P. v. Enborg
Filed 2/14/13 P. v. Enborg CA4/2
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opinion has not been certified for publication or ordered published for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.
THE COURT OF APPEAL OF THE STATE OF
APPELLATE DISTRICT
TWO
THE PEOPLE,
Plaintiff and
Respondent,
v.
DOUGLAS SCOTT ENBORG,
Defendant and
Appellant.
E054747
(Super.Ct.No.
FSB1002762)
OPINION
APPEAL from the Superior Court of
County. Duke D. Rouse,
Judge. (Retired judge of the San
Bernardino Super. Ct. assigned by the Chief
Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed in part; reversed in part.
Richard de la Sota, 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,
James D. Dutton, Michael T. Murphy and Charles C. Ragland, Deputy Attorneys
General, for Plaintiff and Respondent.
I
INTRODUCTION
A
jury convicted defendant Douglas Scott Enborg of five crimes:
cohabitant; false imprisonment by violence; making criminal threats; and
assault likely to produce great bodily injury. (§§ 207, 236, 245, 273.5, and 422.) The jury also found true that defendant had
sustained two strike convictions, two felony convictions, and two convictions
for which he served separate prison terms.
(§§ 667, subds. (a)-(i), and 667.5, subd. (b).) On the principal term of aggravated
kidnapping, the court sentenced defendant to an aggregate term of 32 years to life.
On
appeal, defendant challenges the sufficiency of the evidence for his
convictions on counts 1, 3, and 4 for kidnapping, false imprisonment, and
making criminal threats, and also the instruction given on count 1. We hold there was sufficient evidence on all
counts. Additionally, because the jury
was instructed on both kidnapping and false imprisonment, based on the same
facts, no additional instruction was required on false imprisonment as a lesser
included offense of kidnapping. The
People concede—and we agree—the conviction on count 3 for false imprisonment
should be reversed. Otherwise, we affirm
the judgment.
II
STATEMENT OF FACTS
1. Jane Doe’s Testimony at Trial
Jane Doe met defendant in
February 2010 and they were involved in a sexual relationship while maintaining
separate residences. She characterized
their relationship before June 27, 2010, as not perfect but not
violent. Jane Doe testified as a
reluctant witness, blaming herself and offering justifications for defendant’s
conduct.
On June 26, 2010, Jane Doe went to defendant’s residence to help with
a move and to have a conversation with defendant about their relationship. Jane Doe brought two pieces of luggage
because she was planning to stay for a week.
The next day, they shared a bottle of Captain Morgan rum and had sex
multiple times, during which defendant choked and bit Jane Doe and pulled her
hair.
title="">[2] Then they engaged in an angry conversation
about whether defendant was cheating on Jane Doe. Jane Doe threatened to leave the house and
find the other women. Defendant grabbed
her by the shirt because she had stuffed his wallet and keys in her
brassiere. Jane Doe claimed she returned
to the house willingly where they continued to argue.
Jane Doe contended that she
deliberately intended to antagonize defendant and provoke a reaction. Jane Doe locked herself in the bedroom and
screamed for help from the window so a neighbor would respond. She falsely reported to the police that
defendant threatened to “kick your ass†to stop her from screaming.
Jane Doe admitted the police
photographed her crying with a scraped elbow on June
27, 2010. She claimed she had injured her
elbow when she fell while running in high heels, eluding defendant who was
trying to recover his wallet and keys.
The police also photographed injuries to her arm and back. She claimed an injury to her leg was razor
burn. She described other injuries as
“natural bruising.†She thought she had
injured her shin by tripping and falling while drinking.
When Jane Doe was
interviewed by the police, she maintained she did not feel threatened or afraid
for her life. Instead, she had asked
defendant to prevent her from getting in trouble when she had been
drinking. As retaliation for him
cheating on her, Jane Doe had told the police defendant had caused her injuries
although he had not really done so. She
exaggerated what she told the police because she wanted defendant to be
arrested but she did not want to press charges against him.
2. Testimony of the
John Conway, defendant’s
neighbor, testified he observed an altercation outside the house between
defendant and Jane Doe. While they
argued, defendant grabbed her by the hair and dragged her violently into the
house, slamming her head on a wall. Conway could see the shadows of
figures fighting inside the house and he heard loud voices. Jane Doe pushed open a screen window and
screamed for help, that defendant was “[g]oing to kill me, something to that
effect.†Conway’s wife called the
police. After Jane Doe climbed out the
window, Conway’s son ran across the street and intervened between defendant and
Jane Doe.
3. Testimony of Officer Newton
A police officer, Roael
Newton, testified that, when he contacted Jane Doe, she was scared and
crying. She denied having been
drinking. She repeatedly stated that
defendant had “banged her head against the wall, he choked her, and he
threatened to kick her ass.†When she
had fled outside the house, defendant had grabbed her by the hair and throat
and dragged her inside, hitting her head on the door frame. She tried to resist but he managed to pull
her inside.
They struggled in the
house. Jane Doe was kicking, screaming,
biting, and hitting but defendant overpowered her. He hit her head on the floor and bit her
lower back. He went outside to retrieve
her luggage and warned, “no one is going to know that you’re here,†so she felt
she had to escape. She tried to scream
for help and climb out the bedroom window but he blocked her. She screamed again and saw her neighbors were
coming to help. Defendant also choked
her, covered her mouth, and threatened her, to “shut up before I kick your ass
and make you not scream anymore.†Jane
Doe told the officer she was frightened about what defendant might do.
Officer Newton observed that
Jane Doe had abrasions on her elbows, knees, shin, and lower back. When he asked her about prosecuting
defendant, she said she wanted defendant to go to jail for a year or so.
III
KIDNAPPING
The necessary movement or
“asportation†element of kidnapping requires forcibly carrying away a victim
against her will. (§ 207, subd.
(a).) In his opening brief, defendant
recites the principle that the asportation required for a simple kidnapping is
less stringent than that required for an aggravated kidnapping. (People
v. Rayford (1994) 9 Cal.4th 1, 14.)
Defendant argues that the short distance he dragged Jane Doe—from
outside a residence to indoors—cannot constitute substantial evidence required
for simple kidnapping. No specific
distance was offered in evidence but the testimony suggests it was only a
matter of feet, which defendant contends was insignificant.
An appellate court reviews
the record in the light most favorable to the judgment below. (People
v. Johnson (1980) 26 Cal.3d 557, 576-578.)
The test is whether substantial evidence supports the verdict, not whether
the evidence proves guilt beyond a reasonable doubt. (People
v. Crittenden (1994) 9 Cal.4th 83, 139.)
It is the jury’s exclusive province to assess the credibility of the
witnesses, resolve conflicts in the testimony, and weigh the evidence. (People
v. Sanchez (2003) 113 Cal.App.4th 325, 330.) The fact that circumstances can be reconciled
with a contrary finding does not warrant reversal of the judgment. (People
v. Bean (1988) 46 Cal.3d 919, 932-933.)
Ultimately, a defendant “bears an enormous burden†when challenging the
sufficiency of the evidence. (
Kidnapping requires that the
perpetrator move the victim in a substantial manner by use of force or fear,
without the person’s consent. (
1428, 1434-1435; see People v. Martinez
(1999) 20 Cal.4th 225, 235.) In
assessing whether the movement of the victim was substantial rather than slight
or trivial, “the trier of fact may consider more than actual distance.†(Ibid.) The jury may consider the totality of the
circumstances surrounding the movement, including such factors as whether the
movement increased the risk of harm to the victim, decreased the likelihood of
detection, increased the danger inherent in a victim’s foreseeable attempts to
escape, or enhanced the attacker’s opportunity to commit additional
crimes. (Id. at p. 237.) In addition,
the jury should consider whether the movement was merely incidental to an
associated crime committed by the defendant.
(Ibid.)
In Arias, the court found that the movement of the victim 15 feet from
outside to inside his apartment “increased his risk of harm in that he was
moved from a public area to the seclusion of his apartment†and made it “less
likely defendant would have been detected if he had committed an additional
crime. These factors support the
asportation requirement for kidnapping.
(See People v. Shadden (2001)
93 Cal.App.4th 164, 168-169, [movement of nine feet to the back of a store
meets asportation requirement of kidnapping]; People v. Smith (1995) 33 Cal.App.4th 1586, 1594 [movement of
victim from driveway ‘open to street view’ to camper increased risk of harm to
victim].) [¶] . . . Unlike aggravated kidnapping, asportation
for simple kidnapping does not require
a finding of an increase in harm to the victim or other contextual
factors. [Citations.] . . . the increase
of harm and other contextual factors may be considered in determining whether
asportation for simple kidnapping has been proved. [Citation.]â€
(People v. Arias, supra, 193
Cal.App.4th at pp. 1435-1436.)
Here, the record amply
supports the jury’s kidnapping verdict.
Officer Newton testified that Jane Doe told him she had walked out of
the door and “was walking down the sidewalk†when defendant grabbed her and
forced her back inside the house.
Defendant moved Jane Doe several feet against her will. In addition, by forcibly moving Jane Doe from
an outside public area into the house, defendant significantly enhanced his
opportunity to commit additional crimes and decreased the likelihood of
observation by neighbors. The movement
was not merely incidental to assaulting Jane Doe, as argued by defendant. (People
v. Salazar (1995) 33 Cal.App.4th 341, 348 [risk of harm increased where the
defendant moved victim from outside walkway of motel to room];
588, 594 [moving victims from front lawn into house substantially increased
risk of violence].) We hold sufficient
evidence supported the kidnapping conviction.
Additionally, as we discuss below, the court did not need to instruct
the jury on false imprisonment as a lesser included offense of kidnapping.
IV
FALSE IMPRISONMENT
We
recognize that defendant contends his kidnapping conviction should be reversed
because the court should have instructed that false imprisonment is a lesser
included offense of kidnapping. Because
defendant was separately charged and convicted of false imprisonment based on
the same conduct supporting the kidnapping conviction, and because false
imprisonment is a lesser included offense of kidnapping, the People assert his
false imprisonment conviction should be reversed. (People
v. Binkerd (2007) 155 Cal.App.4th 1143, 1147 [“A defendant cannot be
convicted of both an offense and a lesser offense necessarily included within
that offense, based upon his or her commission of the identical act.â€].) However, because there was sufficient
evidence of kidnapping, no additional instruction on false imprisonment was
required.
False imprisonment is the
unlawful violation of the personal liberty of another. (§ 236.)
Personal liberty is violated when the victim is compelled to remain
where she does not wish to remain, or to go where she does not wish to go. (People
v. Reed (2000) 78 Cal.App.4th 274, 280.)
False imprisonment is a lesser included offense of simple kidnapping,
the only difference being the element of asportation necessary to prove
kidnapping. (People v. Magana (1991) 230 Cal.App.3d 1117, 1120-1121;
526, 547; see 1 Witkin & Epstein, Cal. Criminal Law (4th ed. 2012) Crimes,
§ 273, pp. 1121-1122.)
Here the prosecutor relied
on the same acts of defendant to establish both the kidnapping charge and the
false imprisonment charge. With respect
to the kidnapping charge, the prosecutor argued that defendant’s acts of
grabbing Jane Doe by the hair and forcibly moving her into the house proved the
element of kidnapping which requires the defendant to take or detain another
person by using force or instilling fear.
(See § 207, subd. (a); CALCRIM No. 1215.) The prosecutor also identified these same
acts, in addition to others, as proof that defendant unlawfully restrained Jane
Doe’s liberty, a required element of false imprisonment. (See § 236; CALCRIM No. 1240.) The jury was instructed on both kidnapping
and false imprisonment on the same facts but elected to convict on both
offenses. The trial court’s decision
under section 654 to stay execution of the sentence imposed for the false
imprisonment conviction reflects that it too believed both offenses rested on
the same acts of defendant. (See § 654
[prohibiting punishment for a single act under more than one provision of
law].)
Under these circumstances
the kidnapping conviction stands but, the false imprisonment conviction should
be vacated. (People v. Magana, supra, 230 Cal.App.3d at pp. 1120-1121;
Cal.App.3d 808, 819-821.)
V
MAKING CRIMINAL THREATS
Defendant finally contends
insufficient evidence supported his conviction for making a criminal threat. To prove a violation of section 422, the
following elements must be established:
(1) that the defendant willfully threatened to commit a crime which will
result in death or great bodily injury to another person, (2) that the
defendant made the threat with the specific intent that the statement is to be
taken as a threat, even if there is no intent of actually carrying it out, (3)
that the threat was on its face and under the circumstances in which it was
made so unequivocal, unconditional, immediate, and specific as to convey to the
person threatened, a gravity of purpose and an immediate prospect of execution
of the threat, (4) that the threat actually caused the person threatened to be
in sustained fear for his or her own safety, and (5) that the threatened
person’s fear was reasonable under the circumstances. (People
v. Toledo (2001) 26 Cal.4th 221. 227-228.)
Although defendant concedes
there was substantial evidence that he threatened Jane Doe, and that his threat
caused her to fear for her safety, he argues she did not experience “sustained
fear,†i.e., fear that extends “beyond what is momentary, fleeting, or
transitory.†(People v. Allen (1995) 33 Cal.App.4th 1149, 1156.) For example, defendant asserts that, because
Jane Doe did not call the police, she was not in sustained fear. But the neighbors called police when Jane Doe
was screaming for help as she tried to escape through a bedroom window. The jury was free to make its own reasonable
inferences to conclude that Jane Doe did not stop to call the police because
she was screaming for the neighbors to help her and trying to flee to
safety. Although defendant speculates on
other possible inferences a jury might have made, a reviewing court does not
reweigh the evidence and draw its own conclusions about the credibility of
witnesses and the significance of evidence.
(People v. Cochran (2002) 103
Cal.App.4th 8, 13.) A reviewing court
must draw all reasonable inferences from the evidence in support of the
judgment, and affirm the jury’s verdict if supported by substantial evidence
even if other evidence supports a contrary conclusion. (In re
L.Y.L. (2002) 101 Cal.App.4th 942, 947.)
Jane Doe reported to the
police, immediately after the incident, that defendant, while choking her and
smothering her mouth, threatened her by saying something to the effect of,
“shut up before I kick your ass and make you not scream anymore.†After defendant retrieved Jane Doe’s luggage,
he told her, “no one is going to know that you’re here.†Conway saw Jane Doe trying to crawl out a
window while screaming for help because defendant was trying to hurt or kill
her. After the police arrived, Jane Doe
was crying and appeared scared and frightened.
The jury could reasonably
conclude that Jane Doe experienced sustained fear. Even if the evidence arguably supported other
inferences, it does not undermine the jury’s verdict. (People
v. Farnum (2002) 28 Cal.4th 107, 143.)
Therefore, the jury’s verdict should not be disturbed on appeal.
VI
DISPOSITION
We
reverse the conviction on count 3 for false imprisonment. Otherwise, we affirm the judgment.
NOT
TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J.
We concur:
HOLLENHORST
Acting P. J.
KING
J.
name="_ftn1" title=""> [1] All
statutory references are to the Penal Code unless stated otherwise.
name="_ftn2" title=""> [2]
Bruises and scratches were a common aspect of their sexual interaction.
