P. v. Del Valle
Filed 5/8/13 P. v. Del Valle CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE
DISTRICT
DIVISION THREE
>
THE PEOPLE, Plaintiff and Respondent, v. NEREO DEL VALLE, Defendant and Appellant. | G046289 (Super. Ct. No. 09WF1687) O P I N I O N |
Appeal from a judgment
of the Superior Court
of
County, Gregg L. Prickett, Judge. Affirmed.
Raymond M. DiGuiseppe,
under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris,
Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L.
Garland, Assistant Attorney General, Barry Carlton and Joy Utomi, Deputy
Attorneys General, for Plaintiff and Respondent.
A jury convicted
defendant Nereo Del Valle of kidnapping for the purpose of
subd. (b)),
title="">[1] and two counts of
committing lewd acts with a child under the age of 14 (§ 288, subd.
(a)). It found true allegations the acts
of child molestation occurred during a kidnapping pursuant to section 667.61,
subds. (b), (c)(4), and (e)(1), commonly referred to as the “One Strikeâ€
law. The court sentenced Del Valle to
concurrent indeterminate terms of 15 years to life for each section 288
conviction as required under the One Strike law, and imposed an 11-year
determinate term for kidnapping (§ 208, subd. (b)), which the court then
stayed under section 654.
Del Valle contends the
trial court erred by failing to instruct the jury he could not be found guilty
of kidnapping for child molestation if the victim’s movement was merely
incidental to carrying out the child molestation. We affirm.
FACTS
In August 2009, Del
Valle worked in a laundromat near the home of 11-year-old K.T. and her
family. He sold perfume out of a closet
inside the laundromat.
On August 9, K.T., came
to the laundromat with her older sister, Y.T., Y.T.’s young daughter and the
daughter’s friend, to do some laundry.
While they were there, Del Valle tried to sell them perfume, but they
declined. K.T. and Y.T. finished their
laundry and left the laundromat.
Later that day, K.T.
alone returned to the laundromat. Del
Valle was standing in the back of the building near the storage closet, and he
asked K.T. if she wanted some perfume.
This time, K.T., said yes. Del
Valle beckoned her to himself. As K.T.
walked about 12 steps to Del Valle, he opened the storage closet door, pointed
inside, and told her to go get the perfume.
When she leaned into the closet to retrieve a bottle of perfume, Del
Valle pushed her into the closet and he followed her into the closet. He then shut the door behind him and latched
the door closed.
K.T. tried to get out of
the closet and told Del Valle her mother was waiting for her, but Del Valle
would not let her leave. He handed her a
bottle of perfume, and then said “give me something.†K.T. did not understand what he meant. She repeated that her mother was waiting for
her, but Del Valle would not let her leave.
Instead, he reached down her shirt and touched her breasts. Del Valle told K.T. he would give her money
whenever she needed it. K.T. again said
she needed to go, but Del Valle reached down into her pants and touched her
vagina.
When Del Valle bent over
slightly, K.T. managed to reach behind him and unlatched the closet door. With the door unlatched, K.T. was able to
push her way past Del Valle and move outside the closet. As she moved by him, Del Valle reached for
K.T.’s buttocks. Once K.T. was outside
the closet, Del Valle told her not to tell anyone what he had done and again
offered her money. He also told her to
avoid the surveillance cameras. K.T.
left the laundromat and went home. Her
sister saw K.T. when she got home and noticed that she appeared to be “in
shock†and her eyes were red. K.T.’s sister
asked what had happened, and K.T. told her what Del Valle had done. They then reported the incident to the
police.
Responding police
officers questioned Del Valle. He told
them K.T. had returned to the laundromat that day to retrieve some laundry she
had left behind. She asked him for some
perfume, and he directed her to the storage closet. He admitted going into the storage closet
with her and closing the door. He also
admitted touching her breasts and vagina.
A Child Abuse Services
Team (CAST) member interviewed K.T. two days later. A videotape of the interview was played for
the jury at trial. K.T.’s CAST statement
is nearly identical to her trial testimony.
Plus, Del Valle’s DNA was found on K.T.’s breasts.
Del Valle testified on
his own behalf at trial. He said he
remembered the incident well. He
admitted following K.T. into the closet and latching the door behind him. However, he claimed that when K.T. insisted
she get some perfume, he touched her breasts and vagina for “just a few
moments.†He said he “didn’t even think
about†what he had done, and he called his actions “the stupid thing that I
did.†When he realized what he was doing
was wrong, Del Valle withdrew his hand.
He denied planning to touch K.T., and said he touched her on
impulse. He denied offering her money,
and claimed he gave her the perfume “because of [her] insistence.â€
DISCUSSION
Del Valle contends the
jury instructions failed to properly address the asportation element of
failed to inform the jury a guilty verdict on the kidnapping charge required
evidence K.T.’s movement was more than “merely incidental†to the underlying
child molestation. We find the
instructions as given legally correct and adequate for the jury’s understanding
of the case.
title="">[2]
A trial court is
required to instruct the jury on general principles of
law that are closely and openly connected with the evidence and necessary to
the jury’s understanding of the case. (People
v. Flannel (1979) 25 Cal.3d 668, 681, superseded on other grounds as stated
in In re Christian S. (1994) 7
Cal.4th 768, 777.) “‘
reviews the wording
of a jury
[citation], and determines
whether ‘the instructions
are complete and
correctly state the
law’ [citation].†(People v. Bell
(2009) 179 Cal.App.4th 428, 435 (Bell).)
The adequacy of the instructions is determined from an examination of
the entire charge of the court (People v. Pena (1984) 151 Cal.App.3d
462, 475), and whether it is reasonably likely that the trial court’s
instructions as a whole caused the jury to misapply the law. (People v. Cain (1995) 10 Cal.4th 1,
36.) Any one instruction “‘may not be
judged in artificial isolation,’ but must be considered in the context of the
instructions as a whole and the trial record.â€
(Estelle v. McGuire (1991) 502 U.S. 62, 72.) Furthermore, it is presumed “that jurors are
intelligent persons and capable of understanding and correlating all jury
898, 918.)
Section 207, subdivision
(b) provides: “Every person, who for the
purpose of committing any act defined in Section 288, hires, persuades,
entices, decoys, or seduces by false promises, misrepresentations,
. . . or the like, any child under the age of 14 years to go out
of this country, state, or county, or into another part of the same county, is
guilty of kidnapping.†Section 209 sets
forth the punishment for what are sometimes called aggravated kidnappings,
including kidnapping for the purpose of child molestation. (§ 209, subd. (b)(1).) Subdivision (b)(2) of section 209 provides:
“This subdivision shall only apply if the
movement of the victim is beyond that merely incidental to the commission of,
victim over and above that necessarily present in, the intended underlying offense.â€
(Italics added.)
With respect to the
kidnapping for child molestation charge, the trial court gave CALCRIM No. 1200
which stated, in pertinent part, “The defendant is charged in Count 1 with
kidnapping for the purpose of child molestation in violation of Penal Code
section 207[, subdivision] (b). [¶]
To prove that the defendant is guilty of this crime, the People must prove
that: [¶] [1.] The defendant persuaded, enticed, decoyed or
seduced by false promises or misrepresentations a child younger than 14 years
old to go somewhere; [¶] 2. When the
defendant did so, he intended to commit a lewd or lascivious act on a child;
[¶] and [¶] 3. As a result of the
defendant’s conduct, the child then moved or was moved a substantial
distance. [¶] As used here, substantial distance means more than a slight or trivial
distance. The movement must have
substantially increased the risk of physical or psychological harm to the
person beyond that necessarily present in the lewd act with a child (
sufficient, consider all the circumstances relating to the movement.†(Italics added.)
With respect to the
kidnapping for child molestation charge, the trial court also gave CALJIC No.
9.50.1 which explained, “The determination by you of whether a particular
distance moved was substantial and increased the risk of harm to the alleged
victim depends upon a consideration of the totality of the circumstances
involved in the case. [¶] Whether the
alleged victim’s movement was merely incidental to the lewd act on a child
(also referred to as child molestation) is necessarily connected to whether it
substantially increased the risk of harm to the alleged victim. Distance is simply one factor. No minimum distance is required so long as
the movement is substantial. [¶] Other
factors you should consider are the scope and nature of the movement as well as
the context of its environment, including but not limited to whether the
movement decreased the likelihood of detection, increased the danger inherent
in the alleged victim’s foreseeable attempts to escape, or enhance the
attacker’s opportunity to commit other crimes.â€
With respect to simple
kidnapping as a lesser included offense to the kidnapping for child molestation
charge, the court gave CALCRIM No. 1215 which stated, in part, “To prove that
the defendant is guilty of the crime of kidnapping, the People must prove
that: [¶] 1. The defendant took, held, or detained another
person by using force or by instilling a reasonable fear; [¶] 2. Using that force or fear, the defendant moved
the other person or made the other person move a substantial distance; [¶] . .
. [¶] As used here, substantial distance
means more than a slight or trivial distance.â€
Del Valle argues these
instructions erroneously implied “the defendant’s having moved the victim a
‘substantial distance’ alone is enough . . . .â€
Cal.App.4th 428 to argue the instructions did not define or explain the
phrase “‘merely incidental,’†and failed to convey the point that the jurors
had to acquit him if they determined his movement of K.T. was not substantial,
taking into account whether this movement was merely incidental to the acts of
child molestation. Del Valle’s reliance
on Bell is misplaced.
In Bell, the defendant had his ex-wife in his
car when police officers arrived to arrest him on a parole violation. He drove away to avoid arrest, with his
ex-wife still in the car. After driving
about 70 yards, the defendant let her out before resuming what turned into a
high speed chase. (Bell, supra, 179
Cal.App.4th at p. 431.) He was
charged and convicted of evading a police officer while driving recklessly,
resisting and obstructing a police officer, simple kidnapping, and hit and run
driving with property damage. (
Another panel of this
court reversed the defendant’s simple kidnapping conviction because the trial
court refused a defense request to include a bracketed portion of CALCRIM No.
1215 which would have directed the jury to determine whether the defendant
moved his ex-wife a “substantial distance†by considering the totality of the
circumstances, including whether the distance involved “‘was beyond that merely
incidental to the commission of the crime of evading a police officer . . . .’†(Bell,
evading a police officer was not an associated crime to simple kidnapping, and
the refusal to give the optional paragraph in CALCRIM No. 1215 defining
incidental movement as requested by the defense. (Id.
at p. 438.)
The holding in
defendant is charged with simple kidnapping and an “associated crime.â€
kidnapping cases such as the case at bar.
(See People v. Shadden (2001)
93 Cal.App.4th 164, 168.) The
reasons are obvious. As the
aggravated kidnapping has two prongs:
‘[A]ggravated kidnapping requires 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.’
[Citations.] ‘The two prongs of
aggravated kidnapping 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.’ [Citation.]†(Bell,
On the other hand, “the
standard for simple kidnapping does not require a finding of ‘an
increase in harm, or any other
contextual factors,’ so long as the evidence shows the victim was moved a
substantial distance. [Citation.]â€
(Bell, supra, 179
Cal.App.4th at pp. 436-437.)
Moreover, “‘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.’†(
alleged and an associated crime is involved, it is important for the jury to
determine whether more than one crime has been committed, which may not happen
in cases where the movement of the victim is incidental to the associated
crime. (Ibid.)
By way of contrast here,
the trial court’s charge to the jury correctly defined the asportation element
of the aggravated kidnapping alleged.
The evidence shows Del Valle coaxed K.T. to the storage closet and
forcibly pushed her inside the closet before molesting her. This movement occurred before Del Valle
touched K.T.’s breasts and vagina. Plus,
Del Valle’s decision to molest K.T. in a closed, latched closet decreased the
likelihood of his detection, increased the danger inherent in any attempt by
K.T. to escape, and enhanced Del Valle’s opportunity to commit other crimes.
Furthermore, even if the
trial court had a duty to instruct as Del Valle contends, the error was
harmless because there is no reasonable probability that the omission affected
the outcome of the trial. (People v.
Cole (2004) 33 Cal.4th
1158, 1208.) Based on the instructions
given, the jury understood a conviction required movement of a “substantial
distance,†considering all of the circumstances relating to the movement. If it had found that distance “merely
incidental†to the child molestation, it could not have found Del Valle guilty
of kidnapping. Thus, any error in
failing to further instruct on that issue could not reasonably have affected
the outcome of the trial.
DISPOSITION
The judgment is
affirmed.
THOMPSON,
J.
WE CONCUR:
FYBEL, ACTING
P. J.
IKOLA, J.
name="_ftn1" title=""> [1] All further statutory references are
to the Penal Code.
name="_ftn2" title=""> [2] The Attorney General argues Del Valle
forfeited his instructional error claim by failing to object to the
instructions as given, or by not requesting amplification of the
instructions. However, as Del Valle
states, “the contemporaneous objection rule presents no real hurdle here, since
the concern at issue implicates appellant’s ‘substantial rights’†under section
1259.
