P. v. Gutierrez
Filed 1/25/13 P. v.
Gutierrez CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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publication or ordered published for purposes of rule 8.1115
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST
APPELLATE DISTRICT
DIVISION
FIVE
THE PEOPLE,
Plaintiff and Respondent,
v.
ERNESTO
GUTIERREZ,
Defendant
and Appellant.
A133216
(Napa County Super. Ct.
Nos.
CR155028 & CR156335)
INTRODUCTION
Defendant Ernesto Gutierrez was
convicted by jury of simple kidnapping
(Pen. Code, § 207, subd. (a)),
violence (§§ 236, 237, subd. (a)), and dissuading a witness
(§ 136.1, subd. (c)(3)).
Gutierrez argues that:
(1) the trial court erred by failing to instruct the jury,
self-defense and necessity, and on whether Gutierrez’s movement of the victim
was merely incidental to another crime; and (2) the evidence is insufficient
to support his conviction of dissuading a witness. We reject these arguments. We agree with the parties that the false
imprisonment conviction must be reversed, because that crime is a lesser
included offense of kidnapping. We also
agree with the parties that the trial court erred in sentencing, and that
Gutierrez’s sentence must be corrected.
FACTUAL AND PROCEDURAL BACKGROUND
The Charges
An amended information charged
Gutierrez with simple kidnapping (count 1; § 207, subd. (a)), false
imprisonment by violence (count 2; §§ 236, 237, subd. (a)), and
dissuading a witness (count 3; § 136.1, subd. (c)(3)). The information alleged that Gutierrez had
served a prior prison term (§ 667.5, subd. (b)), had two prior
serious felony convictions (§ 667, subd. (a)(1)), and had two
prior strike convictions (§ 667, subds. (b)-(i)).
The Evidence Presented at Trial
On December 24, 2010, Gutierrez met his former girlfriend (the victim), while she was
walking back from a market with friends to her
90, in Napa. The victim and Gutierrez
had dated for four years, and lived together for about three years, until the
victim entered Project 90 in November 2010.
The victim and Gutierrez used drugs, including methamphetamines, and the
relationship was characterized by violence on both sides. (Gutierrez testified that he had used drugs
prior to his relationship with the victim, but claimed not to have done so
during their relationship.)
The victim’s father had invited the
victim and Gutierrez over for Christmas dinner the next day. Gutierrez wanted to discuss that, and other
matters, with the victim. The victim
telephoned Gutierrez and told him not to come because he was running late and
her break from Project 90 would end soon, but he came anyway.
The victim agreed to get into
Gutierrez’s truck so they could talk.
Gutierrez agreed to drive the victim back to Project 90 and talk in the
parking lot. The victim testified that
she wanted to talk there so she would be safe and would not be late returning
to her program. After getting into the
truck, the victim began to eat a burrito that Gutierrez had bought for them to
share. Gutierrez began to drive, but
turned the opposite direction from Project 90 (turning left instead of
right). The victim and Gutierrez
testified differently as to what followed.
The victim testified that when
Gutierrez turned the wrong way, she panicked and became scared because he was
taking her away from where she had asked him to go. She asked him where he was going, and told
him he was going in the wrong direction and to turn around. Gutierrez stopped the truck and acted like he
was going to turn around, but then continued going straight. Gutierrez yelled at the victim and told her
to “shut the F up.†The victim continued
screaming at Gutierrez, asking where he was going, asking to return to Project
90, and asking why he was doing this.
Gutierrez kept telling the victim to “shut the F up†and that he needed
to talk to her. When Gutierrez made a
rolling stop at a stop sign, the victim opened the truck door and started to
get out, but when she had one foot out, Gutierrez jerked her back by her hair. Because the truck was still moving, the
victim screamed and told Gutierrez he was going to run over her legs and to
please let go. Gutierrez told the victim
to shut up a few times and to get into the truck. Gutierrez asked the victim if she was going
to get into the truck if he stopped. The
victim kept saying “[p]lease let go of me,†“[you’re] going to kill me,†and “I
don’t want to die like this.â€
Gutierrez pulled into a court and
stopped, picked up the victim by her belt loop and her hair, and pulled her
back into the truck. He reversed out of
the court and kept driving, holding onto her hair. When he stopped, he would pull her back in by
her belt loop. Beginning when the victim
tried to get out at the stop sign, she was hanging out of the truck—her hair
was on the stick shift, her hips were where a passenger’s feet would normally
be, and her knees were hanging out of the truck. Her feet were dragging on the street. The victim was trying to get out of the truck
“the whole time†by pulling away. She
also kept her door open the whole time.
She continued screaming and said “ ‘It’s Christmas Eve. Why are you doing this?’ †Gutierrez continued to drive.
At one point during the drive, when
Gutierrez turned into a court, he collided with or hit something. Because Gutierrez had come to a complete stop,
the victim attempted to get out, but he pulled her back in and continued
driving. The victim kept asking
Gutierrez to let her go. She did not hit
him.
The victim saw some people chasing
the truck. Gutierrez stopped and let go
of the victim’s hair, and she rolled out of the truck onto the curb. Gutierrez drove off.
The victim testified that the ordeal
seemed to last 15 minutes, but could have been shorter. She testified she was not injured, but she
felt sore and some of her hair fell out, and her shoes and jeans were
torn.
The victim related these facts to
the responding police officer, Joshua Coleman.
When Coleman arrived at the scene, the victim was crying and
hysterical. Her jeans were torn at the
bottoms, and her shoes had abrasions all around the bottom of the rubber.
Coleman had the victim get into his
car and followed the route the victim thought Gutierrez had driven in his
truck. Driving the route took two to
three minutes. Based on the victim’s
description of the incident and driving the route with her, Coleman testified
to the following: After the victim got
into the truck, Gutierrez began driving north on Parrish Road
(the opposite direction from Project 90).
The victim was afraid Gutierrez would harm her, so she opened the door,
propped it open with her foot, and asked to get out of the truck. Gutierrez continued driving north on Parrish Road. When Gutierrez stopped at a stop sign at the
intersection of Parrish Road and Shetler, the victim got her feet out, but Gutierrez grabbed her
by her hair and pulled her back into the truck.
Gutierrez then went east on Shetler.
Her feet were hanging out of the truck, and Gutierrez was holding both
her hair and the stick shift in his right hand.
The victim yelled and screamed at Gutierrez to stop the truck and let
her out, but he continued driving east on Shetler to Shurtleff.
Gutierrez turned right and drove
south on Shurtleff to Sylvia
Court, where he made a
right turn into the court. As he made
that turn, he was too close to the parked vehicles, and the passenger door of
the truck hit another vehicle. (The
victim showed Coleman the truck on Sylvia Court
that was damaged by Gutierrez’s truck; she also told him that Gutierrez had
made two right turns before turning into Sylvia Court.) Gutierrez then backed out of Sylvia
Court. He “backtracked his route†back
to Shetler, where he turned right and continued eastbound. He drove north on Russell Street, turned
right on Linden and drove east, and turned right on Maria Drive, heading
south. The victim got out of the vehicle
on Maria Drive, and Gutierrez drove away.
Coleman testified that the area where the incident occurred is
residential with sidewalks and places one could pull a car over.
Del Pickard, an off-duty Napa State Hospital
police officer who was driving home from work, noticed Gutierrez’s truck
because it looked like it was not going to stop at the stop sign at the corner
of Shetler and Shurtleff. As the truck
got closer, Pickard noticed the passenger door was open. The truck was going eastbound on Shetler,
turned right and went south on Shurtleff.
The truck did not stop at the stop sign, and Pickard noticed that the
male driver was holding the female passenger by what looked like her
shirt. It looked like the passenger was
trying to get out, and there was a fight or struggle. Pickard called 911 and followed the
truck. The passenger was holding the
door open with her foot, like she was trying to get out.
As Pickard followed, Gutierrez
turned into a side road where he “came up against a vehicle,†then made a
three-point turn and headed back north on Shurtleff to the intersection with
Shetler (where Pickard had first seen him).
Gutierrez turned right on Shetler, then left on Russell. Pickard had difficulty keeping up with
Gutierrez, who was driving fast. The
passenger door was open the whole time, with a foot or arm sticking out. Gutierrez turned right, then right again on
Maria. Pickard then noticed that the
passenger was holding the door with her hands, and her legs and feet were
dragging on the pavement. The truck
eventually slowed down on Maria, and the passenger let go. She tumbled, then got up and brushed herself
off. The driver threw a purse out of the
truck. Pickard followed the truck to get
its license plate number, because he saw other people were helping the
passenger. Pickard estimated that, from
the time he first saw the truck until the passenger was able to get out, the
truck traveled about one-and-one-half miles, and one to two minutes elapsed.
Gutierrez’s testimony differed from
the victim’s. Gutierrez testified that
he initially turned left and drove away from Project 90 because there was a car
blocking his exit to the right. He
intended to go around the block and drive to Project 90. The victim started yelling that he was going
the wrong way, “freaking out,†and telling him to turn around. Gutierrez told her to hold on and he would
turn around. They were in a residential
area with no parking. He could not make
a U-turn because there was a car behind him and another coming toward him. He also was reluctant to make a U-turn
because his driver license was suspended and he did not have registration or
insurance for his truck. He made a right
turn, intending to go around and come back.
The victim then threw the burrito at Gutierrez; it hit the window and
some got in his hair and on his pants.
The victim was screaming. She
slapped him a few times. Gutierrez tried
to calm the victim down, and told her he was taking her back to Project
90. The victim kept yelling and hitting
Gutierrez. Gutierrez denied hitting the
victim, but stated he tried to push her away.
Gutierrez turned into a court and
hit a parked truck. Gutierrez testified
that this happened because he was next to a parked vehicle and was backing up,
when the victim opened the passenger door “and caused the door to bust all the
way open, and it messed it up.†He then
became paranoid and scared because his license was suspended, and he did not
have registration or insurance. He tried
to get away from the scene of the accident and sped off. The victim tried to jump out of the truck,
but Gutierrez grabbed her by her hair and sweater and pulled her back into the
truck, because he was driving fast and he did not want her to get hurt. The victim’s hair or sweater got stuck in the
stick shift. Gutierrez got her unhooked
and stopped the truck. As soon as he saw
the victim was out of the truck and out of danger, Gutierrez drove off,
throwing her purse out of the truck. He
left the scene because he was frightened about being apprehended for the hit
and run and driving with a suspended license.
He parked the truck and walked to a house, where he asked to borrow the
telephone to call and report his truck stolen.
Gutierrez testified that he drove
only 100 yards after he saw the victim trying to get out of the truck. However, he also testified that, when the
victim opened the door earlier (in the first court Gutierrez turned into),
causing Gutierrez to collide with a parked vehicle, “that’s when I guess she
was trying to get out at that point.â€
Gutierrez testified that he believed
Pickard, who was following Gutierrez’s truck, had accurately described the
route Gutierrez took.
The Verdict and Sentence
The jury convicted Gutierrez on all
three charges. Gutierrez waived jury
trial on the enhancement allegations, and the court found them to be true.
The court sentenced Gutierrez to an
indeterminate term of 25 years to life for kidnapping (count 1), a consecutive
determinate term of one year (one-third the midterm) for dissuading a witness
(count 3), and a consecutive term of five years for a prior serious felony
(§ 667, subd. (a)(1)). As to
the false imprisonment charge (count 2), the court imposed a term of 25 years
to life, but stayed the sentence pursuant to section 654.
DISCUSSION
I. The
Jury Instructions
Gutierrez
contends the trial court had a sua sponte obligation to instruct the jury to
consider the applicability of the defenses of
consider whether Gutierrez’s movement of the victim was incidental to another
crime, i.e., Gutierrez’s attempt to escape from the hit and run collision with
the parked vehicle. We disagree.
A. Legal
Standards
“A trial
court bears a sua sponte duty to instruct the jury on the essential elements of
an offense [citation], and ‘ “on the general principles of law governing
the case,†’ i.e., ‘ “ ‘those principles of law commonly
or closely and openly connected with the facts of the case before the
court’ †’ [citation]. A
‘criminal defendant is entitled to adequate instructions on the defense theory
of the case’ if supported by the law and evidence. [Citation.]â€
(People v. Bell (2009) 179 Cal.App.4th 428, 434 (
As to defenses, the trial court has
a duty to instruct sua sponte on “any affirmative defense for which the record contains
substantial evidence [citation]—evidence sufficient for a reasonable jury to
find in favor of the defendant [citation]—unless the defense is inconsistent
with the defendant’s theory of the case [citation]. In determining whether the evidence is
sufficient to warrant a jury instruction, the trial court does not determine
the credibility of the defense evidence, but only whether ‘there was evidence
which, if believed by the jury, was sufficient to raise a reasonable
doubt.’ [Citations.]†(People v. Salas (2006) 37 Cal.4th
967, 982-983; accord, People v. Breverman
(1998) 19 Cal.4th 142, 157.)
“ ‘An
appellate court reviews the wording of a jury instruction de novo’ [citation],
and determines whether ‘the instructions are complete and correctly state the
law’ [citation].†(Bell, supra,
179 Cal.App.4th at p. 435.)
B. Incidental
Movement
Gutierrez argues that the kidnapping
count must be reversed because the court did not instruct the jury to consider
whether the movement of the victim for the kidnapping was “merely incidentalâ€
to an associated crime, i.e., Gutierrez’s hit and run collision with a parked
vehicle. We disagree.
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.†A conviction of simple kidnapping under this
statute requires proof that the victim (1) was moved by the use of
physical force or fear; (2) did not consent to the movement; and
(3) was moved for a substantial distance.
(Bell, supra, 179 Cal.App.4th at p. 435.) This last element,
movement for a substantial distance, is known as asportation. (Ibid.)
In
determining whether the defendant moved his victim a substantial distance, the
jury should “consider the totality of the circumstances.†(People
v. Martinez (1999) 20 Cal.4th 225, 237 (Martinez).) “[I]n a case where the evidence permitted,
the jury might properly consider not only the actual distance the victim is moved, but also such factors
as whether that movement increased the risk of harm above that which existed
prior to the asportation, decreased the likelihood of detection, and increased
both the danger inherent in a victim’s foreseeable attempts to escape and the
attacker’s enhanced opportunity to commit additional crimes.†(Ibid.) The jury, however, may convict of simple
kidnapping “without finding an increase in harm or any other contextual
factors,†so long as the evidence shows the victim was moved a substantial
distance. (Ibid.) Here, the trial
court, using CALCRIM No. 1215, properly instructed the jury to consider any
increase in the risk of harm and other contextual factors in determining
whether the movement was substantial.
Simple kidnapping under section 207,
subdivision (a) differs from aggravated kidnapping in that it does not
require the commission or intended commission of an underlying offense. (Compare §§ 209, subd. (b), 209.5.)
simple kidnapping case that does involve an “associated crime,†the court should instruct the jury to “consider
whether the distance a victim was moved was incidental to the commission of
that crime in determining the movement’s substantiality.†(Martinez, supra, 20
Cal.4th at p. 237.) When supported by the evidence, such an
instruction must be given sua sponte. (
“associated crime†is “any criminal act the defendant intends to commit
where, in the course of its commission, the defendant also moves a victim by
force or fear against his or her will.â€
(Bell, supra, 179 Cal.App.4th
at pp. 438-439.)
The
standard kidnapping instruction, CALCRIM No. 1215, includes bracketed
language permitting the jury to consider “whether the distance the other person
was moved was beyond that merely incidental to the commission of [the
associated crime]†in determining whether the movement was substantial. Here, the court gave CALCRIM No. 1215
without the bracketed language and did not otherwise instruct the jury to
consider whether the movement of the victim was incidental to an uncharged
crime arising from the hit and run collision.
Gutierrez did not request inclusion of the bracketed language or any
other instruction on this issue.
Gutierrez
relies on Bell, in which the
appellate court reversed after the trial court failed to instruct sua sponte
that the jury should consider whether a kidnapping charge was incidental to a
charge of recklessly evading a police officer under Vehicle Code section
2800.2. (See Bell, supra, 179
Cal.App.4th at pp. 433-434, 438-440.)
The defendant in Bell had fled
from the police in his car while his estranged wife was an unwilling passenger;
he was convicted of both evading the police and kidnapping based on this
conduct. (Id. at pp. 431-433.)
The appellate court held that, under these circumstances, “the court
should have instructed the jury that, in determining whether defendant’s
movement of [the victim] was substantial, they could consider whether the
movement was merely incidental to the crime of evasion (as one factor among
others).†(Id. at p. 439.) Because
the trial court did not instruct on this issue, “the court’s instruction on the
asportation element of simple kidnapping was incomplete,†and “the error
violated defendant’s right to a correct jury instruction on all the elements of
the offense of simple kidnapping.â€
error was not harmless under the standard for federal constitutional error set
forth in Chapman v. California (1967)
386 U.S. 18. (Bell, at pp. 439-440.)
We
conclude that the trial court here did not have a sua sponte duty to instruct
on whether the victim’s movement was incidental to a crime arising from the hit
and run collision. At the outset, we
note that, in contrast to Bell (in
which the defendant was charged with both kidnapping and evading the police)
(see Bell, supra, 179 Cal.App.4th at p. 433), Gutierrez was not charged
with a crime arising from the hit and run collision. Even on appeal, Gutierrez does not specify the
precise crime that he contends the trial court should have treated as an
“associated crime†for purposes of the bracketed language in CALCRIM
No. 1215. Assuming a
trial court may in some circumstances have a sua sponte duty to discern from
the evidence that the defendant in a simple kidnapping case may have committed
an uncharged “associated crime,†and to instruct the jury to consider whether a
victim’s movement was “merely incidental†to that uncharged crime, no such duty
arose here, because the evidence did not support a finding that the movement of
the victim was “merely incidental†to Gutierrez’s attempt to flee the scene of
the hit and run collision. To the
contrary, the undisputed evidence establishes that the movement of the victim
was well underway when the collision occurred.
According to the victim’s testimony,
her description of the route to Officer Coleman, and the testimony of Del
Pickard (who followed Gutierrez), the collision occurred in a court, after
Gutierrez had begun driving and had made two or three turns. Gutierrez’s testimony was also consistent
with that of the other witnesses on this point—Gutierrez testified that Pickard
accurately described the route Gutierrez took.
Gutierrez also described driving with the victim in the truck, and
making at least one turn, prior to the collision. The undisputed evidence thus establishes that
a significant portion of the movement of the victim occurred
before the collision.
The undisputed evidence also
establishes this movement was accomplished through force or fear. Well before the collision, the victim
objected to continuing to drive with Gutierrez away from Project 90. The victim testified that, when Gutierrez
made the initial wrong turn, she panicked and became scared, asked him where he
was going, and screamed at him, telling him he was going in the wrong direction
and to turn around. At a stop sign, the
victim opened the door and attempted to get out, but Gutierrez pulled her back
in by her hair and kept driving.
Beginning when she tried to get out at the stop sign (prior to the
collision), the victim was hanging out of the truck; she kept her door open the
whole time; and she was trying to get out of the truck the whole time by
pulling away. The victim related this
same account to Officer Coleman.
Similarly, Pickard testified that, from the time he first saw
Gutierrez’s truck (prior to the collision), the passenger door was open, and it
appeared the passenger was trying to get out, but the driver was holding her
in. The door was open the whole
time.
In contrast to the above witnesses,
Gutierrez testified that the victim opened the door in the court just prior to
the collision (causing the door to hit the parked car), and that the victim did
not try to jump out of the truck until after the collision. However, even Gutierrez testified that the
victim began objecting much earlier to his driving away from Project 90. Gutierrez testified that, as soon as he made
his initial wrong turn, the victim started yelling that he was going the wrong
way, “freaking out,†and telling him to turn around. The victim threw the burrito at Gutierrez,
yelled at him, and slapped or hit him.
The prosecutor’s theory, as stated
in closing argument, was that, although the victim initially consented to ride
in Gutierrez’s truck back to Project 90, she withdrew her consent “very
quickly,†and was “no longer freely and voluntarily going with him.†The prosecutor noted that the victim
immediately “started screaming.†The
prosecutor emphasized that, even accepting Gutierrez’s version of the incident,
the victim “began panicking and screaming almost immediately when he made that
wrong turn, when he went in the opposite direction from where she had told him
to take her.â€
Case law
establishes that, even if “ ‘the victim has at first willingly accompanied
the accused, the latter may nevertheless be guilty of [kidnapping] if he
subsequently restrains his victim’s liberty by force and compels the victim to
accompany him further.’
[Citations.]†(People v. Camden
(1976) 16 Cal.3d 808, 814 (Camden).) In Camden, the victim initially
entered the car voluntarily but when she realized the defendant was not driving
her home she protested and asked to be driven home or to be let out of the
car. (Id. at p. 811.) The
defendant ignored her requests, stopped her from opening the door, and then
used the continued movement of his car to prevent her from escaping. (Id.
at pp. 811-812.) The court
concluded this evidence supported the conclusion that although the initial entry
was voluntary, threat or force was used to restrain the victim while being
asported. (Id. at pp. 814-815.)
Similarly, in People v. La Salle (1980) 103 Cal.App.3d 139, at
page 143 (La Salle) (overruled on
other grounds by People v. Kimble (1988) 44 Cal.3d 480, at page 496,
footnote 12), the victim was induced to enter the car when the defendant told
her that if she wanted her child back she would have to get in the car. The court concluded this threat was sufficient
to make her initial entry into the car an entry induced by force. (La
Salle, supra, 103 Cal.App.3d at
p. 146.) However, the court also
held that even if the initial entry was consensual, it became a kidnapping by
force because he refused to allow the victim to leave the car despite her protests
that she had to go home, and used the continued movement of the vehicle to
prevent the victim from leaving. (Id.
at pp. 146-147.) Other courts have
reached similar conclusions. (See, e.g.,
People v. Trawick (1947) 78 Cal.App.2d 604, 606 [“It is not necessary
that the original accompaniment of the abductor be involuntary, if subsequently
there is an enforced restraint of libertyâ€]; cf. People v. Felix (2001)
92 Cal.App.4th 905, 910.)
Under these
cases, when a victim enters a vehicle voluntarily, the subsequent movement is
consensual rather than forced asportation.
However, when the victim withdraws the initial consent and demands by
word or deed to be released from the vehicle, or to be returned to a place of
safety (see Camden, supra, 16 Cal.3d at p. 811 [victim asked to be
driven home or to be let out of the car]), and the defendant ignores the demand
and continues driving, the defendant at a minimum uses the threat of injury
(e.g., the injury that would inevitably result if the victim tried to escape a
moving vehicle) to restrain the victim’s liberty. Here, even by Gutierrez’s account, the victim
began yelling and screaming at Gutierrez almost immediately after he made the
initial wrong turn, asking where he was going and demanding that he return her
to Project 90.
Because the asportation of the
victim by force or threat was well underway before the hit and run collision,
the evidence did not support a finding that the victim’s movement was “merely
incidental†to Gutierrez’s attempt to flee the scene of the collision. Accordingly, in instructing on the
asportation element of simple kidnapping, the trial court did not have a sua
sponte duty to insert the bracketed language in CALCRIM No. 1215 and
instruct the jury to consider whether the victim’s movement was merely
incidental to an uncharged crime arising from the hit and run collision.
Even if the trial court should have
instructed sua sponte on this issue, its failure to do so was harmless beyond a
reasonable doubt. (See
standard].) For the reasons discussed
above, no reasonable jury would have found that the victim’s movement was
merely incidental to some uncharged crime arising from the hit and run
collision that occurred in the middle of the alleged kidnapping. Moreover, under Martinez and Bell, even
when it is appropriate to instruct the jury to consider whether a victim’s
movement is merely incidental to an associated crime, that issue is only one
factor in determining whether the victim was moved a substantial distance. (See Martinez, supra, 20 Cal.4th at p. 237;
179 Cal.App.4th at p. 440; CALCRIM No. 1215.) Here, the other factors enumerated in CALCRIM
No. 1215 (on which the jury was properly instructed) all pointed toward a
conclusion that the victim was moved a substantial distance. The actual distance moved was about
one-and-one-half miles, according to Pickard’s description of the route, which
Gutierrez testified was accurate.
Gutierrez’s movement of the victim away from Project 90, and his
continuing to drive after she protested and tried to get out of the truck,
increased the risk of harm to the victim and the danger to her of a foreseeable
escape attempt. Indeed, the movement and
Gutierrez’s accompanying effort to hold the victim in the truck resulted in her
being dragged from the truck, which could have resulted in serious injury or
death. Finally, the movement of the
victim away from the safety of Project 90, in the isolation of Gutierrez’s truck,
gave Gutierrez an opportunity to commit additional crimes and avoid
detection. In light of these factors, we
conclude that any error in failing to instruct on the incidental movement
factor was harmless beyond a reasonable doubt.
C. Self-Defense
Gutierrez contends the trial court
should have instructed sua sponte on the defense of self-defense as to the
kidnapping charge.
name="_ftnref5" title="">[5] We disagree.
“Self-defense
negates culpability for assaultive crimes, whether or not the assault results
in death.†(People v. Adrian
(1982) 135 Cal.App.3d 335, 340.) A
defendant acts in lawful self-defense if “ ‘one, the defendant reasonably
believed that he was in imminent danger of suffering bodily injury
. . . or was in imminent danger of being touched unlawfully; two, the
defendant reasonably believed that the immediate use of force was necessary to
defend against that danger; and three, the defendant used no more force than
was reasonably necessary to defend himself against that danger.’ (CALCRIM No. 3470.)†(People v. Clark (2011) 201
Cal.App.4th 235, 250.)
Here, there
was no substantial evidence supporting a self-defense instruction, because no
reasonable juror would have found that Gutierrez’s forcible, extended
asportation of the victim was reasonably necessary to defend Gutierrez against
a danger posed by the victim. Gutierrez
relies on his testimony that, after he made the initial wrong turn, the victim
assaulted him by throwing the burrito at him and slapping or hitting him. Gutierrez testified that, in response, he
tried to push the victim away. But, even
according to Gutierrez’s own testimony, he did much more than push the victim
away. He continued driving, making
several turns, and, when the victim tried to get out of the truck, he grabbed
her by her hair and held her in the truck while continuing to drive. Gutierrez’s testimony that the victim
initially slapped or hit him would not have raised a reasonable doubt as to
whether these actions were in self-defense and involved no more force than
reasonably necessary for Gutierrez to defend himself.
In his
appellate brief, Gutierrez appears to concede this point. He states:
“It is not contended that self-defense was necessarily applicable to all
of [Gutierrez’s] actions on that day, but to his initial reactions when [the
victim] first began to assault him.â€
Gutierrez nevertheless contends that the trial court should have
instructed sua sponte on self-defense, because that defense “must
. . . be viewed in context with the other applicable defenses that
arose during that incident,†such as necessity and whether the movement was
incidental to the hit and run collision.
Gutierrez argues that “[t]hese defenses arose in immediate succession
and should have been considered in conjunction with each other.â€
We reject
this argument. Whatever merit this
theory of combined defenses might have had if Gutierrez had expressly pursued
it at trial and requested instructions supporting it, Gutierrez has presented
no authority that the trial court had a sua sponte duty to piece together such
a defense strategy, and to instruct on different defenses that might arguably
apply to different portions of Gutierrez’s actions. As noted above, a trial court’s duty to
instruct sua sponte on an affirmative defense arises when the record contains
substantial evidence supporting it, i.e., evidence that, if believed, would be
sufficient to raise a reasonable doubt as to the defendant’s guilt. (See People v. Salas, supra, 37
Cal.4th at pp. 982-983; People v.
Breverman, supra, 19 Cal.4th at p. 157.) For the reasons stated above (and as
Gutierrez appears to concede), there was not sufficient evidence to raise a
reasonable doubt as to whether Gutierrez’s forcible asportation of the victim
was justified on a theory of self-defense.
The trial court was not obligated to instruct sua sponte on that
defense.
D. Necessity
Gutierrez contends the trial court
should have instructed sua sponte on the defense of necessity in connection
with the kidnapping charge.
name="_ftnref6" title="">[6] Similar to his argument
about self-defense, Gutierrez does not contend necessity justifies his entire
course of conduct, but focuses on just one of his actions. Specifically, Gutierrez relies on his
testimony that, when the victim tried to jump out of the truck, he grabbed her
by her hair and sweater and pulled her back into the truck, because he was
driving fast and did not want her to get hurt.
Gutierrez testified that, although the victim’s hair or sweater became
entangled with the stick shift, Gutierrez got her unhooked and then stopped the
truck.
“To justify an instruction on
the defense of necessity, a defendant must present evidence sufficient to
establish that [he] violated the law (1) to prevent a significant and
imminent evil, (2) with no reasonable legal alternative, (3) without
creating a greater danger than the one avoided, (4) with a good faith
belief that the criminal act was necessary to prevent the greater harm,
(5) with such belief being objectively reasonable, and (6) under
circumstances in which [he] did not substantially contribute to the
emergency. [Citations.]†(People v. Kearns (1997) 55
Cal.App.4th 1128, 1135; accord, CALCRIM No. 3403.)
The trial court here did not have a
because there was no substantial evidence that necessity justified Gutierrez’s
violation of the law, i.e., his kidnapping of the victim. There is no evidence that Gutierrez had no
reasonable legal alternative to kidnapping the victim. Instead of driving her away from Project 90
against her will and continuing to drive even when she was hanging out of the
truck, he could have stopped and let her out.
Although Gutierrez testified that he drove about 100 yards after the
victim first tried to get out, and could not stop earlier because of cars
parked on the right side of the street, he presented no reason why he could not
stop earlier and let her get out on the driver’s side. There also is no substantial evidence that
Gutierrez did not create a greater danger than he avoided, or that he did not
substantially contribute to the emergency.
By driving away from Project 90 and failing to stop and let the victim
out earlier, Gutierrez created the emergency (i.e., the victim’s attempt to
escape by getting out of the moving truck) that he claims justifies his action
in pulling her back in by her hair.
Gutierrez also increased the danger to the victim by continuing to drive
while she was hanging out of the truck.
Gutierrez appears to contend that
his course of conduct was justified by necessity in combination with other
defense theories. As discussed above, Gutierrez has presented no
authority that the trial court had a sua sponte duty to piece together, and
instruct on, a defense strategy comprised of different defenses arguably
applicable to different portions of his conduct.
II. False
Imprisonment
The parties correctly note that
false imprisonment is a lesser included offense of kidnapping, and that
Gutierrez may not be convicted of both offenses based on the same conduct. (See People
v. Shadden (2001) 93 Cal.App.4th 164, 171; People v. Chacon (1995) 37 Cal.App.4th 52, 65; People v. Magana (1991) 230 Cal.App.3d 1117, 1120-1121.) The false imprisonment conviction (count 2)
is reversed.
III. Sufficiency
of the Evidence on Count Three
A. Background
After the events underlying the
kidnapping and false imprisonment charges and after the victim testified at the
preliminary hearing for those charges,
Gutierrez sent his cousin a letter and a card addressed to the victim. The victim read them when she visited her dog
at the cousin’s house. In the letter,
Gutierrez stated that, if the victim went to southern California and the
district attorney could not find her, there would be no case against Gutierrez
and the charges would be dropped. In the
card, Gutierrez stated that, if the victim told the district attorney and
Gutierrez’s attorney that the incident in the truck was a misunderstanding,
then “this nightmare would be over.â€
When Gutierrez sent the letter and card, a restraining order was in
effect protecting the victim and prohibiting Gutierrez from contacting
her. Gutierrez understood the order
prohibited him from contacting the victim.
B. Analysis
Gutierrez contends there is
insufficient evidence to sustain his conviction of dissuading a witness (count
3; § 136.1, subd. (c)(3)). To
determine whether the prosecution met its burden to prove a charge beyond a
reasonable doubt, we apply the “substantial evidence†test. (People v. Cuevas (1995) 12 Cal.4th
252, 260.) Under that standard, 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.’ [Citations.]†(Id. at
pp. 260-261.)
Under section 136.1, it is a crime
to knowingly and maliciously prevent or dissuade, or to knowingly and maliciously attempt
to prevent or dissuade, a witness or victim from attending or giving testimony
at any trial or other proceeding.
(§ 136.1, subds. (a)(1) & (2).) Section 136.1, subdivision (c) imposes
increased punishment where the defendant committed one of the above acts
knowingly and maliciously under specified circumstances, including where the
act is accompanied by force or a threat of force or violence (§ 136.1,
subd. (c)(1)), or where the
defendant has previously been convicted of dissuading a witness (§ 136.1,
subd. (c)(3)).
name="_ftnref7" title="">[7] Gutierrez was charged under
section 136.1, subdivision (c)(3), based on a prior conviction of
dissuading a witness; he was not charged with use of force or threats under
section 136.1, subdivision (c)(1).
Gutierrez contends the evidence is
insufficient because, although he “did express his clear preference†that the
victim not testify, there was no proof that he intended to take further actions
to prevent her from doing so. He argues
that he did not express or imply that any “retribution†or “consequences†would
follow if the victim did not comply with his request that she not testify. But proof of these elements was not required. As Gutierrez concedes in his reply brief,
proof of force or threats was not required for conviction under section 136.1,
subdivision (c)(3). The jury was
properly instructed that the People had to prove that Gutierrez “maliciously
tried to discourage [the victim] from attending or giving testimony at the jury
trial,†and that he “knew he was trying to discourage [the victim] from
attending or giving testimony at the jury trial and intended to do so.†(See § 136.1, subds. (a)(2),
(c)(3); CALCRIM No. 2622.) The
letter and card Gutierrez sent provided substantial evidence that he tried to
discourage the victim from testifying (and that he knew he was trying to
discourage her and intended to do so).
Gutierrez stated his preference that the victim not testify, and he
suggested specific courses of action she could take instead of testifying
(i.e., moving to southern California, or telling the district attorney the
incident was a misunderstanding).
In his reply brief, Gutierrez
suggests there was insufficient proof of the required element of malice. (See § 136.1, subds. (a)(2),
(c).) We disagree. For purposes of section 136.1, malice means
“an intent to vex, annoy, harm, or injure in any way another person,
with the orderly administration of justice.â€
(§ 136, subd. (1), italics added.) Because Gutierrez’s statements evidenced an
intent that the victim change her testimony or not testify, they provide
substantial evidence of malice.
IV. The
Sentence
The trial court declined to dismiss
Gutierrez’s prior strike convictions as to the kidnapping and false
imprisonment convictions, but dismissed the prior strikes as to the dissuading
a witness count. The court sentenced
Gutierrez to an indeterminate term of 25 years to life for kidnapping (count
1), a consecutive determinate term of one year (one-third the midterm) for
dissuading a witness (count 3), and a consecutive term of five years for a
prior serious felony (§ 667, subd. (a)(1)).
The Attorney General contends the
court should have sentenced Gutierrez to the full middle term on count 3
(dissuading a witness), rather than one-third the midterm. Gutierrez agrees.
unauthorized . . . may be raised for the first time on appeal, and is
subject to judicial correction whenever the error comes to the attention of the
reviewing court.†(People v. Dotson (1997) 16 Cal.4th 547, 554, fn. 6.) We agree with the parties that the sentence
on count three (one year; one-third the midterm) is erroneous, but we do not
agree that the court was required to impose the full middle term of three
years. Instead, we conclude that the
trial court had discretion to impose the lower, middle, or upper term (two,
three, or four years). We remand to permit
the court to exercise its discretion on this point.
When consecutive
multiple felonies, section 1170.1, subdivision (a) provides that the
principal term is a full term, and any subordinate term generally consists of
one-third of the middle term for that offense.
(§ 1170.1, subd. (a); People
v. Neely (2009) 176 Cal.App.4th 787, 797-798 (Neely).) The determinate
sentencing act, section 1170 et seq., includes exceptions to the procedure set
forth in section 1170.1, subdivision (a).
(See People v. Felix (2000) 22 Cal.4th
651, 655.) One such exception,
section 1170.15, provides that, when a defendant is convicted of a felony and
of a felony charge of dissuading a witness as to that first felony, the
sentence for a subordinate consecutive term must be the full middle term
(rather than one-third the middle term).
Indeterminate term crimes generally
are subject to a different sentencing scheme than determinate term crimes. (Neely, supra, 176 Cal.App.4th at p. 797.) For indeterminate term crimes, section 1170.1 does not apply, and there are no principal or
subordinate terms to be selected.
(§ 1168, subd. (b); Neely, at p. 798.) The court just imposes the
statutory term of imprisonment for the indeterminate sentence crime. (Neely, at p. 798.)
As the Attorney General notes, when
a case involves both indeterminate term offenses and determinate term offenses,
the court must consider and calculate the indeterminate and determinate
portions of the sentence separately. (Neely, supra, 176 Cal.App.4th
at p. 798; People
v. Reyes (1989) 212 Cal.App.3d 852, 856;
524, 531-532; see Cal. Rules of Court, rule 4.451(a).) “ ‘Such sentencing has been conceptualized as
sentencing in separate boxes.’
[Citation.] The trial court
separately determines the sentences to be imposed for each category of crime,
and then ‘combines the two to reach an aggregate total sentence. Nothing in the sentencing for the determinate
term crimes is affected by the sentence for the indeterminate term
crime[s].’ [Citation.] When the defendant is sentenced to
determinate and indeterminate terms, the determinate term is served first. [Citation.]â€
(People v. Rodriguez (2012)
207 Cal.App.4th 204, 211.)
However, neither the determinate term nor the indeterminate term is “ ‘principal’ or ‘subordinate.’ †(People
v. Reyes, at p. 856.) Because
the determinate term is not subordinate, a full term, rather than one-third the
midterm, may be imposed. (
Applying
these principles, the trial court erred in imposing
one-third the midterm for dissuading a
witness. The trial court “erroneously
applied the principal term/subordinate term methodology set forth in section
1170.1 to all of the offenses,†and in effect designated the indeterminate term
for kidnapping as the principal term under section 1170.1. (See Neely,
supra, 176 Cal.App.4th at p. 797.)
Instead, the court should have calculated the determinate and
indeterminate terms independently. The
sole determinate term offense—dissuading a witness under section 136.1,
subdivision (c)(3)—carried a sentence of two, three or four years. The court should have selected one of those
terms and then combined it with the indeterminate term to reach an aggregate
total term. (See People v. Rodriguez,
supra, 207 Cal.App.4th at p. 211.)
The Attorney General argues briefly
that, under section 1170.15, the trial court was required to impose the full
middle term of three years; Gutierrez concedes the point without discussing
it. We disagree. As discussed above, section 1170.15 is
phrased as an exception to section 1170.1, subdivision (a), which
specifies the usual procedures for imposition of consecutive
calculation of principal and subordinate terms.
Section 1170.15 states that, “[n]otwithstanding†section 1170.1,
subdivision (a), when a defendant is convicted of a felony and of a felony
dissuading a witness as to that first felony, and if consecutive terms are
imposed, the “subordinate term†is imposed as the full middle term, rather than
one-third of the middle term.
(§ 1170.15.)
Because section 1170.15 specifies
that it applies to a “subordinate term†(a concept applicable only to
consecutive determinate terms), and
that it applies “[n]otwithstanding†the one-third the midterm rule in section
1170.1, subdivision (a) (i.e., the general rule for consecutive
not apply in this case, which does not involve consecutive determinate terms. It involves an indeterminate term and a single
determinate term. Neither term is
principal or subordinate (see People v.
Reyes, supra, 212 Cal.App.3d at p. 856; accord,
1170.15’s specification of the sentence applicable to a “subordinate term†does
not apply.
Instead, in calculating the determinate
term sentence for dissuading a witness under section 136.1,
subdivision (c)(3) separately and independently from the indeterminate
term crime, the trial court had discretion to select the lower, middle or upper
term specified in the statute (two, three or four years).
We cannot
conclude from the record that, if the trial court had understood it possessed
this discretion, it would have chosen to impose the middle term. In explaining its decision to dismiss the
prior strikes as to the dissuading count, the court found that, although the
jury had correctly determined that Gutierrez’s letters to the victim “fit
within†section 136.1, subdivision (c)(3), Gutierrez’s conduct in
connection with that charge was “of a very minor nature and not of the serious
nature, not involving threats and the pattern of violence that existed.†In contrast to Gutierrez’s prior dissuading conviction,
his conduct in this case “was more of a request for a conduct as opposed to the
threat.†The court concluded: “And for purposes of sentencing under People
versus Romero the court will as to Count Three strike the two priors and impose
the consecutive sentence of the mid term of three years reduced to one third
which would be for an additional one year.â€
It is unclear from this statement whether the court chose to impose the
middle term because it believed that term appropriate, or whether it referred
to “the mid term of three years reduced to one third†because it erroneously
believed that the one-third the midterm formula applied. We will remand for the court to determine
whether to impose a sentence of two, three, or four years on count three.
DISPOSITION
The false imprisonment conviction
(count 2) is reversed. The sentence for
dissuading a witness (count 3) is vacated.
The trial court is instructed to hold a new sentencing hearing, at which
it shall impose the lower, middle, or upper term for that crime. In all other respects, the judgment is
affirmed.
SIMONS,
J.
We concur.
JONES, P.J.
NEEDHAM, J.
are to the Penal Code unless otherwise stated.
has a different standard of asportation, which requires movement of the victim
that is “not merely incidental to the commission of the underlying crime and
that increases the risk of harm to the victim over and above that necessarily
present in the underlying crime itself.â€
(Martinez,
also Bell, supra, 179 Cal.App.4th at pp. 435-436.) Gutierrez incorrectly suggests that this
standard applies here.
