Opinion
E032807.
11-12-2003
THE PEOPLE, Plaintiff and Respondent, v. DONALD WILLIAMS, Defendant and Appellant.
Richard A. Levy, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Kyle Niki Shaffer and Heather F. Wells, Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
A jury convicted defendant of: (1) kidnapping during the commission of a carjacking (Pen. Code, § 209.5); (2) carjacking (§ 215); (3) threatening to commit a crime which would result in death or great bodily injury (§ 422); and (4) assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(1)). Various enhancements were found true. Defendant was sentenced to life in prison, with a minimum of 49 years.
All further statutory references are to the Penal Code unless otherwise indicated.
Defendant contends that the court committed prejudicial error by failing to sua sponte instruct the jury on kidnapping, a lesser included offense of kidnapping during the commission of a car jacking. We disagree and affirm.
FACTS AND PROCEDURAL HISTORY
A. Prosecutions Case
On the evening of February 22, 2002, Nicole Jordan (Jordan), a 56-year-old school nurse, met friends at TJ Schooners, a sports bar in Moreno Valley. They watched a basketball game and played pool. While inside the bar, she stayed with friends and did not speak with anyone else. Jordan testified that she did not see defendant while in the bar. She stayed until the bar closed at 1:30 or 2:00 oclock in the morning. Upon leaving, there were groups of people standing in the lighted parking lot. She walked to her car and entered the drivers side.
When Jordan turned the ignition key, a light on her dashboard indicated that one of the car doors was open. The light had been recently malfunctioning. She looked to see that the back doors of the car were locked; she then opened the front passenger door "just a bit" so that she could shut it to make sure it was closed.
At the moment Jordan opened the passenger door, defendant, age 36, "jumped in" her car and sat in the passenger seat. Jordan "just froze." Defendant held something under his shirt, which she thought might be a gun or a knife. Defendant stated, "Drive, bitch" and instructed her to "[m]ake a left and drive." Jordan started the car and began to drive. Instead of turning left out of the parking lot, Jordan made a right turn because she saw a sign stating "no left turn." Defendant appeared agitated and nervous. After making the initial right turn, Jordan made a U-turn toward Alessandro Boulevard. Defendant then instructed Jordan to make a right turn onto Alessandro Boulevard, which she did. Defendant told Jordan, "Drive, Bitch," or "Drive the car, Bitch, or I [sic] kill you."
After turning onto Alessandro Boulevard, defendant told Jordan, in a threatening manner, that he wanted her to "suck his dick." Jordan told him she "would not do such a thing and that he should let [her] go." Defendant stated that he had been to jail, he could kill her, and he had nothing to lose. She tried talking to him about her religion and how she was not afraid to die. But each time she tried to say something, defendant told her, "Shut the fuck up, Bitch."
Defendant continued to instruct Jordan where to drive. Jordan kept asking to be let go, but defendant just kept screaming, "Shut the fuck up, Bitch, drive." He directed her to the driveway of an Econo Lodge motel, where he told her to get out of the car. When Jordan hesitated, defendant hit her twice in the face. He reached over her, pushed open the drivers door, and pushed her out of the car. Defendant then drove out of the Econo Lodge driveway.
Jordan walked to the front of the motel and knocked on the night window; she received no response. Jordan then used her cell phone to call 911. (She retrieved the phone from her purse, which had remained strapped around her shoulder during the drive.)
Although the recording of the transcript of Jordans 911 call was played for the jury, the court reporter did not transcribe the recording during trial. Neither the recording of the 911 call nor the transcript of the recording were included in the record on appeal.
At approximately 3:35 a.m. on February 23, 2002, police officer Claudio Franco (Franco) observed defendant driving Jordans car at a high rate of speed on a freeway. Franco made a traffic enforcement stop of the vehicle. Defendant gave Franco false information about his name, the owner of the car, and why he possessed the car. After conducting field sobriety tests, Franco arrested defendant for driving under the influence of alcohol. While defendant was in the back of Francos patrol car, a radio report was received by Franco stating that defendants name was Donald Williams. Defendant told Franco, "Yeah, thats me. I lied to you." The dispatch operator also told Franco that the car had been reported stolen.
Three days later, defendant was interviewed by Brian Fountain (Fountain), a Riverside County Sheriffs Department investigator. Defendant told Fountain "that he borrowed the car for 20 bucks and didnt know it was stolen." Defendant said he did not know the name of the person from whom he borrowed the car. Fountain said he thought defendant was lying and asked whether defendant was at TJ Schooners the night of the incident. Initially, defendant denied being there. Later he said he was there but did not go inside, and still later he indicated that he did go inside. Defendant then told Fountain he saw an older white woman in the bar and approached her because he wanted to have sex with her. Defendant said the woman asked him for some cocaine; he told her he knew where he could get some. Defendant told Fountain that he saw the woman leave the bar and get into her car. Defendant said the woman invited him into her car. He indicated to her that he knew where he could get some cocaine. He told Fountain they drove to the Econo Lodge motel and knocked at the door of a room, but no one answered. He stated he left the woman at the motel while he drove to Pomona to get some cocaine.
B. Defense Case
Defendant testified on his own behalf. He said he met Jordan at TJ Schooners on the night in question. Jordan told him she was not married and that she was not doing anything at the end of the night. Jordan asked defendant if he knew where she could "score any drugs." Defendant said that he did not know, but that they could "hook up" at the end of the night. Defendant told a friend of his who was at the bar that he and "the girl [he] met in the club" were "going to be kicking it and have a nice time or whatever." Later, he saw Jordan get in her car outside the bar. When he knocked on the car window, she opened the door for him and he got in. The two said a few words, then drove off to find someone who could supply them with drugs. Defendant denied that he told or asked Jordan to orally copulate him.
Eventually, they went to the Econo Lodge to meet an acquaintance of defendants, who he thought had drugs. He knocked on the door of one of the motel rooms, but received no answer. He then told Jordan he knew someone from whom he could get some "stuff" and that it would take 20 to 25 minutes. Defendant told Jordan to wait at the motel room and that the acquaintance would return to the room in five or ten minutes. Defendant told her he would be back in less than 30 minutes.
Defendant testified that he did not threaten or hit Jordan, and that he did not have a gun or pretend to have a gun. He further stated that she consented to his taking the car and that she was "fine" when he left the motel.
On the way to get drugs in Pomona, he was pulled over by Franco. He admitted to initially giving the officer a false name. He did not tell the officer the truth about the reason for having the car because he did not want to tell the police he was using the car to get drugs. He did not tell the truth to investigator Fountain because he figured that "some kind of foul play" happened to Jordan after he left her at the motel.
DISCUSSION
Defendant was convicted of, among other crimes, kidnapping during the commission of a carjacking. (§ 209.5, subd. (a).) Defendant contends that, in addition to instructing the jury on the above crime, the court should have sua sponte instructed on the lesser included offense of kidnapping. (§ 207, subd. (a).) We disagree.
Section 209.5, subdivision (a), provides that "[a]ny person who, during the commission of a carjacking and in order to facilitate the commission of the carjacking, kidnaps another person who is not a principal in the commission of the carjacking shall be punished by imprisonment in the state prison for life with the possibility of parole."
"`Carjacking is the felonious taking of a motor vehicle in the possession of another, from his or her person or immediate presence, or from the person or immediate presence of a passenger of the motor vehicle, against his or her will and with the intent to either permanently or temporarily deprive the person in possession of the motor vehicle of his or her possession, accomplished by means of force or fear." (§ 215, subd. (a).)
The People concede that kidnapping is a lesser included offense of kidnapping to facilitate a carjacking. The People cite to People v. Greenberger (1997) 58 Cal.App.4th 298 (Greenberger) and People v. Bailey (1974) 38 Cal.App.3d 693 (Bailey) for this proposition. Greenberger did not involve a carjacking, but, rather, the question of whether kidnapping (§ 207) was a lesser included offense of aggravated kidnapping (§ 209, subd. (a)). (Greenberger, supra, at p. 368.) Bailey held that simple kidnapping is a lesser included offense of kidnapping with the intent to commit robbery. (Bailey, supra, at p. 699.) We have found no case addressing the question whether kidnapping is a lesser included offense of kidnapping to facilitate a carjacking. Nevertheless, because the People do not dispute this issue, we will assume, without deciding, that the Peoples concession on this issue is correct. (C.f. Greenberger, supra, at p. 368, fn. 56.)
Defendant contends there was substantial evidence from which a jury could have concluded that he kidnapped Jordan for a purpose other than to take the car — specifically, "to engage in sex." He argues that if the jury had been permitted to so conclude, he could have been convicted of the lesser offense of kidnapping, rather than kidnapping during the commission of a carjacking. On appeal, we conduct an independent de novo review to determine whether the trial court properly omitted a jury instruction on a lesser included offense. (People v. Waidla (2000) 22 Cal.4th 690, 733, cert. den. (2000) 531 U.S. 1018 (Waidla).)
In criminal cases, a trial court must instruct the jury on the general principles of law relevant to the issues raised by the evidence. (People v. Breverman (1998) 19 Cal.4th 142, 154 (Breverman).) This obligation includes giving instructions on lesser included offenses when there is substantial evidence the defendant has committed the lesser offense and which, if accepted, would absolve the defendant from guilt of the greater offense. (Waidla, supra, 22 Cal.4th at p. 733.) The "existence of `any evidence, no matter how weak will not justify instructions on a lesser included offense." (Breverman, supra, at p. 162.) Rather, the evidence that the defendant is guilty only of the lesser offense must be "`substantial enough to merit consideration by the jury. [Citations.] `Substantial evidence in this context is `"evidence from which a jury composed of reasonable [persons] could . . . conclude[]" that the lesser offense, but not the greater, was committed. [Citations.]" (Ibid.)
The crime of kidnapping to facilitate a carjacking requires that the kidnapping occur with the specific intent to facilitate the carjacking. (People v. Perez (2000) 84 Cal.App.4th 856, 860.) Such intent is shown where it may be reasonably inferred that the kidnapping was done to aid the offender in leaving the scene of the carjacking undetected. (Id. at pp. 860-861.) If defendant had ordered Jordan out of the car in the TJ Schoonerss parking lot and driven away by himself, Jordan could have attracted the immediate attention of others in the parking lot, preventing or inhibiting the taking of the car. By keeping Jordan in the car and ordering her to drive away from the crowded and lighted parking lot, the jury could easily infer the kidnapping of Jordan was to allow him to leave the parking lot without detection and thereby facilitate the carjacking.
Defendant does not dispute that there was sufficient evidence to convict him of kidnapping to facilitate a carjacking. Defendant contends, however, that there was also substantial evidence that he kidnapped Jordan to facilitate a sex crime. In support of this argument, he relies primarily upon the following evidence: Jordans testimony that defendant told her, after they began driving, that he wanted her to "suck his dick"; his testimony that he was "trying to pick up on" Jordan at the sports bar; his testimony that he had told a friend he "was going to be kicking it and have a nice time or whatever" with Jordan; and his statement to investigator Fountain that he approached Jordan in the bar because he wanted "to have sex with her."
Such evidence, when viewed in the context of the entire record, was not substantial enough to merit consideration by the jury of the lesser offense of kidnapping. Defendant made only one request to have Jordan orally copulate him. The record reveals no other reference by defendant to sexual activity during the time the two were in the car. Nor is there any evidence that defendant tried to touch Jordan prior to hitting her in the motel parking lot. Indeed, after she refused to perform the requested sex act, defendant responded, "Shut the fuck up, Bitch, and drive." (Italics added.) Far from constituting what defendant describes as "persistent efforts to persuade Jordan to participate in a sexual act," the record reflects a single request and Jordans refusal, followed by defendants insistence that Jordan keep driving. Defendants argument that "most or all of the drive was likely consumed with [his] demand and threats to coerce sex" is speculative. Speculation cannot support the giving of an instruction on a lesser included offense. (People v. Mendoza (2000) 24 Cal.4th 130, 174.) Nor does his testimony that he was trying to pick up Jordan in the bar and his statement to police that he wanted to have sex with her, in light of the entire record, merit the jurys consideration of the offense of simple kidnapping.
Even if such evidence was sufficient to support the theory that defendant kidnapped Jordan in order to engage in sex with Jordan, defendant must still show that such evidence "would absolve [the] defendant from guilt of the greater offense." (Waidla, supra, 22 Cal.4th at p. 733; see also Breverman, supra, 19 Cal.4th at p. 162 [evidence must be such that a jury could conclude "that the lesser offense, but not the greater, was committed" (italics added)].) Here, the evidence is overwhelming that, if a kidnapping occurred at all, defendant kidnapped Jordan with an intent to facilitate the carjacking. Jordan testified that defendant jumped into her car in a crowded and lighted parking lot. He appeared to have a weapon under his shirt and immediately ordered her to drive out of the parking lot. He then directed her to a motel parking lot, pushed her from the car, and drove away. The most reasonable inference drawn from these facts is that defendant intended to kidnap Jordan in order to facilitate the taking of the car.
Nevertheless, defendant could have had, at the time he kidnapped Jordan, an intent to commit more than one act or crime. It was possible, for example, for defendant to have had the intent to kidnap Jordan to engage in sex with her at the same time that he had the intent to kidnap her to facilitate the taking of her car. However, evidence of kidnapping Jordan with an intent to have sex with her would merely show that he could have also been guilty of simple kidnapping or kidnapping to commit rape or oral copulation. (See § 209, subd. (b)(1).) Such evidence neither negates the overwhelming evidence of defendants intent to kidnap Jordan to facilitate the carjacking nor absolves defendant from guilt of that offense. Because the evidence does not support the "conclusion that the defendant is guilty only of the lesser offense," the court had no duty to instruct the jury on the lesser offense. (See People v. Nguyen (2003) 111 Cal.App.4th 184, 207.)
Defendant further contends that "he formed the intent to take the car only after it became manifest to him that his persistent efforts to persuade Jordan to participate in a sexual act were not going to work." By "take the car," defendant refers to the taking of the car after he left Jordan at the Econo Lodge motel. A carjacking occurs, however, when the offender secures dominion and control over the vehicle. (People v. Alvarado (1999) 76 Cal.App.4th 156, 161.) The offender need not drive the car himself to have dominion or control over the car; when he threatens and instructs another to drive the car, and the driver complies against his or her will, the offender has exercised dominion and control over the car for purposes of carjacking. (People v. Duran (2001) 88 Cal.App.4th 1371, 1377.) Thus, regardless of when defendant made his decision to leave Jordan at the motel and take the car without her, his intent to "take the car" — for purposes of the carjacking statute — was evident the moment he jumped in the car and ordered Jordan to drive.
DISPOSITION
The judgment is affirmed.
We concur: Ramirez P.J. and Gaut J.