Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County. Super. Ct. No. RIF135668 Mark E. Johnson, Judge.
Sharon G. Wrubel, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Gary W. Schons, Assistant Attorney General, Barry Carlton, and Gary W. Brozio, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
McKinster J.
Defendant and appellant Mark Herbert Warren was convicted of kidnapping for ransom, with a finding that he caused the victim to suffer bodily harm and intentionally confined her in a manner exposing her to a substantial likelihood of death, in addition to other charges and allegations. He was sentenced to life in prison without the possibility of parole. On appeal, he contends that there was insufficient evidence to support the bodily harm and substantial likelihood of death allegations. He also contends that the evidence was insufficient as a matter of law to support his conviction on charges of unauthorized use of identifying information against eight victims.
We agree that the convictions for identity theft cannot stand. However, we will otherwise affirm the judgment.
PROCEDURAL HISTORY
Defendant was charged with one count of kidnapping for ransom, with the allegations that he caused the victim to suffer bodily harm and intentionally confined her in a manner exposing her to a substantial likelihood of death. (Pen. Code, § 209, subd. (a); count 1). The information also alleged that he used a dangerous and deadly weapon, a stun gun, in commission of the kidnapping. (§§ 12022, subd. (b)(1), 1192.7, subd. (c)(23).) He was also charged with residential burglary and assault with a deadly weapon, with the allegation that he personally used a dangerous and deadly weapon, a stun gun, in the commission of both offenses. (§§ 245, 459, 12022, subd. (b)(1), 1192.7, subd. (c)(23); counts 2 & 3.) The information also alleged 10 counts of obtaining personal identifying information to obtain and attempt to obtain credit, goods and services in the names of the victims of each count. (§ 530.5, subd. (a); counts 4-13.) The information also alleged a number of factors in aggravation for sentencing purposes.
All statutory citations herein refer to the Penal Code unless another code is specified.
The trial court granted defendant’s motion for acquittal as to counts 5 and 7 (identity theft) only. The jury returned guilty verdicts and true findings on all remaining counts and allegations. The court sentenced defendant to life in prison without possibility of parole on count 1, with a consecutive determinate term of eight years eight months on the remaining counts and enhancements.
Defendant filed a timely notice of appeal.
FACTS
During the late morning of March 21, 2007, Linda Boecker (hereafter Linda) returned home from the real estate office where she worked with her husband. Shortly after she returned home, the doorbell rang. She looked out the window and saw a van labeled “Overnight Delivery” in the driveway. She opened the door and saw defendant, who was holding a white envelope and a clipboard. When she stepped outside to sign for the letter, defendant grabbed her. Linda struggled and screamed to attract attention. She fought hard to free herself. During the struggle, she heard a buzzing noise and felt stinging sensations on her legs and other parts of her body. At some point, she kicked a stun gun out of defendant’s hand. Defendant eventually managed to drag her into the house, where he threw her onto the floor and handcuffed her. He tied her ankles with rope and put the stocking cap he had been wearing over her head and face.
Defendant took several Polaroid photographs of Linda, then carried and dragged her out to the van and placed her in a plywood box which had been built into the van. There was a mattress inside the box and the sides and top of the box were padded. Defendant closed the door to the box and then drove away from the house.
Linda felt cramped and uncomfortable inside the box, and it was getting hot and she felt that her air was getting short. The handcuffs were very tight and painful. After some period of time, the van stopped and defendant opened the box. He told Linda that she was going to make a phone call. He asked if she thought that her husband thought she was worth $100,000. He asked for her husband’s office phone number. After dialing the number on Linda’s cell phone, he removed the stocking cap just enough to allow Linda to speak on the phone. He told her to tell her husband that she was at home and that she had fallen and needed him to come home to help her get up. She complied. Afterward, she told defendant that the handcuffs were very painful and that she was not “going to last very long” unless he loosened them. He said that if she was good, he might loosen them later. He pulled the stocking cap back over her mouth and shut her into the box. He then drove off again.
Linda’s husband went home in response to his wife’s call. He found an envelope addressed to his first name. The envelope contained a ransom note demanding $140,000 and giving extremely detailed instructions. It also contained two Polaroid photos of his wife hogtied with a hood over her head. He called a person he knew at his bank and asked him to call the police. He faxed the ransom note to the bank. He then went to the bank to try to get the money. Riverside police were there when he arrived.
Defendant continued to drive the van to different locations. Linda estimated that they stopped 14 to 16 times, approximately every 20 to 25 minutes, and that defendant opened the door to give her air 10 times. He also replaced the handcuffs with plastic ties, but her hands remained tied in front of her and her feet were also tied. She was lying on one side inside the box and her shoulder was sore. The box was hot and she continued to worry about running out of air. Defendant gave her water at several stops and once offered her some Ensure, which she declined to drink. During the day, she was required to call her husband several more times to find out what progress he was making in getting the ransom money.
During the van’s final stop, a resident in the area saw defendant pacing around outside the van and talking on a cell phone, and thought his actions seemed suspicious. The resident called the sheriff’s department, and a deputy was dispatched to the location. The deputy asked defendant if he could look inside the van. Defendant agreed. The deputy saw the plywood box and saw the lower part of Linda’s body inside it. He asked defendant what was going on. Defendant told him that it was a kidnapping, and that he had kidnapped Linda that morning. Linda was bound hand and foot but did not appear to be seriously injured. She had a cut over one eye which was not bleeding and did not require immediate treatment. She said she was scared but did not say that she was hurt.
The cut over Linda’s eye required closure with Dermabond and left a scar. She had numerous bruises and scrapes from the initial struggle with defendant, including a black eye. The bruises lasted two to three weeks. Her wrists remained sore and numb for seven to nine months.
A search of defendant’s van revealed a stun gun, a wig, mustache wax (which defendant used to darken his beard), and a file folder which contained detailed information on Linda and her husband and instructions defendant had written to himself concerning the kidnapping. The plywood box had pipes built into each corner containing battery-operated fans for ventilation. The box was padded with sheets, blankets and mattresses. A search of the motel room where defendant had been staying revealed, among other things, a number of files containing information on other potential kidnapping victims. (We discuss this evidence in more detail below.)
Defendant testified that he was having financial difficulties and needed $140,000 to keep his contracting business operating so that he could pay off other debts. He considered committing a robbery but did not want to take the risk of injuring someone. He decided on a kidnapping for ransom because he could better control the events and avoid any injury to the victim beyond that which was incidental to seizing a victim. He wanted to avoid targeting anyone who had young children or who was elderly or susceptible to heart attack or illness. He looked into several potential victims, but Linda best fit his criteria. He armed himself with a stun gun but did not intend to use it except to intimidate Linda. He made every effort to make Linda as comfortable as he could during the kidnapping, and he intended to release her and inform her husband of her location whether he received the ransom or not.
LEGAL ANALYSIS
1.
SUFFICIENT EVIDENCE SUPPORTS THE FINDING THAT THE KIDNAPPING CAUSED BODILY HARM
Section 209, subdivision (a) (hereafter section 209(a)) provides for a penalty of life in prison without possibility of parole if the kidnapping victim “suffers death or bodily harm, or is intentionally confined in a manner which exposes that person to a substantial likelihood of death.” Defendant contends that the evidence, even viewed in the light most favorable to the verdict, does not support a finding either that Linda suffered bodily harm or was confined in a manner which exposed her to a substantial likelihood of death.
Penalty enhancement findings must be supported by substantial evidence, i.e., evidence which, when viewed in the light most favorable to the verdict, would allow a reasonable trier of fact to find the enhancement allegation true beyond a reasonable doubt. (People v. Ochoa (1998) 19 Cal.4th 353, 413-414.)
“The interpretation of the applicable statute is a question of law. [Citation.] The determination of the historical facts is committed to the jury. We ‘“must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” [Citation.] We “‘presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.’” [Citation.]’ [Citation.] Whether the facts (when so viewed) meet the statutory standard (when so construed) is a question of law.” (People v. Centers (1999) 73 Cal.App.4th 84, 91 [Fourth Dist., Div. Two].)
A.
Substantial Likelihood of Death
For purposes of section 209(a), a kidnapper exposes the victim to a “substantial likelihood of death” if he or she “intentionally increases, by a certain degree, the risk of death otherwise inherent in kidnapping. [Citation.]” (People v. Serrano (1992) 11 Cal.App.4th 1672, 1676.) A “substantial likelihood” is greater than a “mere possibility.” (Ibid.)
Defendant contends that Linda was not exposed to a substantial likelihood of death because he did not use a deadly weapon, selected a victim who “was not too old and would not be at risk of heart problems or illness, ” and neither subjected her to serious injury nor attempted to escape in any dangerous fashion. He points out that when he was confronted by law enforcement, he promptly gave himself up and did not attempt to evade capture. He contends that merely driving her around in the van did not create a substantial likelihood of death. The only possible risk to which he subjected Linda was lack of air, but, he contends, there was no substantial risk of death because, during the six hours she was confined in the box in the back of the van, he opened the doors approximately every 20 to 25 minutes and “eventually rigged the door so she could get more air.”
We agree with defendant that driving the victim in a vehicle does not in itself create a substantial likelihood of death; escaping in a vehicle from a prison or juvenile detention center, where armed pursuit is likely, or driving at high speed to evade pursuit, as in People v. Chacon (1995) 37 Cal.App.4th 52 (see id. at pp. 58-59, 61), does create such a likelihood, as does driving while holding the victim at gunpoint (see, e.g., People v. Centers, supra, 73 Cal.App.4th at pp. 94-95). None of those things happened in this case. The fact that a pursuit or an accident might have occurred, as the Attorney General points out, is not enough to create a substantial likelihood, as opposed to a mere possibility, of death.
Nor, contrary to the Attorney General’s contention, did defendant use the weapon as a means of confining Linda, as was done in People v. Chacon, supra, 37 Cal.App.4th 52. In that case, the victim was taken hostage and then stabbed and beaten unconscious, which arguably constituted part of the confinement. (Id. at pp. 58-59.) Here, defendant used the stun gun only during his struggle to subdue Linda; he did not use it after he had her subdued and confined.
The Attorney General also argues that confining Linda inside a “coffin-like box” exposed her to a substantial likelihood of suffocation. Again, however, we disagree. Although she might have suffocated if defendant failed to stop frequently to open the doors to give her additional air—the ventilation system defendant built into the box apparently did not work—defendant did not leave her without ventilation for prolonged periods, thus obviating any substantial likelihood of suffocation. And, the mere possibility that some event might occur which would render him incapable of providing ventilation does not elevate the risk to a substantial likelihood. Consequently, we agree with defendant that the finding of substantial likelihood of death was not supported by substantial evidence.
B.
Infliction of Bodily Injury
Section 209(a) does not define “bodily harm.” In People v. Jackson (1955) 44 Cal.2d 511, the California Supreme Court assumed that in enacting the bodily harm provision of section 209(a) the Legislature intended to reserve the most severe penalty for cases in which the victim suffered significant bodily harm, in order both to make the punishment commensurate with the severity of the crime and to deter kidnappers from seriously injuring or killing their victims. The court went on to say that if relatively trivial injuries were found to constitute bodily harm for purposes of section 209(a), “the kidnaper might well reason that the better course for him would be to kill the victim to minimize the probability of identification.” (Jackson, at p. 517.) Accordingly, the court found that the sole injury suffered by the victim in that case, i.e., that his wrists were bound tightly enough to “cut in” without breaking the skin but impairing circulation “to some extent, ” was too trivial to constitute bodily injury within the meaning of section 209(a). (Jackson, at pp. 516-517.)
“Kidnap, ” in its past tense and participial forms, may be spelled with one “p” or two. (See [as of May 4, 2011].) The older cases tend to use the single “p” spelling. However, the current preferred form uses two “p”’s (ibid.), and more recent cases use this spelling. (See, e.g., People v. Chacon, supra, 37 Cal.App.4th at p. 56, and passim; People v. Centers, supra, 73 Cal.App.4th at p. 88, and passim.) We will use the single-“p” form only in material directly quoted from sources which use that form.
Following People v. Jackson, supra, 44 Cal.2d 511, subsequent cases have held that the bodily injury enhancement is properly invoked “whenever the victim has endured or sustained substantial bodily or physical injury unnecessarily and gratuitously inflicted by the kidnaper or proximately caused as a foreseeable consequence of the kidnaper’s intentional acts.” (People v. Shoenfeld (1980) 111 Cal.App.3d 671, 686, and cases cited therein.) Stated another way, the bodily harm enhancement requires “1) a substantial or serious injury to the body of the kidnaped victim, 2) by application of a physical force, 3) beyond that necessarily involved in the forcible kidnaping.” (Id. at p. 685; see also People v. Chacon, supra, 37 Cal.App.4th at p. 59.)
Consistent with these principles, a reasonable trier of fact could conclude that Linda’s injuries were substantial. The court, in viewing the photographs taken of Linda immediately after the kidnapping, said that she looked as though she had been “pretty beat up” and “really, really... beat up pretty well.” The cut over her eye, which required suturing or closure with Dermabond, resulted in a scar. Further, her wrists were sore and numb for seven to nine months, which probably indicates some degree of nerve damage. She had numerous bruises which lasted two to three weeks, as well as scrapes and abrasions. Her injuries required her to take two weeks off work.
Defendant also contends that because a certain amount of force or violence is inherent in kidnapping, the type and degree of injury Linda suffered is merely incidental to the force necessary to effect the kidnapping. Unlike simple kidnapping, however, kidnapping for ransom, in violation of section 209(a), does not require either asportation or the use or threat of force; rather, it can be accomplished by fraud, as by luring the victim to a place where he or she is confined. (People v. Eid (2010) 187 Cal.App.4th 859, 877-878 & fn. 14; People v. Davis (1995) 10 Cal.4th 463, 517 & fn. 13.) Here, defendant chose to grab his victim and forcibly wrestle her to the ground rather than intimidating her into submission by the display of the stun gun or another weapon, which, somewhat ironically, is what he said he planned to do because he was anxious to avoid injuring his victim. It was certainly foreseeable that Linda would fight back and that she would be injured. In addition, there was no need for defendant to leave the handcuffs in place after Linda told him they were very tight and very painful. He had other, less painful and probably less injurious means of restraint, but chose not to use them until it suited him. This was clearly not necessary in order to carry out the kidnapping nor to keep Linda confined, and the prolonged pressure on her wrists resulted in pain and numbness which lasted seven to nine months. Accordingly, the jury’s finding that defendant inflicted bodily injury within the meaning of section 209(a) is supported by substantial evidence.
Defining simple kidnapping, section 207, subdivision (a) provides, “Every person who forcibly, or by any other means of instilling fear, steals or takes, or holds, detains, or arrests any person in this state, and carries the person into another country, state, or county, or into another part of the same county, is guilty of kidnapping.”
We do not mean to suggest that kidnappers “should” use weapons for intimidation. We merely hold that if a kidnapper for ransom chooses to overcome his victim with physical force, he cannot complain if the victim refuses to go quietly and is injured in the ensuing struggle.
2.
THERE IS NO EVIDENCE THAT DEFENDANT USED PERSONAL IDENTIFYING INFORMATION OF OTHERS FOR AN ILLEGAL PURPOSE
Defendant was charged, in counts 4 through 13, of violating section 530.5, subdivision (a). That statute provides, “Every person who willfully obtains personal identifying information, as defined in subdivision (b) of Section 530.55, of another person, and uses that information for any unlawful purpose, including to obtain, or attempt to obtain, credit, goods, services, real property, or medical information without the consent of that person, is guilty of a public offense, and upon conviction therefor, shall be punished by a fine, by imprisonment in a county jail not to exceed one year, or by both a fine and imprisonment, or by imprisonment in the state prison.”
As noted above, the court granted defendant’s motion for acquittal on counts 5 and 7. Accordingly, we will discuss only the evidence as it pertains to the remaining counts.
Section 530.55, subdivision (b) provides, “For purposes of this chapter, ‘personal identifying information’ means any name, address, telephone number, health insurance number, taxpayer identification number, school identification number, state or federal driver’s license, or identification number, social security number, place of employment, employee identification number, professional or occupational number, mother’s maiden name, demand deposit account number, savings account number, checking account number, PIN (personal identification number) or password, alien registration number, government passport number, date of birth, unique biometric data including fingerprint, facial scan identifiers, voiceprint, retina or iris image, or other unique physical representation, unique electronic data including information identification number assigned to the person, address or routing code, telecommunication identifying information or access device, information contained in a birth or death certificate, or credit card number of an individual person, or an equivalent form of identification.”
After defendant was arrested, officers who searched the motel room where he had been staying discovered files containing business and home addresses, telephone numbers and maps showing business and/or residence locations of a number of people. Most of the information came from public sources. Defendant had made notes about various plans and options for different kidnapping scenarios involving some of those individuals. There were also notes indicating that defendant had undertaken surveillance of some of the potential victims or had visited their homes to assess their suitability for his plans. (Similar notes and information concerning Linda and her husband were found in the van and in files on defendant’s computer after defendant was arrested.) The potential victims included Charles Dutton, Ann Harloff, Chris Leggio, Mark Leggio, Charles McKay, Glenn Moss, Michael Rasch and Deplip Singh, all of whom testified that they did not give defendant consent to collect or use this information.
Defendant contends that because there was no evidence that he used the information for any illegal purpose, his conviction on all counts of violation of section 530.5, subdivision (a) must be reversed. The Attorney General agrees, as do we.
The parties view the issue as one of substantial evidence. However, the issue is actually whether the undisputed evidence amounts to a violation of section 530.5, subdivision (a) as a matter of law. That is an issue we review independently. (People v. Villalobos (2006) 145 Cal.App.4th 310, 316, fn. 3 [Fourth Dist., Div. Two].)
“In order to violate section 530.5, subdivision (a), a defendant must both (1) obtain personal identifying information, and (2) use that information for an unlawful purpose. [Citation.] Thus, it is the use of the identifying information for an unlawful purpose that completes the crime....” (People v. Mitchell (2008) 164 Cal.App.4th 442, 455.)
The evidence is undisputed that defendant did not “use” the information he collected about the alleged victims except, in some instances, possibly to drive to their residences or businesses. In ruling on defendant’s motion for acquittal, the trial court concluded that this “surveillance” constituted an unlawful purpose. However, as the parties concur, there is no law against observing the property of another from a public street or sidewalk, and there is no evidence that defendant’s “surveillance” of the potential victims involved anything more than that. Consequently, even if defendant did a drive-by surveillance of the property of any of the alleged victims, it was not an unlawful act.
In contrast, in People v. Tillotson (2007) 157 Cal.App.4th 517, the defendant was held to have used identifying information in an unlawful manner because she attempted to have an organization conduct surveillance on a police officer in violation of a restraining order which specifically prohibited her from surveilling the officer. The surveillance was not per se an illegal act; it was illegal only because of the restraining order. (Id. at pp. 528, 533-535.)
It is also not unlawful to plan a kidnapping; the plan becomes unlawful only when the defendant takes a step, however slight, toward the actual commission of the crime and the plan ripens into an attempt. (People v. Superior Court (Decker) (2007) 41 Cal.4th 1, 8.) Mere preparation is not enough: “‘[B]etween preparation for the attempt and the attempt itself, there is a wide difference. The preparation consists in devising or arranging the means or measures necessary for the commission of the offense; the attempt is the direct movement toward the commission after the preparations are made.’ [Citations.] ‘“[I]t is sufficient if it is the first or some subsequent act directed towards that end after the preparations are made.”’ [Citation.]” (Ibid.) At that point, the plan becomes an attempt. Anything less than an attempt, or an overt act toward the commission of the target offense if the defendant is conspiring with others, does not satisfy the “unlawful purpose” element of section 530.5, subdivision (a).
Here, defendant’s acts of identifying potential kidnapping victims and observing their movements, homes or businesses amount only to preparation; there is no evidence that he took any step toward setting a kidnapping plan in motion. Consequently, he did not use the personal identifying information in an attempt to kidnap any of the individuals. Accordingly, defendant’s convictions on counts 4, 6 and 8 through 13 must be reversed and a judgment of acquittal on those counts entered. (See Burks v. United States (1978) 437 U.S. 1, 10, 18.)
Because we reverse the convictions on these counts for lack of evidence, we need not address defendant’s additional contentions concerning section 530.5, subdivision (a).
DISPOSITION
The judgment is reversed as to counts 4, 6 and 8 through 13. The judgment is otherwise affirmed.
The superior court is directed to enter judgment of acquittal on counts 4, 6 and 8 through 13 and to amend the abstract of judgment accordingly. A copy of the amended abstract of judgment and the minute order reflecting the modification of the judgment and sentence shall be forwarded to the California Department of Corrections and Rehabilitation.
We concur: Hollenhorst Acting P.J., King J.