argues the court properly imposed separate punishments for Ivan and Simental's burglary convictions based on the multiple victim exception to section 654. Ivan, joined by Simental, contend the multiple victim exception does not apply because the burglary offense was not alleged as a violent felony and both the robbery and burglary alleged the same victim, F.M. We accept the Attorney General's concession that Cristian's sentence for burglary must be stayed under section 654, and we affirm the court's imposition of separate punishments on Ivan and Simental's burglary convictions.
Generally, "section 654 bars punishment for both burglary and robbery where the sole purpose of the burglary was to effectuate the robbery." (People v. Smith (1985) 163 Cal.App.3d 908, 912.) Thus, unless the multiple victim exception applies, defendants could not be separately punished for both the robbery and burglary.
"Under the multiple victim exception, '"'even though a defendant entertains but a single principal objective during an indivisible course of conduct, he [or she] may be convicted and punished for each crime of violence committed against a different victim.' [Citations.]"' [Citation.] 'The robbery of a victim at gunpoint has been held to be an act of violence such as to preclude application of section 654 in the case of multiple convictions involving multiple victims.' [Citations.] Burglary may also be treated as a crime of violence when the defendant personally used a firearm in committing the offense. [Citation.] To preclude application of section 654, however, each of the crimes must have involved at least one different victim." (People v. Cardenas (2015) 239 Cal.App.4th 220, 230.)
As to Ivan and Simental, the kidnapping for robbery, robbery, and burglary were alleged and proved to be violent felonies. "[F]or purposes of the multiple victim exception," kidnapping for robbery has been held to be a violent felony. (People v. Centers (1999) 73 Cal.App.4th 84, 100 (Centers).) Robbery is a violent felony (§ 667.5, subd. (c)(9)), and the burglary in this case is considered a crime of violence as to defendants Ivan and Simental because the jury found they personally used a firearm in the commission of the burglary (id., subd. (c)(8)). (See Centers, at p. 99 [burglary may be treated as a violent felony for purposes of the multiple victim exception when there is a finding the defendant personally used a firearm in the offense].) Because the firearm enhancements were dismissed as to Cristian, his burglary conviction is not considered a violent felony and the multiple victim exception does not apply. The sentence on Cristian's burglary conviction should therefore be stayed under section 654.
As to Ivan and Simental, application of the multiple victim exception turns on whether the burglary involved a victim other than F.M., the victim of the robbery and kidnapping for robbery. The evidence at trial indicated there were multiple victims to the burglary in addition to F.M.: his wife K.P., his sister A.M., his daughters B.M., J.M., and F.M., and his cousin's wife and children. All these victims were present inside the house when defendants entered, carrying firearms.
We look to Centers, supra, 73 Cal.App.4th 84 for guidance. In Centers, the defendant entered a residence where the victim was present with two other people. Pointing a handgun at the victim and one other occupant, the defendant forced the victim to leave with him because the victim owed him money. (Id. at p. 89.) He was convicted of burglary and kidnapping for ransom, and the jury found he used a firearm in the commission of both offenses. (Id. at p. 90.) The court imposed separate sentences for the kidnapping and burglary convictions, which the defendant argued on appeal violated section 654. (Id. at p. 98.) The Centers court affirmed the sentence because "there was at least one victim of the burglary and the personal firearm use who was not also a victim of the kidnapping." (Id. at p. 102.)
Ivan and Simental contend Centers is distinguishable and the multiple victim exception does not apply here. They note that in Centers, "the information did not allege, and the jury did not find, that any particular person was the victim of either the burglary or the related personal firearm use enhancement." (Centers, supra, 73 Cal.App.4th at pp. 100-101.) Here, the information alleged F.M. was the victim of the kidnapping for robbery, robbery, and burglary. The jury's verdicts did not explicitly name F.M. as the victim of the burglary but indicated the jury found defendants guilty of burglary "as charged in COUNT 9 of the Amended Information" and that both Ivan and Simental personally used a firearm during the burglary.
The fact the information and the jury's verdict did not name a separate victim does not forestall application of the multiple victim exception. On this point, People v. Felix (2009) 172 Cal.App.4th 1618 is instructive. In Felix, the defendant was convicted of attempted murder and shooting at an occupied dwelling, and on appeal, he argued the sentence for shooting at an inhabited dwelling should be stayed under section 654. (Id. at p. 1630.) The Court of Appeal upheld the separate punishments under the multiple victim exception because other people were present in the house when the defendant shot at the inhabited dwelling with the intent of killing the victim (id. at pp. 1630-1631) and the "houseguests were victimized by the shooting into the dwelling but were not named victims in any other count." (Id. at p. 1631.)
"Ordinarily, in determining whether . . . section 654 applies, the trial court is entitled to make any necessary factual findings not already made by the jury." (Centers, supra, 73 Cal.App.4th at p. 101.) In People v. Deegan (2016) 247 Cal.App.4th 532, the Court of Appeal noted that "'in the absence of some circumstance "foreclosing" its sentencing discretion . . . , a trial court may base its decision under section 654 on any of the facts that are in evidence at trial, without regard to the verdicts." (Id. at p. 545.) Rejecting the defendant's argument "that the jury must make the relevant findings," (ibid.), the Deegan court analyzed whether the trial court's application of the multiple-victim exception to section 654 was supported by substantial evidence. (Id. at pp. 545-546.)
Here, the trial court's implied finding that K.P. was also a victim of the burglary is supported by substantial evidence. Defendants do not argue otherwise. The trial evidence showed K.P. was asleep in her bedroom when two men entered with rifles. She testified that when she tried to get up, she was pushed down and threatened with a rifle. Because K.P. was a victim of the burglary and was not a named victim in any other count, the multiple victim exception applied and the trial court was not required to stay the sentence on Ivan and Simental's burglary convictions under section 654. Section 1170.91
Simental is a decorated Marine Corps veteran who suffers from post-traumatic stress disorder (PTSD) and substance abuse. Under section 1170.91, a sentencing court must consider a veteran's service-related trauma, mental health problems, and substance abuse "as mitigating factors weighing in favor of low-term felony sentences." (People v. Bonilla-Bray (2020) 49 Cal.App.5th 234, 236.) When sentencing Simental, the court imposed upper-term, determinate sentences on counts 5 and 7 through 9 and did not reference section 1170.91 nor indicate that it had considered Simental's service-related illnesses as mitigating factors. Simental contends his case should be remanded for resentencing on the determinate terms because the record does not reflect the court was aware of section 1170.91 or complied with its mandate.
The court ordered the term on count 6 to run consecutive to count 5; therefore, it imposed one-third the midterm on count 6.
The Attorney General agrees the court appeared unaware of section 1170.91 at sentencing, but he argues the court, nevertheless, considered Simental's military service and PTSD in making its sentencing decision. The Attorney General asserts remand is futile because the court would not have imposed a lesser sentence if it had been aware of section 1170.91. We agree with the Attorney General in part. The record reflects the court was aware of Simental's military service and that he had been diagnosed with PTSD and suffered from drug addiction following his combat service. However, the record does not reflect that the court was aware of the weight to be applied to these facts under section 1170.91. As we are remanding the matter for further proceedings that will include resentencing, the court may consider these factors at the resentencing hearing as required under section 1170.91.
When first enacted and effective on January 1, 2015, section 1170.91 "contained a single paragraph creating a requirement that a sentencing court consider mental health and substance abuse problems stemming from military service as a mitigating factor when imposing a determinate term under section 1170, subdivision (b). [Citation.] Specifically, the statute provided, 'If the court concludes that a defendant convicted of a felony offense is, or was, a member of the United States military who may be suffering from sexual trauma, traumatic brain injury, post-traumatic stress disorder, substance abuse, or mental health problems as a result of his or her military service, the court shall consider the circumstance as a factor in mitigation when imposing a term under subdivision (b) of Section 1170.'" (People v. King (2020) 52 Cal.App.5th 783, 788.)
Although section 1170.91 was subsequently amended (Stats. 2018, ch. 523, § 1), the quoted language remains unchanged.
The probation officer's report and Simental's sentencing brief informed the court of Simental's decorated military service, which included two tours of duty in Iraq. The probation officer's report also indicated Simental's drug usage began after his first combat tour and that he had been diagnosed with PTSD. But it did not include these as mitigating factors for consideration at sentencing. In his sentencing brief, Simental asserted his PTSD was the reason behind his criminal offenses and contended the court "should" consider it as a mitigating factor at sentencing. Neither of these documents, however, referenced section 1170.91 nor its requirement that the court must consider Simental's service-related illnesses as mitigating factors at sentencing, if the court concluded he was suffering from a service-related illness.
At the sentencing hearing, neither the court nor the parties referred to section 1170.91, subdivision (a). Nothing in the record reflects the court was aware of section 1170.91 and its potential impact on its sentencing decisions. Simental is entitled to a sentencing decision "based upon the court's informed discretion" and a "court should consider all mitigating circumstances in" exercising its sentencing discretion. (People v. Tatlis (1991) 230 Cal.App.3d 1266, 1274.)
As we are remanding the matter for further proceedings, which will include recalculating Simental's determinate sentence, the court can apply section 1170.91, subdivision (a), at the resentencing hearing. If the court concludes Simental was a member of the United States military and suffers from a service-related illness, the court shall consider this circumstance as a mitigating factor when selecting a determinate term under section 1170, subdivision (b). (§ 1170.91, subd. (a).)
We express no opinion as to the impact, if any, this factor should have on the court's sentencing decision.
Abstract of Judgment
Cristian seeks the correction of two clerical errors in his abstract of judgment. He contends his abstract of judgment must be corrected to reflect that (1) he was convicted of kidnapping to commit robbery in count 4 and (2) his local conduct credits were awarded under section 2933.1. The Attorney General does not object to these corrections. Accordingly, we direct the trial court to correct the abstract of judgment for Cristian's indeterminate prison commitment to describe his conviction in count 4 as "kidnapping to commit robbery." (See People v. Phung (2018) 25 Cal.App.5th 741, 761 [ordering correction of defendant's abstract of judgment to accurately reflect his conviction].) Cristian's custody credits are listed in the abstract of judgment for his determinate sentence. We direct the court, when it prepares an amended abstract of judgment following the resentencing hearing, to indicate Cristian's local conduct credits were awarded under section 2933.1.
DISPOSITION
Defendants' convictions for kidnapping B.M. in count 6 is reversed. The matter is remanded to allow the prosecution to retry defendants on this kidnapping count if it so chooses. If the prosecution elects not to pursue this option, the court shall resentence defendants in accordance with this opinion.
At the resentencing hearing, defendants' sentences for robbery (count 5) must be stayed under section 654, as well as Cristian's sentence for burglary (count 9). If the court concludes Simental was a member of the United States military and suffers from a service-related illness, the court shall consider this circumstance as a mitigating factor when selecting a determinate term under section 1170, subdivision (b), in compliance with section 1170.91, subdivision (a).
We direct the trial court to correct Cristian's abstract of judgment to reflect he was convicted of kidnapping to commit robbery in count 4 and that his local conduct credits were awarded under section 2933.1. The trial court is further directed to forward a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
IKOLA, J. WE CONCUR: BEDSWORTH, ACTING P. J. ARONSON, J.