P. v. Hasler

Filed 2/15/08 P. v. Hasler CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION THREE

Defendant Luke Hasler was convicted by a jury of first degree murder and kidnapping and sentenced to life in prison without the possibility of parole. He contends his conviction must be reversed for three reasons: (1) the court abused its discretion when it admitted evidence of uncharged misconduct; (2) the court erred when it failed to instruct the jury on mistake of fact; and (3) the statutory special circumstance for murder committed during a kidnapping is unconstitutionally vague. We reject all three reasons, find no prejudicial error, and therefore affirm.

Background

The Odd Fellows Dinner

On March 13, 2004, defendant attended a dinner at the Odd Fellows Hall in Guerneville. He became noticeably intoxicated after drinking at the bar for several hours. Near the end of the dinner he briefly left the hall, and when he returned his demeanor had changed and he appeared to be more aggressive. Following the dinner defendant kicked the bar hard enough to break a bottle of alcohol and threw or knocked over a table when he was helping clean the hall. One acquaintance described him as acting like somebody that was on speed and bouncing off the walls.

Defendant left the hall at 12:30 a.m. He pulled his pickup truck out of the parking lot with some difficulty and drove away erratically, going the wrong way on a one-way street. The truck was a large red pickup with a double cab and the engine made a loud deep sound.

Michelle Johnsons Death

Michelle Johnson was a 32-year-old mother of two. Earlier in the evening of March 13, a group of Johnsons friends helped her move into an apartment located a couple of miles west of downtown Guerneville. Johnson and her friends Sunshine Hunter and Stacey Lormer drove to the Bull Pen bar in Guerneville for last call around 12 a.m. Johnson went into the bar but Hunter and Lormer left to give a friend a ride home, and told Johnson they would come back in 15 minutes. Johnson stayed at the bar until 12:52 a.m., and left shortly before her friends returned. She was seen walking west along Main Street and Highway 116, on the side of the road facing oncoming traffic. She did not appear to be in any distress and was carrying her jacket and smiling.

Travis King lived in a tent near downtown Guerneville between Highway 116 and the Russian River. Late one night in March 2004, he heard car doors closing and overheard an argument. A male voice said, Get in the car and Get in the fucking car. A woman responded No way. . . . No fucking way. King heard something being grabbed or rustled, followed by a loud clunk as though a cement block was being thrown into a truck, and then what sounded like a brief struggle followed by the vehicle quickly driving away. He was not sure whether he heard one or two male voices or more than one car. The next morning he learned that Michelle Johnson was missing, and a few days later concluded that the sounds he heard were related to her disappearance.

Timothy Mills was Johnsons boyfriend. Mills testified that he and Dusty Rhodes were in Johnsons apartment around 1:00 a.m. on March 14 when he heard a vehicle drive by and a woman scream for help. He and Rhodes went outside. Rhodes testified he heard [v]ery, very loud screams. A woman in a dark-colored vehicle screamed Please help me. Oh, God, help me. Somebody please. The driver of the truck alternately braked and accelerated as if [t]o throw the vehicle out of balance. [] . . . [] You could see the lights bouncing. They go down and then they would come up. The truck was traveling west at about 45 miles per hour.

Hunter and Lormer returned to Johnsons apartment to look for her and pulled up in front when they saw a large dark-colored or red truck with a king cab pass by going west. They heard its loud engine and music blasting, and saw a woman with long dark hair straddling the tailgate, screaming, flailing her arms around. They did not realize the woman was Johnson. The brake lights flashed a couple of times and the truck continued westward until it was out of sight.

Jane Frazee lived in the unit upstairs from Johnson and managed the building. She also went outside when she heard screams and saw a red or maroon full-size pickup truck heading west between 45 and 55 miles per hour. The brake lights flashed two or three times. A woman was straddling the tailgate, waving her hands over her head and her hair was flying in the wind. She was screaming Please somebody help. Help. Please help me.  [] . . . [] . . . Oh, God, please help me. The others said it was probably just a bunch of kids messing around, but Frazee said No, that was too heart-wrenching and went inside to look for the phone to call 911.

Graham Simi lived with Tim Mills about 300 yards west of Johnsons apartment. He also heard a womans loud screaming and pleas of desperation coming from a loud vehicle traveling west. Simi heard her repeatedly scream God, help me. Somebody help me. Help me. The voice sounded like it was coming from outside the vehicle. Then he heard the truck stop. The screaming stopped abruptly and about a minute later a door slammed. He heard the vehicle start up again 20 or 30 seconds later.

Robert Ignacio lived next door to Johnsons apartment. Around 1:00 a.m. he saw a large red pickup truck with an extended cab barreling down the road and heard screaming and loud music. Ignacio saw a woman sitting on the back of the truck, screaming and saying help me. As the truck continued west on Highway 116, Ignacio saw the brake lights flash three times. About 10 minutes later Ignacio saw the truck returning towards Guerneville. The woman was no longer on the tailgate and he did not hear any screaming or loud music.

Dusty Rhodes testified that he and Mills tried to catch up to the truck but turned around after three or four miles. On the way back they saw Johnsons blue and white leather jacket on the eastbound shoulder of the road. They also saw a wet spot in the middle of the highway, which turned out to be blood. When they returned to the house, they called 911.

Officers dispatched to the scene found a pool of blood in the center of the road, several pieces of jewelry, a broken watch, a tooth, an unopened can of Budweiser beer, a water bottle, and a bottle of tonic water. The road looked as if something saturated with blood had been dragged across it off to the side of the road. Criminalist Richard Waller testified that the blood spatter and smearing of blood away from the pool was consistent with a person being struck in the head while close to the pavement, falling to the ground and being dragged. Defendants fingerprint was on the bottle of tonic water found at the scene.

Johnsons body was found on March 18, 2004, in an eddy of the Russian River. She was naked and her long hair had been cut off. Johnsons upper jaw was fractured in the middle and behind the eye tooth; her lower jaw was broken all the way through and two incisors were missing. She had numerous lacerations and contusions to her scalp, forehead, face and neck, some severe enough to expose bone or muscle. She had bleeding on the surface of her brain and in the cortex. There were two large bruises on her left shoulder; two bruises towards the center of her chest; a large contusion below her breast; and bruises on her hands and elbows. Bleeding in her neck muscles was consistent with impact or strangulation. There were bruises on her arms that were consistent with finger marks. Johnson suffered all of these injuries while still alive and all were to the front of her body.

Forensic pathologist Dr. Brian Peterson testified that Johnson was not injured in a fall from a moving truck. A fully clothed woman of approximately Johnsons height and weight who fell or jumped off the bed of a pickup truck travelling at 50 to 55 miles per hour would incur abrasions, or road rash, from skidding along the pavement before or when her body started tumbling. She would likely have fractured arms and legs; have injuries to multiple surfaces of her body; and injury to her large organs, such as the liver, lungs and spleen. Johnson did not have any such injuries. In Dr. Petersons opinion, her injuries were consistent with the application of blunt force trauma upon her by another person, using either a weapon or a fist.

Dr. Peterson also opined that Johnson was alive when she went into the river. The petrous bone in her skull base had hemorrhaged and she had wet and heavy lungs surrounded by bloody fluid that taken together indicate death by drowning. Her jaw was also substantially swollen and the swelling indicated that she was alive for a significant period of time after it was broken. Dr. Peterson testified that while blunt force head injuries like Johnsons could have independently caused death, in her case they were only contributing factors.

Detectives questioned defendant about Johnsons disappearance. He initially seemed calm and gave the detectives permission to examine the exterior of his truck, but he became nervous when they asked to search the interior. The inside of the cab looked very clean, as though it had been freshly detailed.

Defendant told his friend Michael Potts that he was questioned about the missing woman. Defendant claimed he knew nothing and that he had gone straight home after the Odd Fellows dinner. The next day defendant seemed more concerned and evasive, and eventually he told Potts there had been an accident and he was fucked up. Potts asked defendant where the missing woman was. Defendant said she was in the river.

In the days following the murder defendant told similar stories to his friend Bret Ingraham and girlfriend Melissa McConnell. He told McConnell he accidently struck Johnson with his truck when she was walking down Highway 116 and he came around a curve. He said Johnson got into the back of his truck so he could get her help; and that she was killed when she jumped out of the moving truck and hit the road. McConnell asked defendant if he had sex with Johnson and he said he had not. Defendant told Ingraham that he accidentally clipped Johnson with his side view mirror and was driving her to the hospital when she freaked out, straddled the tailgate, waved and screamed at some people she knew, and jumped out of the truck while he was driving at 50 to 55 miles per hour.

Defendants Testimony

Defendant testified he was hammered when he left the Odd Fellows dinner. He felt like going for a drive and decided to head to a friends house west of Guerneville. When he arrived the lights were off. He fell asleep in his truck for 15 to 20 minutes and then started back to town. He was driving east on Highway 116 toward Guerneville at around 55 miles per hour when he looked down to change the CD. When he looked up he saw Johnson in the road. He swerved and braked but was unable to avoid hitting her. He felt a bunch of bumps and thought he had run her over. He turned and drove back to the site of the impact, where he saw Johnson stumbling around in the road. He pulled over and lowered the truck tailgate because I figured I needed to get her to a hospital. He was pretty freaked out. It was too dark to see if she was injured but he assumed that she had to be injured really bad. Defendant pleaded with Johnson to let him take her to a hospital but she did not respond, so he thought she did not understand what he was saying. Eventually she approached the truck and he helped her climb into the back. Johnson was standing in the bed of the truck, and defendant assumed she would sit down once he started driving.

When defendant started driving Johnson fell down in the back; there was a loud noise and she started wailing; [i]t was like moaning, screaming. Defendant drove a short distance, then turned around heading eastbound and back to town. Meanwhile, Johnson was screaming and flailing around in the back of the truck. Then defendant heard a sudden noise like something hitting the rear window and a noise on the roof of the truck, as if Johnson were trying to climb over the cab. He slowed down, and just before he came to a stop it just got quiet all of a sudden. Johnson was no longer in the truck. Defendant panicked and drove off, but then turned around and went back because he wanted to take her to the hospital. He saw Johnson lying face down in the road.

Defendant pulled over. He heard Johnson take two fast, labored breaths followed by one long breath; then she stopped breathing. He really started panicking. He dragged Johnson out of the road. He tried to put her in the back of his truck but he fell down and Johnson fell on top of him. Defendant listened for breathing and felt her neck for a pulse, but there was none. He was going to try to give her mouth to mouth resuscitation but decided against it because he thought she might have a punctured lung, and also she was just really bloody, she had leaves and stuff in her hair. I couldntit was bad. Defendant actually caressed her and I wished that I could make her all pretty again and put her back together. Her face was just a mess, her tooth was hanging out. Then defendant vomited on Johnsons hair and clothes.

Because he thought Johnson was dead, defendant drove back towards Guerneville and intended to go to the sheriffs department or fire department but he panicked when he saw a CHP officer run out of the sheriffs department. Instead he kept driving toward his house. He stopped at the summer river crossing at Odd Fellows Road and decided to hide Johnsons body. He removed her clothing and cut off her hair because they were soiled with his vomit and his dogs hair. He threw away her clothes and hair in a trash truck and dumped Johnsons body in the river. Then he hosed down his truck and, a few days later, wiped down the interior to remove any traces of her blood.

Defendant testified that he never took Johnson anywhere against her will and he never intended to kill her. He said he lied to sheriffs deputies when they interviewed him about the incident because he was afraid. He denied playing his stereo loudly before or after the accident. He also denied seeing Johnson straddle the tailgate of his truck.

The prosecutor argued that defendant was drunk and in an aggressive mood when he left the Odd Fellows dinner. He spotted Johnson walking home from the Bull Pen and, when she refused to get in his truck, struck her in the face, put her in the bed of his truck and drove away from town intending to sexually assault her in a secluded location. When Johnson regained consciousness and started screaming for help from the bed of the truck, defendant turned up his stereo to cover her screams and tried to knock her down by braking and accelerating. When he pulled his truck over, Johnson tried to flee and defendant beat her savagely to stop her flight and her screams. Then he drowned her in the river and tried to destroy the evidence of what he had done.

The defense argued that defendant accidentally struck Johnson with his truck and she then fell or jumped to her death when he was driving to town to get her help. He then panicked, disposed of her body in the river, tried to hide the evidence, and lied to his friends about how it had happened because he did not want to admit what he had done.

The jury found defendant guilty of first degree murder and kidnapping; found true a kidnapping special-circumstance allegation and an allegation of great bodily injury; found that the crime involved great violence disclosing a high degree of cruelty and callousness; rejected an allegation of great bodily injury with brain injury or paralysis; and rejected two other aggravating circumstances allegations. The court sentenced defendant to life in prison without the possibility of parole.

Discussion

I.Evidence of Uncharged Conduct

The prosecution moved in limine to admit evidence that defendant had committed three prior assaults on two women in order to disprove defendants claim that Johnsons death was an accident. The prosecution also moved to admit evidence that defendant leered at two young women and pressured one of them for her phone number at the Odd Fellows dinner as evidence of his state of mind shortly before the murder. The court granted the motion over defense objections. Defendant contends the admission of both categories of evidence was an abuse of the courts discretion under Evidence Code sections 352 and 1101.^[1] We disagree.

A. The Testimony

Melissa McConnell

Melissa McConnell testified about an argument she had with defendant in 2002. Defendant grabbed her hair, put his hand around her neck and pushed her down onto a couch. When McConnell tried to call 911, defendant took the phone from her, yanked the phone from the wall and broke it by hitting it against a table. McConnell was leaving the house to use a pay phone when sheriffs deputies arrived.

Just before the foregoing direct testimony was introduced, the court admonished the jury pursuant to CALJIC No. 2.50 that Evidence is about to be introduced for the purpose of showing that the defendant committed a crime other than that for which he is on trial. . . . This evidence, if believed, may not be considered by you to prove that the defendant is a person of bad character or that he has a disposition to commit crimes. It may be considered by you only for the limited purpose if it tends to show the existence of the intent which is a necessary element of the crime charged, or the absence of mistake or accident.

Jamie Poggendorf

Jamie Poggendorf testified that she met defendant in 1992 and dated him for two and a half years.^[2] In December 1992 she and defendant attended a party together. Defendant drank too much and his demeanor was obnoxious, embarrassing, loud, careless. They left the party around 11:00 p.m. While Poggendorf was driving them home defendant continued to act obnoxious and drunk, and kept grabbing the steering wheel. Poggendorf tried to push his hands away from the steering wheel and defendant hit her in the face and gave her a bloody nose. During an argument the following spring defendant accused Poggendorf of cheating on him. Defendant hit her on the side of the head and knocked her down onto a dresser.

The trial court instructed the jury pursuant to CALJIC Nos. 2.09, 2.50, and 2.50.1 regarding the limited purpose of the McConnell and Poggendorf testimony. Before deliberations jurors were instructed: Evidence has been introduced for the purpose of showing that the defendant committed crimes other than that for which he is on trial. This evidence, if believed, may not be considered by you to prove that the defendant is a person of bad character or that he has a disposition to commit crimes. It may be considered by you only for the limited purpose of determining if it tends to show the existence of the intent which is a necessary element of the crime charged, including the absence of mistake or accident. [] For the limited purpose for which you may consider such evidence, you must weigh it in the same manner as you do all other evidence in the case. You are not permitted to consider such evidence for any other purpose. The court reminded the jury that the so-called prior crimes evidence that came in with regard to two particular witnesses was for use in no other way. Do not consider this evidence for any purpose except the limited purpose for which it was admitted.

The Gonzalez Sisters

Melissa Gonzalez testified she was 15 years old and her sister, Sarah Gonzalez, was 19 years old when they were both helping to serve dinners at the Odd Fellows dinner. Melissa passed defendant a few times while he was seated at the bar. He appeared to be drunk. At one point defendant tried to look down her shirt when she bent over to clean up a spill.

Sarah Gonzalez testified that defendant spent most of that night at the bar. Sarah had brief conversations with defendant throughout the night, but she did not make much eye contact with him because defendant was staring at Sarahs chest. Anthony Haberthur was tending bar and testified that Sarah complained to him about defendant checking her out. Sarah testified that defendant was drinking heavily, slurring his words, and acting overly familiar. Defendant asked Sarah for her phone number. She told defendant her boyfriend would not like that, but he insisted and gave his cell phone to her. Sarah entered a random number. After that defendant left the hall briefly, and when he returned he had become very aggressive and agitated. While helping clean up after the dinner, defendant knocked down a table and kicked the bar, causing a bottle to break onto the floor.

B. Analysis

McConnell and Poggendorf

Defendant contends the evidence of his uncharged offenses against Poggendorf and McConnell should have been excluded under section 1101. We disagree. The evidence was properly admitted to show Michelle Johnsons killing was motivated by defendants intent to control and punish her and not as a result of an accident or mistake.

Section 1101 makes inadmissible evidence of a persons character or character trait used to prove his or her conduct on a specific occasion ( 1101, subd. (a)), but provides that evidence of a prior crime or other act is admissible to prove motive, intent, or absence of mistake or accident. ( 1101, subd. (b).) Our Supreme Court has long recognized   that if a person acts similarly in similar situations, he probably harbors the same intent in each instance [citations], and that such prior conduct may be relevant circumstantial evidence of the actors most recent intent. The inference to be drawn is not that the actor is disposed to commit such acts; instead, the inference to be drawn is that, in light of the first event, the actor, at the time of the second event, must have had the intent attributed to him by the prosecution.  (People v. Rowland (1992) 4 Cal.4th 238, 261.) The least degree of similarity (between the uncharged act and the charged offense) is required in order to prove intent. [Citation.] [T]he recurrence of a similar result . . . tends (increasingly with each instance) to negative accident or inadvertence or self-defense or good faith or other innocent mental state, and tends to establish (provisionally, at least, though not certainly) the presence of the normal, i.e., criminal, intent accompanying such an act . . . . [Citations.] In order to be admissible to prove intent, the uncharged misconduct must be sufficiently similar to support the inference that the defendant  probably harbor[ed] the same intent in each instance.   (People v. Ewoldt (1994) 7 Cal.4th 380, 402.)

When McConnell tried to call 911 for help, defendant ripped the phone from the wall and broke it. Here, the prosecution argued that defendant beat Johnson in the mouth and broke her jaw so she would stop calling out for help. The evidence that defendant had previously used force and violence to prevent McConnell from calling for help was relevant to prove that he had the same intent when he beat Johnson and broke her jaw.

Poggendorf testified that defendant struck her on the side of her head hard enough to knock her against a dresser because he thought she had cheated on him. On another occasion he struck her in the face when she tried to stop him from grabbing the steering wheel while she was driving. Here, the prosecutor argued that defendant initially punched Johnson and stunned her or knocked her out because she refused to get in his truck. He subsequently beat her face when she screamed for help and tried to escape. In this case and with Poggendorf, defendant had the common intent of physically controlling and punishing his female victim. That was a sufficient basis to admit the evidence under section 1101. (See People v. Kipp (1998) 18 Cal.4th 349, 371.) Moreover, the second time he beat her defendant told Poggendorf that it was an accident. In light of defendants claims that he hurt Johnson accidentally, the evidence that he previously claimed a punch in the head was an accident was relevant and admissible under section 1101, subdivision (b), to prove the absence of mistake or accident.

Defendant contends these prior offenses should have been excluded because they were strikingly dissimilar to the charged offense. Specifically, he argues that (1) Poggendorf and McConnell were his girlfriends, whereas Johnson was a stranger; and (2) while he may have hit his girlfriends with his bare hands once or twice during arguments, the prosecution theory was that he beat Johnson with a tool or implement. As to his first point, the evidence about Poggendorf and McConnell was relevant to show defendants intent to physically dominate and control a woman; that Johnson was not, like the other two, romantically involved with defendant does not vitiate that point of relevance. In any event, because the prosecution theory was that defendants attack on Johnson was sexually motivated, there was also a common sexual aspect to the charged and uncharged offenses.

Defendant also misrepresents the evidence and the case against him. Although the prosecutor asked the forensic witnesses^[3]whether Johnsons injuries could have been caused by a weapon, he also asked them if her injuries could have been caused by fists alone. Both experts testified that they could have. Moreover, the prosecutor specifically elicited evidence that there were injuries on defendants hands to show that he beat Johnson with his fists. In sum, the evidence was properly admitted under section 1101, subdivision (b).^[4]

The Gonzalez Sisters

Defendant argues that the court should have excluded the testimony about his apparent sexual interest in the Gonzalez sisters under section 352 because (1) there was no evidence that he sexually assaulted or attempted to sexually assault them; and (2) there was no evidence that Johnson was sexually assaulted. The argument is not persuasive. In a crowded social setting, defendant was shown to have craned his neck to look down the shirt of a 15-year-old girl, stared obviously and inappropriately at the chest of her 19-year-old sister, and insisted on getting the 19 year olds phone number even though she told him her boyfriend would disapprove. This behavior evinced defendants salacious state of mind shortly before the murder. It was directly relevant to the prosecutions theory that he kidnapped Johnson for a sexual purpose even if his sexual intentions were never carried out.

Nor was this evidence unduly prejudicial within the meaning of section 352. The prejudice which exclusion of evidence under Evidence Code section 352 is designed to avoid is not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence. [A]ll evidence which tends to prove guilt is prejudicial or damaging to the defendants case. The stronger the evidence, the more it is prejudicial. The prejudice referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues. In applying section 352, prejudicial is not synonymous with damaging.   (People v. Karis (1988) 46 Cal.3d 612, 638.) While defendants lewd behavior toward the sisters at the dinner was obnoxious and inappropriate, it was probative of his motive and not particularly prejudicial. The court did not abuse its discretion. (See People v. Tafoya (2007) 42 Cal.4th 147, 174.)

Although his appellate briefs are not clear, it seems defendant also maintains the admission of this testimony was erroneous under section 1101. If so, he is mistaken. Section 1101 prohibits the prosecution using prior acts to show a defendant has a disposition to commit them, and that he acted in conformity with that disposition when he committed the charged crime. (See People v. Rowland, supra, 4 Cal.4th at p. 261.) Here, the evidence was introduced to show defendants aggressively lewd state of mind at dinner, allowing for the permissible inference that he was in this same state of mind when he spotted and abducted Johnson. Section 1101 is therefore inapplicable. There was no evidentiary error.

II.Instructional Error

Althoughdefendant did not request an instruction, he contends the courts failure to give a sua sponte instruction on mistake of fact as to consent requires reversal. We disagree.

A. Legal Principles

The court has a sua sponte duty to instruct on mistake of fact if (1) the defendant relies on the defense; or (2) there is substantial evidence that supports the defense and the defense is not inconsistent with the defendants theory of the case. (People v. Maury (2003) 30 Cal.4th 342, 424; People v. Russell (2006) 144 Cal.App.4th 1415, 142.) Since defendant did not raise a defense at trial premised upon a mistake of fact, and it is not inconsistent with his defense premised upon an accident, the question here is whether the mistake of fact defense is supported by substantial evidence.

To provefirst degree murder on a felony-murder theory, the prosecution must prove the defendant had a specific intent to commit the underlying felony. This is true even where the underlying felony is a general intent crime.^[5] (People v. Jones (2003) 108 Cal.App.4th 455, 467; People v. Jones (2000) 82 Cal.App.4th 663, 667; see People v. Hart (1999) 20 Cal.4th 546, 608.) So, felony murder based on a kidnapping requires a specific intent to kidnap. An honest butunreasonablemistake that the victim consented to the asportation is a defense because it negates that specific intent. (See People v. Tufunga (1999) 21 Cal.4th 935, 945 [unreasonable mistake of fact or law is a defense to theft].) Accordingly, an honest but unreasonable mistake of fact is a defense to felony murder based on kidnapping, but in order to be a defense to the general intent crimes of kidnapping and kidnapping special-circumstance first degree murder, a mistake must be reasonable. (See In re Jennings, supra, 34 Cal.4th at pp. 277-278; People v. Davis, supra, 10 Cal.4th at pp. 518-519.)

Error in failing to instruct on the mistake-of-fact defense is subject to the harmless error test set forth in People v. Watson (1956) 46 Cal.2d 818, 836. (People v. Russell, supra, 144 Cal.App.4th at pp. 1431-1432.) Appellate review under Watson focuses not on what a reasonable jury could do, but what such a jury is likely to have done in the absence of the error under consideration. In making that evaluation, an appellate court may consider, among other things, whether the evidence supporting the existing judgment is so relatively strong, and the evidence supporting a different outcome is so comparatively weak, that there is no reasonable probability the error of which the defendant complains affected the result. [Citation.] There is a reasonable probability of a more favorable result within the meaning of Watson when there exists at least such an equal balance of reasonable probabilities as to leave the court in serious doubt as to whether the error affected the result.   (Id. at p. 1432.)

B. Analysis

Defendant contends there was substantial evidence to show he mistakenly believed Johnson consented to being moved in his truck. Specifically, his testimony stated that he did not knowingly move her against her will. He said he pleaded with Johnson to get in the bed of his truck so he could take her to a hospital and he helped her climb in. Shortly after, she started screaming and either jumped or fell out. Defendant contends this substantial evidence shows he reasonably, if mistakenly, believed that Johnson consented to being taken in his truck and that her screams were an irrational reaction to the pain and trauma of her injuries rather than a withdrawal of consent to the movement.

The substantial evidence necessary to support a jury instruction is  evidence sufficient to deserve consideration by the jury, i.e., evidence from which a jury composed of reasonable [people] could have concluded that the particular facts underlying the instruction did exist.  (People v. Strozier (1993) 20 Cal.App.4th 55, 63; see also People v. Marshall (1997) 15 Cal.4th 1, 39-40; People v. Williams (1992) 4 Cal.4th 354, 361.) In assessing the evidence to determine whether to give an instruction, the trial court should not measure the substantiality of the evidence by weighing the credibility of the witnesses. That duty is within the exclusive province of the jury. However, the court need not give the instruction if the evidence is minimal and insubstantial. [Citation.] Finally, any doubt as to the sufficiency of the evidence to support the instruction should be resolved in favor of the accused. (People v.Russell, supra, 144 Cal.App.4th at p. 1430.) But a jury instruction need not be given whenever any evidence is presented, no matter how weak (Strozier, supra, at p. 63) and our high court has also stressed that  unsupported theories should not be presented to the jury.  (Marshall, supra, at p. 40.)

The People respond that no reasonable juror could have believed defendants testimony or disbelieved the prosecutors dramatically different theory of the crime. Assessing the evidence under the proper standards and resolving any doubt in defendants favor, defendants testimony at least arguably supports his theory that he mistakenly believed Johnson agreed to go with him after he accidentally ran her down. On the other hand, the evidence he contends substantially supports his version of the eventsnotably, his own testimonyskates remarkably close to the minimal and insubstantial line. But we need not categorize on which side of the line it falls. Instructional error, assuming the omission here to be such, does not require reversal if the jury necessarily resolved the factual issue in question against the defendant under other, properly given instructions. (People v. Howard (1992) 1 Cal.4th 1132, 1172.) The jury determined that defendants crimes against Johnson involved great violence, great bodily harm, threat of great bodily harm, and other acts disclosing a high degree of cruelty, viciousness and callousness. It is inconceivable that jurors could have believed that defendant accidentally injured Johnson in a car accident, mistakenly believed she consented to ride in his truck, and was grievously injured when she jumped or fell from the moving truck, and also find beyond a reasonable doubt that defendant acted with a high degree of cruelty, viciousness and callousness. Moreover, the prosecutions case was extraordinarily strong; the defendants case was commensurately weak and riddled with inconsistencies. Assuming a mistake of fact instruction was required, its omission is not reversible error.

III.The Special Circumstances Finding

The jury found true the kidnapping special-circumstance allegation against defendant filed under Penal Code section 190.2, subdivision (a)(17). As a result, defendants penalty is a sentence of death or life imprisonment without the possibility of parole.^[6] Defendant contends Penal Code section 190.2, subdivision (a)(17) is unconstitutionally vague and violates the due process clause because there is no meaningful distinction between first degree felony murder based on kidnapping and the kidnap-murder special circumstance in this case. His contention has no merit.

The defendant in People v. Superior Court (Bradway) (2003) 105 Cal.App.4th 297 (Bradway) similarly challenged the lying-in-wait special-circumstance provision (Pen. Code,  190.2, subd. (a)(15)) as unconstitutionally vague because it was similar to lying-in-wait first degree murder. (Bradway, supra, at pp. 306-311.) The court disagreed. It explained: Generally, there are two separate and distinct legal theories for challenging a statute on vagueness grounds, depending on the interests at stake. [Citation.] A person challenging aggravating circumstance statutes in death penalty cases brings such under the Eighth Amendment, asserting the challenged provision fails adequately to inform juries what they must find to impose the death penalty and as a result leaves them and appellate courts with . . . open-ended discretion . . . . [Citation.] In noncapital cases, the challenge comes under the due process clause and rest[s] on the lack of notice, and hence may be overcome in any specific case where reasonable persons would know that their conduct is at risk.  (Id. at p. 309, italics added.) Thus, when, as here, the defendant no longer faces the death penalty, and no First Amendment rights are implicated, we merely examine the statute as applied to him under the facts of the instant case. (Ibid.)

Penal Code sections 189 and 190.2, subdivision (a)(17) provided defendant with clear constructive notice that the crimes he committed against Michelle Johnson subjected him to a range of severe penalties, including a prison term of 25 years to life, life without the possibility of parole, and death. Prosecutorial discretion to determine which among this range of penalties to seek does not offend due process (see Bradway, supra, 105 Cal.App.4th at p. 310 [prosecutorial discretion to seek death penalty]), and defendant cites no authority for his contention that it does. Moreover, as said in Bradway, it has long been held that first degree murder liability and special circumstance findings may be based upon common elements . . . . There was no due process violation.

Disposition

The judgment is affirmed.

_________________________

Siggins, J.

We concur:

_________________________

Pollak, Acting P. J.

_________________________

Horner, J.^*

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^[1] All further statutory references are to the Evidence Code unless otherwise noted.

^[2] The court readmonished the jury with CALJIC No. 2.50 when Poggendorf testified.

^[3] In addition to Dr. Peterson, forensic dentist James Wood also testified for the prosecution about Johnsons injuries.

^[4] Defendant does not seem to assert this evidence should also have been excluded under section 352. Such an argument would fail in light of the minor nature of the prior assaults when compared to defendants vicious and brutal attack on Johnson.

^[5] A crime is characterized as a general intent crime when the required mental state entails only an intent to do the act that causes the harm; a crime is characterized as a specific intent crime when the required mental state entails an intent to cause the resulting harm. (People v. Davis (1995) 10 Cal.4th 463, 518-519, fn. 15.) In contrast to felony murder based on kidnapping, specific intent to kidnap is not an element of either kidnapping or the kidnapping special circumstance. (Ibid; In re Jennings(2004) 34 Cal.4th 254, 277-278.)

^[6] Penal Code section 190.2 provides in relevant part that: (a) The penalty for a defendant who is found guilty of murder in the first degree is death or imprisonment in the state prison for life without the possibility of parole if one or more of the following special circumstances has been found under Section 190.4 to be true: [] . . . []  (17) The murder was committed while the defendant was engaged in, or was an accomplice in, the commission of . . . . [] . . . [] (B) Kidnapping in violation of Section 207, 209, or 209.5.

^* Judge of the Alameda County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.