P. v. Hernandez
Filed 5/9/13 P. v. Hernandez CA6
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opinion has not been certified for publication or ordered published for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.
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH
APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and
Respondent,
v.
RENE HERNANDEZ,
Defendant and
Appellant.
H037436
(Santa Clara
County
Super. Ct.
No. WF00983)
Defendant Rene Hernandez appeals after
conviction, by jury trial, of rape (Pen. Code, § 261, subd. (a)(2)),
subd. (a)(1)), and assault by means of force likely to produce great bodily
injury (former § 245, subd. (a)(1)).
The jury found true allegations that defendant kidnapped the victim before
committing the rape and penetration. (§
667.61, subds. (b), (e)(1).) Defendant
was sentenced to consecutive terms of 15 years to life for the rape and
penetration, with the term for the assault stayed pursuant to section 654.
On appeal, defendant contends: (1) there was
kidnapping allegations; (2) the trial court failed to instruct the jury that in
determining whether defendant kidnapped the victim, it should consider whether
the forcible movement was incidental to the commission of the associated
offenses; (3) the trial court erred by allowing the prosecution to admit 10
booking photos of defendant to show his changed appearance and consciousness of
guilt; (4) the trial court failed to instruct the jury to view defendant’s oral
admissions with caution and failed to give a corpus delicti instruction; (5)
the trial court coerced a verdict on the kidnapping allegations by
directing the jury to continue deliberating on those allegations after the jury
reported a deadlock on count 1; (6) the
cumulative effect of the errors denied defendant
654 barred the trial court from imposing One Strike law sentences for both the
rape and penetration with a foreign object based on the same act of kidnapping;
and (8) this court should order a suppression hearing or find that trial
counsel was ineffective for failing to bring a suppression motion, because
defendant’s DNA was taken after arrest on an unrelated felony charge for which
he was not convicted, in violation of the Fourth Amendment.
As we shall explain, with respect to
the kidnapping allegations, we agree that the trial court should have instructed
the jury to consider whether the forcible movement was incidental to the
commission of the associated offenses, and that the error was prejudicial. We will reverse the judgment and remand for
possible retrial of the kidnapping allegations under section 667.61,
subdivisions (b) and (e)(1). We find no
prejudicial error as to defendant’s convictions of rape, penetration with a
foreign object, or assault by means of force likely to produce great bodily
hearing and find that defendant did not receive ineffective assistance of
counsel.
Background
A. Testimony
Regarding the Incident
On February 11, 2009, Jane Doe
took care of an elderly couple who lived in Watsonville.
After work, she remained at the house and began drinking alcohol. She had more than two drinks. Sometime between 8:30 p.m. and 9:30 p.m., Doe decided to walk to her ex-boyfriend’s
home on Dogwood
Drive. As she walked, Doe felt safe, wondering, “Who
would touch a 56-year-old woman?â€
Doe’s route took her down the
sidewalk along East Lake Avenue.
About 10 to 15 minutes into her walk, Doe saw two men approaching
her. One of the men was young, tall, and
thin, and he had a pit bull on a leash.
The second man – defendant – was older, shorter, and heavier, with “real
short†hair.
Defendant told the other man to
leave. He then pulled Doe by the hair
and arm, moving her about four or five feet off the sidewalk, away from the
street. Defendant pushed Doe’s head into
a cement wall, and she ended up on the ground next to some bushes. Defendant told Doe to “shut up†and said he
was going to “fuck [her] to death.†Doe realized
her pants were down around her ankles.
Defendant penetrated her vagina with his finger and then with his
penis. After saying “I’m done, bitch,â€
he left.
Doe got up and pulled up her
pants. She had leaves and other debris
all over her. Her purse was
missing. She ran down East Lake Avenue,
trying to get help. Several cars passed
without stopping, until Juan Roman noticed her waving and offered his
help. Doe
was upset, smelled of alcohol, and had dirty clothing, but was speaking
clearly. Doe said she needed a ride and
that she had been raped. Roman called
911 then took Doe to meet two deputies.
B. Investigation
Watsonville Police Detective Morgan
Chappell spoke to Doe about the incident.
Doe was coherent and alert during the interview. She complained of head pain and had “weeds
and stuff†in her hair. Doe said she had
consumed two mixed drinks. She said her
purse had about $20 in it as well as two prescription bottles.
Detective Chappell then took Doe to
the hospital, where she spoke to a Sexual Assault Response Team (SART)
nurse. Doe gave consistent versions of
the incident to the detective and the nurse.
During the SART exam, the nurse found debris (bark, twigs, crushed
leaves, and moss) in Doe’s underwear and pants.
Debris was also stuck to Doe’s back and inside the entrance to her
vagina. There was a bruise on Doe’s
right arm and abrasions on both of her knees.
The SART nurse found a laceration at
the 6:00 o’clock position in Doe’s vagina.
This injury is commonly found when there has been blunt force trauma,
and it is consistent with the use of “more force†than what would be used for
consensual sex. Doe also had a puncture
wound in her anal opening. Live sperm
was found on a vaginal swab.
At the time of the SART exam, Doe
did not seem intoxicated. However, when
her blood was drawn at 2:30 a.m., it had a blood alcohol level of 0.19
percent. According to toxicologist Judy
Stewart, the alcohol would have metabolized at a rate of 0.015 percent per
hour.
Detective Chappell participated in a
search for the crime scene, but neither he nor the other officers found
anything of evidentiary value. It had
rained earlier that day and had begun raining again. Doe had not been able to pinpoint the exact
location of the rape; she had only been able to identify the particular side of
the road and the general location on East Lake Avenue between two cross
streets.
Photographs taken in the general
location of the incident were introduced at trial. They show a street on one side of the
sidewalk and an embankment that runs along the other side of the sidewalk. A concrete wall sits at the top of the
embankment. As shown by the photograph
and as described by witnesses, various forms of vegetation (ice plant, bushes,
and young trees) grow along the embankment and near the concrete wall.
Detective Chappell testified that on
a dark and rainy night, a passer-by would not be able to see the shrubs or
anything behind them very well. It would
be “much easier†to see someone on the sidewalk than someone in the area
between the shrubs and the wall.
Watsonville Police Detective
Christopher Greene worked with Doe’s description of her attacker to produce a
composite drawing following the rape.
The drawing was circulated in local newspapers. It generated a few leads that “went nowhere.â€
On March 11, 2009, Detective Greene
canvassed the neighborhoods along East Lake Avenue. He went to defendant’s residence because
another officer had reported seeing a pit bull in that neighborhood. He inquired at the residence but did not
speak to defendant. An adult female at
the residence said the dog belonged to defendant. Detective Greene later showed Doe a
photograph of the pit bull, but she was unable to identify it as the one she
had seen on the night of the incident.
DNA from the sperm found during the
SART exam was entered into the CODIS database in March 2009. On January 5, 2010, a “cold hit†occurred in
the CODIS database, matching the DNA evidence to defendant, whose DNA had been
taken following an arrest on an unrelated matter.
Following the CODIS hit, defendant
was arrested for the current offenses on January 11, 2010. A photograph of defendant, taken in 2008, was
included in a photographic array that was shown to Doe. Doe could not positively identify anyone from
the array, although she spent “a long time†looking at defendant’s photograph
and commented that the photograph “look[ed] like him.â€
C. Victim
Impeachment – Prior Domestic Violence Incident
On June 18, 2005, Santa Cruz County
Sheriff Detective Joe Mata was dispatched to the Dogwood Drive residence to
investigate a possible stabbing. Doe was
at the residence and appeared to be intoxicated. She claimed that she had been stabbed in the
neck, chest, and face. Medics attended
to her but did not believe she had been stabbed, although she did have bruises
on her arms and possibly on a knee. Doe
was arrested for domestic violence, but Detective Mata did not believe she was
ever prosecuted.
Doe acknowledged having problems
with alcohol and that the police had responded to a 911 call at her
ex-boyfriend’s home. Doe denied telling
the police that her ex-boyfriend had stabbed her, but she admitted that “things
were exaggerated.â€
D. Charges,
Trial, and Sentencing
On July 1, 2010, the District
Attorney filed an information alleging that defendant committed kidnapping for
purposes of rape (count 1; § 209, subd. (b)(1)), forcible rape (count 2; § 261,
subd. (a)(2)), penetration with a foreign object (count 3; § 289,
subd. (a)(1)), second degree robbery (count 4; § 211), assault with intent
to commit a sex offense (count 5; § 220, subd. (a)), false imprisonment by
violence (count 6; § 236), and assault by means of force likely to produce
great bodily injury (count 7; former § 245, subd. (a)(1)).
The information alleged two One
Strike law circumstances in connection with the charges of rape and penetration
with a foreign object. First, it alleged
that defendant kidnapped the victim “and the movement of the victim
substantially increased the risk of harm to the victim over and above that
level of risk necessarily inherent in the underlying offense†(i.e., aggravated
kidnapping), which would make the crimes punishable by a term of 25 years to
life. (§ 667.61, subds. (a),
(d)(2).) Alternatively, the information
alleged that defendant “kidnapped the victim of the present offense in violation
of Section 207 and or 209 and or 209.5†(i.e., simple kidnapping), which would
make the crimes punishable by a term of 15 years to life. (§ 667.61, subds. (b), (e)(1).)
At trial, defendant did not dispute
that he had sexual intercourse with Doe, as that fact was established by the
DNA evidence. He argued that Doe was not
credible in testifying that the intercourse was non-consensual. He also argued there was insufficient
evidence to support guilty verdicts on the other counts and true findings on
the special allegations.
The jury convicted defendant of
three counts: forcible rape (count 2; §
261, subd. (a)(2)), penetration with a foreign object (count 3; § 289,
subd. (a)(1)), and assault by means of force likely to produce great bodily
injury (count 7; former § 245, subd. (a)(1)). It found defendant not guilty of robbery
(count 4; § 211) and not guilty of the lesser-included offense of petty theft
(§ 484). The jury was unable to reach a
verdict on the charge of kidnapping for purposes of rape (count 1; § 209,
subd. (b)(1)).
Because of the guilty verdicts on
counts 2 and 3, no verdict was returned for count 5 (assault with intent
to commit a sex offense; § 220, subd. (a)), which was charged only as a
lesser-included offense of counts 2 and 3.
Likewise, because the jury was unable to reach a verdict on count 1, the
trial court did not record the jury’s verdict for count 6 (false imprisonment
by violence; § 236), which was charged only as a lesser-included offense of
count 1.
As to counts 2 and 3 (rape and
penetration with a foreign object), the jury found the aggravated kidnapping
allegations not true (§ 667.61, subds. (a), (d)(2)), but it found the
simple kidnapping allegations true (§ 667.61, subds. (b), (e)(1)).
At the sentencing hearing on August
18, 2011, the trial court imposed consecutive terms of 15 years to life for the
rape and penetration (counts 2 and 3).
It imposed the four-year upper term for the assault (count 7), but
stayed that count pursuant to section 654.
It imposed a $10,000 restitution fine (§ 1202.4, subd. (b)), imposed but
stayed a $10,000 parole revocation fine (§ 1202.45), imposed $120 in court
security fees (§ 1465.8, subd. (a)(1)), and imposed $90 in criminal
conviction assessments (Gov. Code, § 70373).
On the District Attorney’s motion, the trial court dismissed counts 1,
5, and 6 and the aggravated kidnapping allegations.
Discussion
A. Sufficiency
of the Evidence of Kidnapping
Defendant contends there was
insufficient evidence to support the allegations that defendant committed the
rape and penetration “after kidnap[p]ing the victim in violation of Penal Code
section 207.†(See § 667.61, subd.
(e)(1).)
1. Standard of Review
In reviewing a claim of
insufficiency of the evidence on appeal, “ ‘the relevant question is whether,
after viewing the evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.’ †(People
v. Johnson (1980) 26 Cal.3d 557, 576, quoting Jackson v. Virginia
(1979) 443 U.S. 307, 318-319, original italics.) “An appellate court must view the evidence in
the light most favorable to respondent and presume in support of the judgment
the existence of every fact the trier could reasonably deduce from the
evidence.†(People v. Reilly
(1970) 3 Cal.3d 421, 425.)
2. Analysis
In urging this court to strike the
kidnapping allegations, defendant contends that there was
that is, movement of the victim that is “ ‘substantial in
character.’ †(People v. Martinez (1999) 20 Cal.4th 225, 235 (Martinez).)
In Martinez, the California Supreme Court set forth the asportation
standard for simple kidnapping in violation of section 207, subdivision
(a). Reaffirming that the movement must
be “substantial in character†(Martinez,
supra, 20 Cal.4th at p. 237), the court overruled precedent that had
“made the asportation standard exclusively dependent on the distance involvedâ€
(id. at p. 233). The Martinez
court emphasized that “[s]ection 207(a) proscribes kidnapping or forcible
movement, not forcible movement for a specified number of feet or yards.†(Id.
at p. 236.)
The Martinez court held that “factors other than actual distance are
relevant to determining asportation . . . in all cases involving simple
kidnapping.†(Martinez, supra, 20 Cal.4th at p. 235.) Thus, “the jury should consider the totality
of the circumstances.†(
as well as “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., fn. omitted.) “In
addition, 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.†(Ibid.)
Although the Martinez court was clear that actual distance was not determinative
of whether a movement was “substantial in character,†it also “emphasize[d]
that contextual factors, whether singly or in combination, will not suffice to
establish asportation if the movement is only a very short distance.†(Martinez,
supra, 20 Cal.4th at p. 237.)
Defendant asserts that because
“only a very short distance†cannot establish asportation (Martinez, supra, 20 Cal.4th at p. 237), “there remains some minimum
actual distance requirement.†He argues
that the movement of Doe from the sidewalk to the area near the wall and shrubs
– approximately four or five feet, according to Doe’s estimate – was “only a
very short distance†and thus insufficient to establish asportation despite any
contextual factors. (
Defendant also asserts that even with the contextual factors, the
movement here was not substantial.
We do not read Martinez as establishing that a movement of only four or five feet
is so “very short†that it could never be the basis for a simple kidnapping
conviction. In Martinez, the California Supreme Court made it clear that there is
no specific actual distance minimum for simple kidnapping. (Martinez,
supra, 20 Cal.4th at p. 236; see People
v. Corcoran (2006) 143 Cal.App.4th 272, 280 [“measured distance is not
alone determinativeâ€].) Defendant
contends that the specific distance of five feet is, as a matter of law, never
“substantial in character.†(
237.) In light of Martinez’s overruling of the line of cases setting a minimum
distance requirement for kidnapping, we decline to so hold.
Prior published cases have held that
movements as short as nine feet are not so “very short†as to preclude a jury
finding that the distance was insubstantial.
(Martinez, supra, 20 Cal.4th
at p. 237.) For instance, in
164 (Shadden), the defendant dragged
the victim nine feet from the front counter of a video store to a room in the
back of the store. The
simple kidnapping conviction, noting that “[w]here movement changes the
victim’s environment, it does not have to be great in distance to be
substantial.†(Id. at p. 169.) The
victim was moved “from an open area to a closed room,†which changed the
victim’s environment, “the jury could reasonably infer that the distance was
substantial.†(Ibid.)
Here, the movement of Doe from the
sidewalk to the area near the wall and shrubs, while brief, was not so “very
short†as to be insubstantial as a matter of law. (Martinez,
supra, 20 Cal.4th at p. 237.) A reasonable
jury could have found that taking Doe from the sidewalk to the area next to the
concrete wall significantly altered her environment. (See Shadden,
supra, 93 Cal.App.4th at p. 169.)
The evidence at trial established that on the sidewalk, even though it
was dark out, Doe would have been visible to cars passing by because the
headlights would have illuminated the area.
In contrast, four or five feet away, up the embankment and obscured by
the shrubs, Doe would not have been nearly as visible to passers-by. This change in environment made it more
likely that defendant would avoid detection, reduced Doe’s opportunity to
escape, and gave defendant a greater opportunity to commit additional crimes. (See ibid.
[“where a defendant moves a victim from a public area to a place out of public
view, the risk of harm is increased even if the distance is shortâ€].)
A reasonable juror could also have
found that “the movement of the victim was for a distance beyond that which was
incidental to the commission of an associated crime.†(People
v. Bell (2009) 179 Cal.App.4th 428, 440 (Bell); see Martinez, supra,
20 Cal.4th at p. 237.) The record
supports a finding that the movement of Doe from the sidewalk to the area near
the concrete wall and shrubs was not incidental to the commission of any of the
associated crimes – i.e., rape, penetration, or assault. Defendant could have committed the assault or
sexual assault on Doe while she was on the sidewalk or right next to the sidewalk,
instead of moving her to the area with bushes and the wall. (See Shadden,
supra, 93 Cal.App.4th at p. 169 [movement is not necessary to the
commission of a rape]; People v. Diaz (2000)
78 Cal.App.4th 243, 248-249 (Diaz)
[movement of victim from sidewalk to immediately adjacent grassy area was
incidental to rape, but further movement to dark area was not].)
In sum, based on the totality of the
circumstances, a jury could reasonably find that defendant’s movement of Doe
was “substantial in character.†(
237.) Substantial evidence in the record
supports the jury’s findings under section 667.61, subdivisions (b) and (e)(1).
B. Instructional
Error
Defendant contends the trial court
erred by failing to instruct the jury that in order to find the kidnapping
allegations true, it should consider whether the forcible movement of Doe was
more than “merely incidental†to the commission of an associated offense. (CALCRIM No. 1215; see Martinez, supra, 20 Cal.4th at p. 237.)
1. Proceedings Below
The trial court instructed the jury
pursuant to CALCRIM No. 3179 that if it found defendant guilty of the rape and
penetration with a foreign object, it had to “decide whether, for each crime,
the People have proved the additional allegation that the defendant kidnapped [Jane Doe].†The trial court explained that “[t]o decide
whether the defendant kidnapped [Jane
Doe],†the jury should “refer to the separate instructions that I will
give you on kidnapping.â€
The trial court then instructed the
jury pursuant to CALCRIM No. 1215 that to find defendant committed kidnapping,
it had to find that “1. The defendant
took, held, or detained another person by using force or by instilling
reasonable fear; [¶] 2.
Using that force or fear, the defendant moved the other person or made
the other person move a substantial distance;
[¶] AND [¶]
3. The other person did not
consent to the movement.â€
The trial court gave the following
definition of the term “substantial distanceâ€:
“Substantial distance means more than a slight or trivial
distance. In deciding whether the
distance was substantial, you must consider all the circumstances relating to
the movement. Thus, in addition to
considering the actual distance moved, you may also consider other factors such
as whether the movement increased the risk of harm, increased the danger of a
foreseeable escape attempt, gave the attacker a greater opportunity to commit
additional crimes, or decreased the likelihood of detection.†(CALCRIM No. 1215.)
The trial court did not include an
optional (bracketed) portion of CALCRIM No. 1215, which would have
instructed the jury that in determining whether the victim was moved a
substantial distance, it could also consider “whether the distance the other
person was moved was beyond that merely incidental to the commission of†an “associated crime.â€
2. Analysis
The California Supreme Court has
made it clear that “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.†(Martinez, supra, 20 Cal.4th at p. 237.) Citing Martinez
and Bell, supra, 179 Cal.App.4th
428, the bench notes to CALCRIM No. 1215 state, “The court must give the
bracketed language on movement incidental to an associated crime when it is
supported by the evidence.â€
The Attorney General states that
“this issue is close†and acknowledges that “the trial court should have given
the jury the bracketed language regarding incidental movement in the simple
kidnapping ‘one strike’ allegation.â€
However, the Attorney General cites People
v. Dieguez (2001) 89 Cal.App.4th 266 at page 276 and asserts that there is
no “ ‘reasonable likelihood’ that the jury misconstrued or misapplied the
law.†The Attorney General notes that
the “more than merely incidental†language was included in the jury instruction
on the aggravated kidnapping allegation (CALCRIM No. 3175), and that during
closing arguments, defense counsel told the jury that, for the simple
kidnapping allegation, it should consider whether the movement was “merely
incidental to the commission of forcible rape.â€
We do not believe that the
instruction on the aggravated
kidnapping allegation adequately informed the jury that, in considering whether
the victim was moved a “substantial distance†for purposes of the
could consider “whether the distance a victim was moved was incidental to the
commission of that crime.†(
237.) The instruction on the aggravated
kidnapping allegation (CALCRIM No. 3175) told the jury that “substantial
distance†required that the movement was “more than merely incidental to the
commission of forcible rape and/or forcible digital penetration.â€
kidnapping allegation omitted this requirement.
Nothing in the instructions indicated that this omission was
inadvertent, such that the jury should apply the same definition to both
allegations.
We also disagree that defense
counsel’s argument was sufficient to inform the jury that the “substantial
distance†determination should include a consideration of “whether the distance
. . . was beyond that merely incidental to the commission of†an “associated crime.†(CALCRIM No. 1215.) We cannot presume the jury applied the legal
standards stated in defense counsel’s argument rather than those provided in
the jury instructions, particularly since the trial court also instructed the
jury to “follow the law†as explained by the court’s instructions, and that the
instructions must be followed if the “attorney’s comments on the law conflict
with†them. (CALCRIM No. 200.)
We also find it significant that the
jury asked about the meaning of “merely incidental†and specified that
the question was “[i]n regard to Count One,†the aggravated kidnapping charge.
with the term “merely incidental†and suggests that it did not necessarily
understand that the standard applied to the simple kidnapping allegations.
On this record, we cannot be
confident that the jury understood that, with respect to the simple kidnapping
allegations, the “substantial distance†determination should include a
consideration of “whether the distance . . . was beyond that merely incidental
to the commission of†an “associated
crime.†(CALCRIM No. 1215; see
Having concluded there was
instructional error, we must determine if reversal is required. As defendant points out, at least one
published case has held that this error is subject to harmless-error review
under the “harmless beyond a reasonable doubt†standard of Chapman v.
California (1967) 386 U.S. 18, 24 (Chapman),
because it violates the defendant’s “right to a correct jury instruction on all
the elements of the offense of simple kidnapping.†(Bell,
supra, 179 Cal.App.4th at p. 439.)
The Attorney General does not advocate for a different harmless error
standard, so we will assume that the Chapman
standard applies.
“In determining whether instructional error
was harmless, relevant inquiries are whether ‘the factual question posed by the
omitted instruction necessarily was resolved adversely to the defendant under
other, properly given instructions.’
[Citation.] A reviewing court
considers ‘the specific language challenged, the instructions as a whole[,] the
jury’s findings’ [citation], and counsel’s closing arguments to determine
whether the instructional error ‘would have misled a reasonable jury. . .
.’ [Citation.]†(Bell,
supra, 179 Cal.App.4th at p. 439.)
As noted above, we cannot say with
confidence that “ ‘the factual question posed by the omitted instruction
necessarily was resolved adversely to the defendant under other, properly given
instructions.’ †(
439.) Although the instruction on the
aggravated kidnapping allegation (CALCRIM No. 3175) required the jury to find
that the movement was “more than merely incidental to the commission of forcible
rape and/or forcible digital penetration,†the instructions did not inform the
jury that the same definition of “substantial distance†applied with respect to
the simple kidnapping allegations.
Moreover, the jury found the aggravated kidnapping allegation not true,
suggesting that the jury found the distance was not “more than merely
incidental to the commission of forcible rape and/or forcible digital
penetration.â€
The jury’s questions and verdicts do
not necessarily reflect that it found the movement of Doe was more than merely
incidental to the commission of an associated crime. The jury appeared to struggle with the
concept of incidental movement when considering count 1, and it ultimately
failed to reach a verdict as to that count.
The jury’s deadlock on count 1 suggests that some of the jurors might
not have believed that the movement of Doe was more than merely incidental to
the commission of the rape.
Finally, as the Attorney General
acknowledges, it was a “very close†question whether the movement here was more
than merely incidental to any of the associated offenses. As discussed above, the jury
Doe was more than merely incidental to the assault or sex offenses, since
defendant could have committed those offenses while Doe was on the sidewalk or
right next to the sidewalk. (See
169; Diaz, supra, 78 Cal.App.4th at
pp. 248-249.) However, the jury also
conclusion – that the movement of Doe was merely incidental to the associated
offenses, particularly the assault, which defendant committed by hitting Doe’s
head against the wall, which was four or five feet from the sidewalk. (See
Cotton v. Superior Court (1961) 56 Cal.2d 459, 464 [dragging of
victim 15 feet was incidental to assault]; People
v. Hoard (2002) 103 Cal.App.4th 599, 607 [movement was merely incidental
where it “served only to facilitate the crime with no other apparent
purposeâ€].)
On this record, we conclude that a
properly instructed jury might have reached a different result and thus that
the error was not harmless beyond a reasonable doubt. (See Chapman, supra, 386 U.S. at p.
24.) If the jury had been instructed
that in determining whether the “distance was substantial†(CALCRIM No. 1215),
it could consider whether the movement was incidental to the associated
offenses, it might not have found the kidnapping allegations true. Because the trial court’s omission of the
“merely incidental†language in CALCRIM No. 1215 was not harmless, we shall reverse
the simple kidnapping allegations and remand for a retrial and/or resentencing.
C. Booking
Photographs
Defendant contends the trial court
prejudicially erred by allowing the prosecution to introduce 10 booking
photographs of him: six taken during the
four years prior to the Doe incident and four taken afterwards. The photographs were introduced to support
the prosecution’s theory that defendant purposely changed his appearance
following the rape, showing a consciousness of guilt.
The photographs taken prior to the
Doe incident show that defendant kept his hair very short – his head was almost
shaved bald. The photographs taken after
the Doe incident show that defendant’s hair became progressively and significantly
longer. His facial hair changed as
well. In the two years prior to the Doe
incident, he kept a short goatee, but after the Doe incident it looked quite
different – at one point, he had only a moustache, and later, he grew the
goatee out.
1. Proceedings Below
Defendant moved in limine to exclude
the booking photographs pursuant to Evidence Code section 352. The prosecution opposed the motion, arguing
that the photographs demonstrated that defendant had deliberately changed his
physical appearance following the rape.
At the hearing on the motion,
defendant emphasized that his concern was with the jury’s discovery that he had
a criminal history. He argued that the
jury might conclude his convictions were for more serious crimes than his
actual criminal history reflected. He
stressed that it would be prejudicial for the jury to learn that he had been
arrested ten times. He suggested the
prosecutor obtain photographs from the Department of Motor Vehicles or just use
one photograph from before the rape and one from afterwards.
The prosecutor advocated for
admission of all the photographs. He
noted that defendant had been arrested six times between 2004 and 2008 with no
change in his appearance, but that his appearance progressively changed in the
four photographs after the rape. The
prosecutor noted that after the rape, police had circulated a composite drawing
and had even gone to defendant’s home, where defendant’s mother claimed that
“nobody here looks like that.â€
The trial court inquired whether
there were any steps that could be taken to reduce the prejudice. The prosecutor indicated the photographs
would be introduced with the booking information “excised†but acknowledged
that the jury would still be aware “that those are booking photos.†The prosecutor suggested that the jury could
be admonished.
The trial court found that the
photographs were relevant, since they showed defendant’s appearance was
consistent from 2004 to 2008, but changed in a “pretty significant†manner
after the rape. The trial court also found
that the photographs had potential for prejudice, but tentatively ruled that
they were admissible. The trial court
indicated that if defendant produced alternative photographs, they might be
used instead of the booking photographs.
Defendant requested the jury be informed
of the specific charges and outcomes of each arrest. The prosecutor suggested that instead, the
parties stipulate that none of the arrests involved sex crimes and that all
were for misdemeanors. Defendant agreed.
During opening statements, the prosecutor
noted that defendant’s appearance “was amazingly stable for more than four
years from 2004 to 2008,†but changed after a composite drawing circulated
after the rape.
The prosecution introduced the
photographs during Detective Greene’s testimony. The jury learned the exact dates of each
photograph. The jury was read a
stipulation stating that defendant “has no prior sex crimes and no felony
convictions. Exhibits 4 and 5 are
photographs taken from 2004 to 2010 during police contacts involving allegations
of misdemeanor crimes of a non-sexual nature.â€
During trial, one of the alternate
jurors sent a note to the trial court, asking if the booking photographs were
from “seperate [sic] contacts with law enforcement?†In response, the trial court re-read the
stipulation.
2. Analysis
Defendant does not dispute that the
booking photographs showed a change in his appearance following the incident,
nor does he dispute that a change in appearance can show consciousness of
guilt. (See People v. Randle (1992) 8 Cal.App.4th 1023, 1036.) Defendant contends that it was unnecessary
for the prosecution to introduce so many photographs because the jury thereby
learned that he had been arrested on 10 separate occasions.
Under Evidence Code section 352,
“[t]he court in its discretion may exclude evidence if its probative value is
substantially outweighed by the probability that its admission will (a)
necessitate undue consumption of time or (b) create substantial danger of undue
prejudice, of confusing the issues, or of misleading the jury.†In an Evidence Code section 352 analysis, “
‘prejudicial’ is not synonymous with ‘damaging,’ but refers instead to evidence
that ‘ “uniquely tends to evoke an emotional bias against defendant†’
without regard to its relevance on material issues. [Citations.]â€
(People v. Kipp (2001) 26 Cal.4th 1100, 1121.)
“[A]n appellate court applies the
abuse of discretion standard of review to any ruling by a trial court on the
admissibility of evidence. [Citations.]â€
(People v. Waidla (2000)
22 Cal.4th 690, 717.) Thus, error in
admitting evidence pursuant to Evidence Code section 352 may be found only “
‘on a showing that the court exercised its discretion in an arbitrary,
capricious or patently absurd manner that resulted in a manifest miscarriage of
justice. [Citations.]’ [Citation.]†(People
v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125.)
Generally, “evidence of mere arrests
is inadmissible because it is more prejudicial than probative,†due to the
danger that the jury will find that the defendant “has an untrustworthy and
criminal character.†(
1508, 1523.) Thus, booking photographs
showing that a defendant has been arrested on previous occasions should not be
admitted unless the photographs have strong probative value that is not
“substantially outweighed†by their prejudicial effect. (Evid. Code, § 352.)
In one case, the trial court erred
by admitting multiple booking photographs of the defendant because they did not
all have probative value on the issue for which they were introduced. In People
v. Vindiola (1979) 96 Cal.App.3d 370 (Vindiola),
overruled on other grounds in People v.
Carter (2003) 30 Cal.4th 1166 at page 1197, the booking photographs were
introduced on the issue of identification.
A prosecution witness testified that the perpetrator wore a heavy
moustache, while a defense witness testified that she had never seen the
defendant with a moustache. The
prosecutor presented several booking photographs showing the defendant with a
moustache. Since the most recent booking
photograph showed him with a moustache, there was no reason for the prosecution
to introduce the other photographs, which carried “the inevitable implication
that appellant suffered previous arrests and perhaps convictions.†(Vindiola,
supra, at p. 384.)
In contrast to Vindiola, the trial court here did not abuse its discretion by
finding that all 10 of the photographs had probative value concerning
defendant’s consciousness of guilt, and that their prejudicial effect did not
substantially outweigh that probative value.
Since defendant’s identity was established by the DNA evidence, the
probative value of the photographs was their reflection of defendant’s
consistent appearance during the four years prior to the Doe incident and his
progressive change in appearance following that incident. Introducing fewer photographs may not have
had the same probative value. As the
trial court found, the prejudicial effect of the photographs was minimized
because the booking information was removed and because of the stipulation,
which told the jury that defendant “has no prior sex crimes and no felony
convictions†and that defendant’s prior police contacts were all for
“allegations of misdemeanor crimes of a non-sexual nature.†The trial court reasonably determined that
the stipulation would preclude the jury from speculating that defendant’s
criminal history included any serious offenses and thus minimize any
prejudicial impact of the photographs.
(See People v. Little (2012)
206 Cal.App.4th 1364, 1378 [trial court appropriately dealt with potential
prejudice of prior conviction evidence by giving parties “an opportunity to
work out a stipulation amongst themselvesâ€].)
Even assuming that the trial court
should have admitted fewer booking photographs, we would find the error
harmless, whether we apply the test of People v. Watson (1956) 46 Cal.2d
818 (Watson) or – because defendant
claims the error implicates federal due process concerns – the more stringent
standard of Chapman, supra, 386 U.S. 18.
First, there was little likelihood
that the jury would use the booking photographs to find that defendant had a
disposition to commit similar offenses to those charged. During closing argument, defendant conceded
that he had sexual intercourse with Doe as established by the DNA evidence, so
the only disputed issues at trial were whether Doe consented to the sexual
acts, whether defendant assaulted and robbed her, and whether the movement met
the legal standards for kidnapping. The
stipulation ensured that the jury would not speculate that defendant had been
arrested for other sex crimes or felony offenses like those charged and would
not conclude that he was probably guilty of the current offenses based on his
criminal history. (See
453 (Beagle) [“ ‘when the prior
conviction is for the same or substantially similar conduct for which the
accused is on trial,’ †there is an “ ‘inevitable pressure on lay jurors to
believe “if he did it before he probably did so this time†’ â€].)
Second, the verdicts rendered by the
jury show that it did not use the booking photographs in an improper manner –
i.e., to find that defendant had a disposition to commit criminal
activity. The jury acquitted defendant
on the robbery charge (as well as the lesser-included offense of theft) and
deadlocked on the aggravated kidnapping charge and allegations, showing that it
conscientiously considered the evidence as to each charged offense. (See People
v. Williams (2009) 170 Cal.App.4th 587, 613 (Williams) [jury’s
acquittal of one charge, finding of lesser-included offense on another charge,
and not-true finding on one gang allegation showed that improper admission of
gang evidence and prior crimes evidence was harmless].)
Third, the evidence of rape,
forcible penetration, and assault was overwhelming. (See Williams,
supra, 170 Cal.app.4th at p. 613 [erroneous admission of evidence shown
where the “admissible evidence overwhelmingly established defendant’s
guiltâ€].) There was no evidence
suggesting a reason why Doe would consent to having sex with defendant, a
stranger, at night on the side of the road.
Doe’s injuries were consistent with the forcible movement, forcible
intercourse, and assault she described.
The witness observations of Doe’s demeanor were consistent with someone
who had recently been assaulted.
In light of the stipulation, the
jury’s verdicts, and all of the evidence, it is not reasonably probable that a
result more favorable to the defendant would have been reached with fewer
booking photographs (see Watson, supra, 46 Cal.2d at p. 836) and any
error in admitting all 10 booking photographs was harmless beyond a reasonable
doubt (see Chapman, supra, 386 U.S. at p. 24).
D. Failure
to Instruct On Defendant’s Oral Admissions
Defendant asserts that the trial
court erred by failing to instruct the jury to consider his extrajudicial oral
statements with caution (CALCRIM No. 358) and that he could not be convicted of
a crime based solely on his oral admissions (CALCRIM No. 359).
1. Instructions at Issue
CALCRIM No. 358 provides: “You have heard evidence that the defendant
made [an] oral or written statement[s] (before the trial/while the court was
not in session). You must decide whether the defendant made any (such/of these)
statement[s], in whole or in part. If
you decide that the defendant made such [a] statement[s], consider the
statement[s], along with all the other evidence, in reaching your verdict. It is up to you to decide how much importance
to give to the statement[s]. [¶] [Consider with caution any statement made by
(the/a) defendant tending to show (his/her) guilt unless the statement was
written or otherwise recorded.]â€
CALCRIM No. 359 provides: “The defendant may not be convicted of any
crime based on (his/her) out-of-court statement[s] alone. You may only rely on the defendant’s
out-of-court statements to convict (him/her) if you conclude that other
evidence shows that the charged crime [or a lesser included offense] was
committed. [¶] That other evidence may be slight and need
only be enough to support a reasonable inference that a crime was
committed. [¶] The identity of the person who committed the
crime [and the degree of the crime] may be proved by the defendant’s
statement[s] alone. [¶] You may not convict the defendant unless the
People have proved (his/her) guilt beyond a reasonable doubt.â€
2. Analysis
Defendant contends that the oral
admissions and corpus delicti instructions were warranted here because there
was evidence that he told Doe he was going to “fuck [her] to death†before the rape and said “I’m done, bitchâ€
after the rape.
The Attorney General acknowledges
that defendant’s statements meet the definition of oral admissions, such that
the trial court was required to instruct the jury pursuant to CALCRIM No. 358,
but disputes that the error was prejudicial.
Perhaps because defendant’s argument focuses primarily on CALCRIM No.
358, the Attorney General does not address the issue of the trial court’s
failure to instruct the jury pursuant to CALCRIM No. 359. We will assume the same argument applies and
proceed to consider whether the trial court’s failure to give both instructions
amounted to reversible error.
Defendant claims reversal is
required under the Watson standard
for state law error, claiming it is reasonably probable that the trial court’s
failure to give the instructions affected the jury’s verdict. Although defendant does not advocate for
application of the Chapman standard,
he does claim that the error denied him due process of law under the federal
constitution.
As our Supreme Court has explained,
in analyzing the effect of a trial court’s failure to instruct pursuant to
CALCRIM Nos. 358 and 359, we apply “the normal standard of review for state law
error: whether it is reasonably probable
the jury would have reached a result more favorable to defendant had the
instruction been given. [Citations.] . . .
Mere instructional error under state law regarding how the jury should
consider evidence does not violate the United States Constitution. [Citation.]
Failure to give the cautionary instruction is not one of the ‘ “very
narrow[ ]†’ categories of error that make the trial fundamentally unfair. [Citation.]â€
(People v. Carpenter (1997) 15 Cal.4th 312, 393; see also
Defendant does not explain how
failure to give the instructions was prejudicial in this case. Instead, he simply cites other cases that
found prejudice where the court failed to give the oral statement instruction. In each of the cited cases, the defendant’s
oral statements were a crucial part of the prosecution’s case. (See People
v. Ford (1964) 60 Cal.2d 772, 800 [defendant’s statements were “ ‘vitally
important evidence’ â€]; People v. Bemis
(1949) 33 Cal.2d 395, 401 [defendant’s statements were “the only evidence that
connected defendant with the crimeâ€]; People
v. Lopez (1975) 47 Cal.App.3d 8, 14 [defendant’s statements had “vital
bearing . . . upon the only substantial issue the jury was required to resolveâ€];
People v. Henry (1972) 22 Cal.App.3d
951, 959 [case turned on whether defendant had admitted possession of jacket
containing marijuana]; Stork v. State
(Alaska 1977) 559 P.2d 99, 103 [evidence of defendant’s statements “was a
substantial factor leading to his convictionâ€].)
The cited cases are distinguishable
from the instant case, where defendant’s statements were not critical to the
prosecution’s case. Defendant’s
statements merely corroborated the other evidence of the rape, which included Doe’s
testimony, the DNA evidence, the physical evidence of her injuries, testimony
about Doe’s appearance and demeanor, and the evidence of defendant’s change in
appearance following the incident. (See
923 [failure to give cautionary instruction regarding defendant’s statements
was harmless in light of the “comparatively marginal role defendant’s statement
must have played in the totality of the recordâ€], overruled on other grounds by
People v. Hill (1998) 17 Cal.4th 800,
823, fn. 1 (Hill).) Further, there was no conflict in the
evidence about what defendant said, and the prosecutor mentioned defendant’s
statements only briefly during closing
argument – primarily when discussing the robbery, of which defendant was
acquitted.
harmless error, the trial court’s failure to instruct the jury to consider
defendant’s statements with caution and to give a corpus delicti instruction
was not prejudicial.
E. Cumulative
Error
Defendant presents a very brief
argument that the cumulative effect of the errors deprived him of a fair
trial. He does not specify which errors
his argument pertains to, or how the errors, “though independently harmless,â€
rose “by accretion to the level of reversible and prejudicial error.†(Hill,
supra, 17 Cal.4th at p. 844.) “
‘[A]n appellate court [is not] required to consider alleged error where the
appellant merely complains of it without pertinent argument. [Citation.]’ †(Plotnik
v. Meihaus (2012) 208 Cal.App.4th 1590, 1615.)
In any event, we have determined
that reversal of the kidnapping allegations is required, so the cumulative
effect of any errors could only pertain to the rape, penetration, and assault counts. With respect to those counts, defendant has
challenged the trial court’s admission of the booking photographs and the trial
court’s failure to instruct the jury pursuant to CALCRIM Nos. 358 and 359. As discussed above, the trial court did not
abuse its discretion by admitting the booking photographs, and any error was
harmless. Likewise, the failure to give
CALCRIM Nos. 358 and 359 was harmless.
“A defendant is entitled to a fair
trial, not a perfect one.†(People v.
Mincey (1992) 2 Cal.4th 408, 454.)
When a defendant invokes the cumulative error doctrine, “the litmus test
is whether defendant received due process and a fair trial.†(People v. Kronemyer (1987) 189
Cal.App.3d 314, 349 (Kronemyer).)
Accordingly, any claim based on cumulative error must be assessed “to
see if it is reasonably probable the jury would have reached a result more
favorable to defendant in their absence.â€
(Ibid.)
Here, where the few errors
concerning the substantive offenses were harmless, defendant cannot establish
that it is reasonably probable he would have a received a more favorable result
in the absence of the errors. In other
words, we are convinced that defendant “received due process and a fair trial.†(Kronemyer, supra, 189 Cal.App.3d at
p. 349.)
F. DNA
Collection
Beginning January 1, 2009, the DNA
and Forensic Identification Database and Data Bank Act of 1998 (Act) required
“any adult person arrested or charged with any felony offense†to provide a
blood sample and buccal swab sample. (§§
295, subd. (a), 296, subd. (a)(2)(C).)
The constitutionality of this part of the Act is now being considered by
the California Supreme Court in People v.
Buza (2011) 197 Cal.App.4th 1424,
review granted October 19, 2011, S196200 (Buza). Briefing in Buza has been deferred pending the United States Supreme Court’s
decision in Maryland v. King (2012)
422 Md. 353, cert. granted Nov. 9, 2012, No. 12–207, __ U.S. __ [133 S.Ct. 594,
184 L.Ed. 2d 390], in which the high Court is considering a Fourth Amendment
challenge to a Maryland statute that is similar to the Act.
Defendant notes that his DNA was
taken following a felony arrest for which no charge was ever filed,
and that he was connected to the Doe incident only because of that DNA
sample. He contends that if the Act is
unconstitutional, his Fourth Amendment rights were violated and that all
evidence obtained as a result should have been suppressed. He acknowledges that he did not raise this
claim below but contends this court may review the issue for various
reasons: (1) because it involves a pure
question of law (see, e.g., People v.
Yeoman (2003) 31 Cal.4th 93, 118), (2) by reviewing the claim as one
involving ineffective assistance of counsel, or (3) by exercising our inherent
discretion (see People v. Williams
(1998) 17 Cal.4th 148, 161, fn. 6).
The Attorney General argues that we
should not consider the merits, pointing out that an appellate court “is in
fact barred†from considering an issue not raised below “when the issue
involves the admission (Evid. Code, § 353) or exclusion (id., § 354) of
evidence.†(People v. Williams, supra, 17 Cal.4th at p. 161.) The Attorney General addresses the
ineffective assistance argument, asserting that reasonable trial counsel could
have determined there was no basis for bringing a challenge to the Act based on
the state of the law at the time.
In light of defendant’s failure to
raise this issue below, we believe the appropriate way to examine this claim is
through defendant’s ineffective assistance of counsel argument.
1. Standard of Review
“To prevail on a claim of ineffective assistance of counsel, a
defendant ‘ “must establish not only deficient performance, i.e.,
representation below an objective standard of reasonableness, but also
resultant prejudice.†’ [Citation.] A court must indulge a strong presumption
that counsel’s conduct falls within the wide range of reasonable professional
assistance. [Citation.] Tactical errors are generally not deemed
reversible, and counsel’s decisionmaking must be evaluated in the context of
the available facts. [Citation.] To the extent the record on appeal fails to
disclose why counsel acted or failed to act in the manner challenged, we will
affirm the judgment unless counsel was asked for an explanation and failed to
provide one, or unless there simply could be no satisfactory explanation. [Citation.]
Moreover, prejudice must be affirmatively proved; the record must
demonstrate ‘a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome.’ [Citation.]â€
(People v. Maury (2003) 30
Cal.4th 342, 389 (Maury).)
2. Section 296
In
the present case, defendant argues that trial counsel was ineffective in failing to move
to suppress the evidence obtained as a result of his DNA sample pursuant to section 296. We therefore provide a brief overview of that
section.
As noted above, section 296 is part
of DNA and Forensic Identification Data Base and Data Bank
justice and law enforcement agencies within and outside California in the
expeditious detection and prosecution of individuals responsible for sex
offenses and other violent crimes, the exclusion of suspects who are being
investigated for those crimes, and the identification of missing and
unidentified persons, particularly abducted children.’ †(Robinson,
supra, at pp. 1116-1117, fn.
omitted.)
The Act has been amended several
times. (Robinson, supra, 47
Cal.4th at p. 1117, fn. 13.) Most
recently, “[t]he voters of this state approved Proposition 69 on November 2,
2004. Proposition 69 made significant
amendments to the Act and was an urgent law that became immediately effective
on November 3, 2004.†(
Cal.App.4th 1494, 1503 (Good).) Relevant here, “Proposition 69 amended
section 296, subdivision (a) to substantially broaden the scope of DNA sample
collection. The new subdivision (a)(1)
requires DNA samples from any adult or juvenile convicted of
offenses in the prior law.
[Citation.] The new subdivision
(a)(2) requires samples from any adult arrested
for or charged with felony sex offenses requiring registration; murder or
voluntary manslaughter or the attempt thereof; and, beginning in 2009, any felony
offense.†(Good, supra, at p. 1503,
fn. omitted.)
Sections 296 and 296.1 govern the
collection of DNA samples from adult felony arrestees. The current version of section 296,
subdivision (a)(2)(C) provides in part:
“The following persons shall provide buccal swab samples, . . . and any
blood specimens or other biological samples required pursuant to this chapter
for law enforcement identification analysis:
[¶] . . . [¶] Commencing on
January 1 of the fifth year following enactment of the act that added this
subparagraph, as amended, any adult person arrested or charged with any felony
offense.â€
Section 296.1, subdivision (a)(1)(A)
currently provides: “Each adult person
arrested for a felony offense as specified in subparagraphs (A), (B), and (C)
of paragraph (2) of subdivision (a) of Section 296 shall provide the
buccal swab samples and thumb and palm print impressions and any blood or other
specimens required pursuant to this chapter immediately following arrest, or
during the booking or intake or prison reception center process or as soon as
administratively practicable after arrest, but, in any case, prior to release
on bail or pending trial or any physical release from confinement or custody.â€
3. Case Law Concerning DNA Collection and Section 296
The California Supreme Court has
ruled that the nonconsensual collection of DNA samples from a
Fourth Amendment “as ‘ “ ‘judged by balancing its intrusion on the
individual’s Fourth Amendment interests against its promotion of legitimate
government interests.’ †’
[Citation.]†(
does not preclude collection of DNA sample from juvenile adjudicated under
Welf. & Inst. Code, § 602]; Coffey v.
Superior Court (2005) 129 Cal.App.4th 809, 823 [for purposes of the Act,
defendant was convicted of a felony when he pleaded guilty to a wobbler offense
as a felony].)
As noted above, at present, the issue of whether the
Fourth Amendment precludes the nonconsensual collection of DNA samples from a
felony arrestee under section 296,
subdivision (a)(2)(C) is pending before the California Supreme Court in
the issue and determined that the Act, “to the extent it requires felony
arrestees to submit a DNA sample for law enforcement analysis and inclusion in
the state and federal DNA databases, without independent suspicion, a warrant
or even a judicial or grand jury determination of probable cause, unreasonably
intrudes on such arrestees’ expectation of privacy and is invalid under the
Fourth Amendment . . . .†(
The Buza decision was published on August 4, 2011, after trial
b
| Description | Defendant Rene Hernandez appeals after conviction, by jury trial, of rape (Pen. Code, § 261, subd. (a)(2)),[1] penetration with a foreign object (§ 289, subd. (a)(1)), and assault by means of force likely to produce great bodily injury (former § 245, subd. (a)(1)). The jury found true allegations that defendant kidnapped the victim before committing the rape and penetration. (§ 667.61, subds. (b), (e)(1).) Defendant was sentenced to consecutive terms of 15 years to life for the rape and penetration, with the term for the assault stayed pursuant to section 654. On appeal, defendant contends: (1) there was insufficient evidence to support the kidnapping allegations; (2) the trial court failed to instruct the jury that in determining whether defendant kidnapped the victim, it should consider whether the forcible movement was incidental to the commission of the associated offenses; (3) the trial court erred by allowing the prosecution to admit 10 booking photos of defendant to show his changed appearance and consciousness of guilt; (4) the trial court failed to instruct the jury to view defendant’s oral admissions with caution and failed to give a corpus delicti instruction; (5) the trial court coerced a verdict on the kidnapping allegations by directing the jury to continue deliberating on those allegations after the jury reported a deadlock on count 1; (6) the cumulative effect of the errors denied defendant due process and a fair trial; (7) section 654 barred the trial court from imposing One Strike law sentences for both the rape and penetration with a foreign object based on the same act of kidnapping; and (8) this court should order a suppression hearing or find that trial counsel was ineffective for failing to bring a suppression motion, because defendant’s DNA was taken after arrest on an unrelated felony charge for which he was not convicted, in violation of the Fourth Amendment. |
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