Opinion
E063247
03-17-2017
THE PEOPLE, Plaintiff and Respondent, v. RAYMOND SALGADO, Defendant and Appellant.
Cynthia M. Jones, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton and Sabrina Y. Lane-Erwin, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. FSB1302825) OPINION APPEAL from the Superior Court of San Bernardino County. Ronald M. Christianson, Judge. Affirmed as modified. Cynthia M. Jones, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton and Sabrina Y. Lane-Erwin, Deputy Attorneys General, for Plaintiff and Respondent.
After a night of drinking with defendant Raymond Salgado's sisters, Jane Doe passed out in the front seat of a van, in front of the Salgado residence. Defendant, aroused at seeing her there, removed her pants, digitally penetrated her, and led her into the residence where he had sex with her on a couch while she was unconscious. Defendant's brother called police after seeing the half-naked female on the couch. Defendant was convicted by jury of kidnap with intent to rape (Pen. Code, § 209, subd. (b)), two counts of raping an unconscious person (§ 261, subd. (a)(4)), and one count of penetration with a foreign object on an unconscious person (§ 289, subd. (e)). He was sentenced to a term of life in prison with possibility of parole for the kidnap, a consecutive term of six years for rape of an unconscious person, and two concurrent terms of six years for the remaining counts. He appealed.
All further statutory references are to the Penal Code, unless otherwise indicated.
On appeal, defendant argues that (1) the instruction relating to the aggravated kidnap failed to adequately inform the jury that the movement must cause a "criminologically significant" increased risk of harm to the victim; (2) the court failed to instruct the jury on simple kidnaping as a lesser included offense within the charge of aggravated kidnap, and (3) the concurrent terms for two of the sex offenses violated section 654. We modify the sentence but otherwise affirm.
BACKGROUND
Jane Doe had been friends with Precious Salgado since they were in elementary school, and she knew all of Precious's brothers and sisters, including defendant. On the evening of July 1, 2013, Jane Doe walked to the Salgado residence, with her one-year-old child in a stroller, at about 5:00 p.m., to meet Precious, but Precious was not home. Instead, Precious's and defendant's sisters Beatrice and Juanita were there. Doe hung out with defendant's sisters while waiting for Precious.
At about 7:00 p.m., Doe's mother came by and picked up Doe's child. After her mother left, Doe and Beatrice drove in the latter's van to a store to buy alcohol. Beatrice had to accompany Doe because Doe was underage. With money provided by Doe, Beatrice purchased some 40 ounce bottles of beer, a shot, and a Cobra for defendant. Jane Doe drank one shot and a 40-ounce beer before leaving with Beatrice and Juanita to go to the Déjà Vu strip club where Precious worked, to give Precious a ride home. They left in Beatrice's blue Aerostar van.
The record does not describe the nature of the "shot," although Doe testified she drank a "Strawberita," and Beatrice described it as a "fancy drink."
"King Cobra" is an American Malt liquor. (See http://www.anheuser-busch.com/s/uploads/King-Cobra-Fact-Sheet.pdf.)
At the club, Beatrice and Jane Doe purchased a pitcher of beer to share. Precious sent over some shots of something blue in color, and Jane Doe drank one of them in addition to the beer. The women were at the club for two or three hours. When Precious got off work and the women were getting ready to leave, it was apparent that Jane Doe was under the influence of alcohol.
Beatrice described a drink called "Adios Motherfucker" that was blue in color that the women each drank.
On the way home from the club, Jane Doe fell asleep in the van, where she sat in the front passenger seat. The three sisters (Beatrice, Juanita, and Precious) stopped at a Del Taco drive-through to get something to eat on their way home. While in the drive-through, it appeared Doe was going to vomit, so Beatrice leaned across Doe to open the passenger door so she could throw up outside the vehicle. Jane Doe fell out. With Precious pulling Jane Doe from within the van, while Beatrice and Juanita pushed her back into the van from outside, the sisters positioned her in the seat and fastened her seatbelt. After they got back into the van, they picked up their food order and left, dropping Precious off at her boyfriend's residence before driving to the Salgado residence.
Juanita testified that Doe's seatbelt kept her from falling all the way out of the van, but Beatrice testified that Jane Doe fell out of the van and onto the ground.
Upon arrival at the residence, Beatrice and Juanita could not get Doe to wake up. After several minutes, the two sisters went into the house to go to bed, leaving Doe in the front passenger seat of the van. Defendant was in the living room at the computer when the sisters came in. David Salgado, defendant's brother, had been asleep on a mattress in the living room at that time. He heard something about someone being passed out in the car, and fell back to sleep.
Later David heard the door and saw defendant carrying someone inside, with his arms around the waist of the person. Again he fell back to sleep. He was aware of hearing defendant breathe heavily and then saw defendant get up and go to the bathroom. Curious, David looked over to the couch where he saw a female with her legs spread open, and no underwear. Thinking that the unconscious female was his sister Precious, David called the police.
Patrolman Erik Reynolds was dispatched to the Salgado residence in response to the 911 call, and entered the house to find defendant sitting on a chair in the living room, and an unconscious female on the couch. The officer could smell alcohol on the unconscious woman. Another officer removed a blanket that had been draped over Doe to find that she was naked from the waist down, although someone had tried to pull some sweats up on her. Because the officers could not rouse Doe, and because her breathing sounded labored, she was taken to the hospital, finally regaining consciousness in the ambulance.
Officer Reynolds spoke to defendant, who did not exhibit any signs of intoxication, to find out what had happened. Defendant told the officer he had seen Doe, unconscious, in the front passenger seat of the van, when he went outside to urinate. He became sexually aroused and went over to her. He began to fondle her and wanted to help her inside the house. He pulled off her panties, bunched them up and put them on the door handle of the van. He took a long look and wanted to "cop a feel" but she was beginning to vomit and urinated. Defendant helped her out of the vehicle, and while she was on her hands and knees, throwing up, he removed her pants. Defendant pulled Doe up and her pants came off. When defendant saw her, he was aroused.
No evidence of vomit was found anywhere near the vehicle, and there was no urine smell on her shorts or underwear, although her shorts were damp. --------
Defendant walked Doe into the house and placed her on the couch. He masturbated for a while to get an erection, then got on top of her and penetrated her vagina with his penis. Worried about getting Doe pregnant, defendant withdrew and put a condom on, then penetrated her again. After he ejaculated, he flushed the condom down the toilet. Defendant attempted to put a pair of his sweat pants on her, but he was unable to get them all the way up because of her weight. He thought his brother had seen him.
Defendant was aware that Doe was inebriated and could not reject him. He admitted to the officer that he moved Doe from the vehicle to the house in order to have sex with her. The distance from the vehicle to the front door was approximately 20-25 feet.
Defendant was charged with kidnap with intent to rape (§ 209, subd. (b)(1), count 1), two counts of rape of an unconscious person (§ 261, subd. (a)(4), counts 2, 4), two counts of rape of a person prevented from resistance by intoxication (§ 261, subd. (a)(3), counts 3, 5), a count of penetration with a foreign object of a person prevented from resistance by intoxication (§ 289, subd. (e), count 6) and a count of penetration with a foreign object of an unconscious person, (§ 289, subd. (d), count 7.)
Following a trial by jury, defendant was convicted of counts 1, 2, 4, and 7. At sentencing, the court imposed a term of life with possibility of parole for count 1, a consecutive term of six years for count 2, and concurrent terms of six years each for counts 4 and 7. Defendant appealed.
DISCUSSION
1. The Court Properly Instructed the Jury on the Elements of Aggravated Kidnaping.
Defendant argues that CALCRIM No. 1203, relating to the crime of kidnap with intent to rape, fails to adequately explain that section 209, subdivision (b) requires a finding beyond a reasonable doubt that the movement caused a "criminologically significant increase" in the risk of harm to the victim. We disagree.
Upon an appeal taken by the defendant, we may, without an objection having been taken in the trial court, review any instruction given, refused or modified, even though no objection was made in the lower court, if the substantial rights of the defendant were affected thereby. (§ 1259.) However, 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. (People v. Mackey (2015) 233 Cal.App.4th 32, 106, citing People v. Tuggles (2009) 179 Cal.App.4th 339, 364.)
In reviewing a claim that the court's instructions were incorrect or misleading, we must determine whether there is a reasonable likelihood the jury understood the instructions as asserted by the defendant. (People v. Hernandez (2010) 183 Cal.App.4th 1327, 1332, citing People v. Cross (2008) 45 Cal.4th 58, 67-68.) We consider the instructions as a whole and assume the jurors are intelligent persons capable of understanding and correlating all the instructions. (People v. Ramos (2008) 163 Cal.App.4th 1082, 1088, quoting People v. Yoder (1979) 100 Cal.App.3d 333, 338.) We make our determination using the independent or de novo standard of review. (People v. Ramos, supra, 163 Cal.App.3d at p. 1088; see also People v. Cole (2004) 33 Cal.4th 1158, 1211.)
Aggravated kidnapping is defined in section 209, subdivision (b)(1), which states: "Any person who kidnaps or carries away any individual to commit robbery, rape, spousal rape, oral copulation, sodomy, or any violation of Section 264.1, 288, or 289, shall be punished by imprisonment in the state prison for life with the possibility of parole." Subdivision (b)(2) states: "This subdivision shall only apply if the movement of the victim is beyond that merely incidental to the commission of, and increases the risk of harm to the victim over and above that necessarily present in, the intended underlying offense." Thus, aggravated kidnaping requires movement of the victim that is not merely incidental to the commission of the target offense (such as robbery or rape), and which substantially increases the risk of harm over and above that necessarily present in the crime of robbery (or rape) itself. (People v. Rayford (1994) 9 Cal.4th 1, 12.)
As to the first prong, whether the movement is merely incidental to the target crime, the jury considers the "scope and nature" of the movement, including the actual distance a victim is moved. (People v. Rayford, supra, 9 Cal.4th at p.12, citing People v. Daniels (1969) 71 Cal.2d 1119, 1139; see also, People v. Vines (2011) 51 Cal.4th 830, 870.) However, there is no minimum number of feet that a defendant must move a victim in order to satisfy the first prong. (Vines, supra, 51 Cal.4th at p. 870; Rayford, supra, at p. 12, citing Daniels, supra, at p. 1128.) 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 robbery (or rape). (Rayford, supra, 9 Cal.4th at p. 13.) "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." (Id., at p. 13.)
The jury was instructed under CALCRIM No. 1203, respecting the elements of aggravated kidnaping. As it pertained to the element of asportation, the court read, ". . . [¶] 4. The other person was moved or made to move a distance beyond that merely incidental to the commission of a rape or sexual penetration; [¶] 5. When that movement began, the defendant already intended to commit the rape or sexual penetration; . . . [¶] . . . [¶] As used here, substantial distance means more than a slight or trivial distance. The movement must have increased the risk of physical or psychological harm to the person beyond that necessarily present in the rape or sexual penetration. In deciding whether the movement was sufficient, consider all the circumstances relating to the movement."
Published case law has considered the adequacy of CALCRIM No. 1203 as it pertains to the asportation element, and found the instruction to be proper. (See People v. Curry (2007) 158 Cal.App.4th 766, 781.) Given that the instruction included the concept of "substantial" in connection with "increase" in the risk of harm to the victim, we have no quarrel with it. Nothing in the language of section 209, subdivision (b) requires a jury to be instructed that the asportation must result in a "criminologically significant increase" in the risk of harm; in fact, there is not even a requirement that the jury be instructed that the asportation result in a "substantial increase" in the risk of harm. (See People v. Robertson, supra, 208 Cal.App.4th at pp. 980-982 [holding that, after the 1997 legislative amendment to section 209, subdivision (b), the prosecution was not required to prove that the kidnaping "substantially increased" the victim's risk of harm].)
Defendant does not point to any authority holding that the crime of aggravated kidnap requires proof of "criminologically significant increase" of risk of harm as an element, so the trial court was not required to explain such a term sua sponte. To the extent he contends such a term was needed to amplify or clarify the aggravated kidnap instruction, defendant was required to request such an instruction. (People v. Mackey, supra, 233 Cal.App.4th at p. 106.)
Defendant relies on the holding of People v. Hoard (2002) 103 Cal.App.4th 599, for the propositions that a brief movement inside the premises where a robbery was committed is considered incidental to the crime and does not substantially increase the risk of harm otherwise present, as well as that removal of the victim from public view does not, in itself, increase the risk of harm. The analysis of Hoard does not aid our resolution of the issue because that case involved the sufficiency of evidence, and did not involve an instructional challenge. In any event, the movement of Doe in the present case from the exterior of the house, in public view, to the interior of the house, out of public view, was more than incidental, because it aided defendant in eluding detection, one of the Rayford factors. (Rayford, supra, 9 Cal.4th at p. 13.)
CALCRIM No. 1203, as given here, which includes the qualifier "substantial" in describing the requisite increase of risk of harm, despite the absence of that term in the statutory language, was proper. The statutory language of section 209 subdivision (b) requires only that the asportation be "beyond that merely incidental to the commission of, and increases the risk of harm" to the victim. (§ 209, subd. (b)(2).) It does not require proof of movement of a "criminologically significant" distance or degree. The instruction was proper.
2. The Court Was Not Required to Instruct the Jury on the Lesser Offense of Simple Kidnap Where No Evidence Supported Such an Instruction.
Defendant argues that the trial court erred by failing to instruct the jury as to the elements of simple kidnap, section 207, as a lesser offense included in the greater offense of aggravated kidnap. We disagree.
A trial court must instruct the jury sua sponte on a lesser included offense only if there is substantial evidence, '""'that is, evidence that a reasonable jury could find persuasive"' [citation], which, if accepted, '"would absolve [the] defendant from guilt of the greater offense' [citation] but not the lesser" [citation].' [Citation.]" (People v. Licas (2007) 41 Cal. 4th 362, 366; see also, People v. Waidla (2000) 22 Cal.4th 690, 733.)
Substantial evidence is evidence from which a jury could conclude beyond a reasonable doubt that the lesser offense was committed. (People v. Simon (2016) 1 Cal.5th 98, 132.) "Speculative, minimal, or insubstantial evidence is insufficient to require an instruction on a lesser included offense." (Ibid, citing People v. Mendoza (2000) 24 Cal.4th 130, 174.) "'A trial court need not . . . instruct on a lesser included offenses when the evidence shows that the defendant is either guilty of the crime charged or not guilty of any crime. . . . ' [Citations.]" (People v. King (2010) 183 Cal.App.4th 1281, 1319.)
In the present case, defendant admitted to the police that he took Jane Doe into the house for the purpose of having sex with her. He knew she was drunk to the point of being passed out, and that, as a result, she could not reject him. Insofar as he intended to have sex with an unconscious victim at the time he decided to "help" her into the house, any suggestion that his conduct was no greater than a simple kidnap would be based on speculative evidence. The evidence here showed defendant was guilty only of the crime charged, so an instruction on simple kidnap was not required.
3. The Sentence Must Be Modified to Stay the Term for One Rape Count.
Defendant argues that the sentences for the sexual offenses in counts 2 and 4 must be stayed pursuant to section 654, where the kidnap was committed for the purpose of raping the victim. Defendant argues that because both rapes were incident to the same criminal intent or objective, they should both be stayed as the target offenses. The People agree that one count must be stayed pursuant to section 654. We agree with the People.
Section 654 provides that 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); People v. Latimer (1993) 5 Cal.4th 1203, 1207.) Section 654 thus prohibits punishment for two offenses arising from the same act. (Latimer, supra, at p. 1208, citing Neal v. State of California (1960) 55 Cal.2d 11, 18.)
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 the offenses are incident to a single objective, the defendant may be punished for any one of such offenses but not for more than one. (People v. Capistrano (2014) 59 Cal.4th 830, 885, citing People v. Rodriguez (2009) 47 Cal.4th 501, 507.) The temporal proximity of the acts or offenses does not govern. (People v. Harrison (1989) 48 Cal.3d 321, 335.)
"'A person who commits separate factually distinct crimes, even with only one ultimate intent and objective, is more culpable than the person who commits only one crime in pursuit of the same intent and objective.' [Citation.]" (People v. Correa (2012) 54 Cal.4th 331, 341.) Because an offender who commits multiple sexual assaults against a victim is more culpable than a defendant who commits but a single act, section 654 does not prohibit multiple punishment for each sexual assault where the offender commits multiple sex offenses against his victim. (Harrison, supra, 48 Cal.3d at p. 336.)
Section 654 does not preclude punishment for each sex crime committed during a continuous 45-to-60-minute attack (or, as here, a 35 minute attack), notwithstanding a defense assertion that they are part of an indivisible transaction furthering a single intent and objective of obtaining sexual gratification. (People v. Perez (1979) 23 Cal.3d 545, 552, 553 [reasoning that a defendant who attempts to achieve sexual gratification by committing a number of base criminal acts is more culpable than a defendant who commits only one such act].)
Here, the defendant's objective in committing the kidnap offense was to rape Jane Doe. However, during the 35 minute assault, he penetrated her vagina with his penis twice, and digitally penetrated her. One of the terms for the rape convictions must be stayed because rape was the target of the kidnap for rape offense. But it would create a windfall to defendant to stay the terms on the other two sex offense convictions where he is more culpable than an offender who kidnaps a victim and commits only one sex offense. Imposition of one determinate sentence as punishment for one rape is proper. We therefore direct that the sentence be modified to stay the concurrent term imposed for count 4. The concurrent term for count 7, the penetration with a foreign object count, is affirmed.
DISPOSITION
The sentence is modified to stay the concurrent term imposed for count 4. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J.
We concur:
HOLLENHORST
J.
MCKINSTER
J.