P. v. Kinkade
Filed 9/16/10 P. v. Kinkade CA1/4
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opinion has not been certified for publication or ordered published for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
FOUR
THE PEOPLE,
Plaintiff and Respondent,
v.
NATHAN
BRYAN KINKADE,
Defendant and Appellant.
A122244
(Contra
Costa County
Super. Ct. No. 050710673)
After
he pled guilty to having committed robbery
and multiple sexual offenses, a jury convicted appellant Nathan Bryan
Kinkade[1]
of aggravated kidnapping. (Pen. Code,[2]
§§ 209, subd. (b), 211, 212.5, subd. (c), 261, subd. (a)(2), 286, subd.
(c)(2), 288a, subd. (c)(2), 289, subd. (a)(1); former § 664 [as
amended by Stats. 2005, ch. 52, § 1].)[3] Based on these convictions and on certain
weapons and other sentencing findings, he was sentenced to a life term in
prison.[4] (§§ 667.61, subd. (b), 1203, subd.
(e)(1), 12022, subd. (b)(1).) On
appeal, Kinkade persuades us that (1) the trial court committed prejudicial
error by failing to instruct the jury sua sponte on simple kidnapping as a
lesser included offense of aggravated kidnapping. He also contends (2) that he was denied his
constitutional right to represent himself at trial; (3) that insufficient
evidence supports his conviction for aggravated kidnapping and (4) the findings
that he was armed with and personally used a deadly weapon during the
commission of that offense; and (5) that aspects of his original sentence
constituted multiple punishment or lacked statutory authorization. We reduce the aggravated kidnapping
conviction to one for simple kidnapping and remand to the trial court for
resentencing on all counts.
FACTS
A.
The Crimes
On
the afternoon of December 13, 2006,
Jane Doe was walking in a Richmond
park, pushing her six-month-old daughter in a stroller. A tall[5]
young man--later identified as appellant Nathan Bryan Kinkade--approached her and
spoke[6]
with her briefly before continuing on his way.
Five or 10 minutes later, Jane Doe was in an isolated part of the
park. Kinkade approached her from
behind, putting his hand over her mouth and placing a knife to her neck. He instructed her not to scream and pushed
her down, knocking over the stroller and the baby along with it. Kinkade told Jane Doe that he wanted money,
but did not want to hurt her. He wore a
knife sheath on a string around his neck.
Jane
Doe righted the stroller and saw that her daughter was unharmed. She pretended not to understand English very
well in order to confuse Kinkade. She
also tried to convince him that the baby was not hers, but merely a child in
her care. She told him that she did not
have any money. When he asked to go to
the home of her fictitious employer to see if there was anything there that he
could have, she told Kinkade that there were people at the house.
Jane
Doe pushed her child's stroller toward some nearby houses, hoping that she
might be seen and rescued. She told
Kinkade that she was leading him to her house.
There were several paths through the park--she chose not to take the ones
that led to more isolated areas. She
moved as fast as Kinkade would allow her to go--she did not want to make him
angry for fear that he would use the knife.
She wanted to get to a place where people could see them. She talked with him, trying to prolong the
situation and trying to collect information about him. She hoped to get to a place where people
could see them so she and her child would have a better chance of survival.
During
this phase of the incident, Kinkade's knife was in his hand all the time. With him at her side, Jane Doe pushed the
stroller up a path leading to the nearby houses, only to discover that the
homes were enclosed by a metal fence and a locked gate. No one was there. Feeling trapped, Jane Doe began to scream,
hoping someone would hear her. Kinkade
ordered her not to scream and--observing the knife in his hand--she complied.
Kinkade
asked Jane Doe to show him her breast.
Still at the locked gate, she offered him her gold earrings,[7]
hoping this might satisfy him. He took
them, but still wanted to see her breast.[8] Jane Doe wanted to avoid physical contact
with Kinkade, who still held the knife.
She told him that she would do so if he promised to let her and the baby
go. He agreed and she pulled up her
shirt for a second and showed him her breast.
At the time, her daughter was in the stroller between Jane Doe and
Kinkade, who still held the knife.
Kinkade
said that he wanted to see more. She
understood him to want to see the lower part of her body. Several times, Jane Doe reminded him of his
promise to let them go, but he did not react.
She feared that this situation was headed in a dangerous direction, and
particularly feared that her baby might be hurt. Jane Doe told him that she would only show
him more if he threw his knife behind the fence. She wanted to make it difficult for him to
gain access to the knife.
Kinkade
threw the knife over a wooden fence that appeared to be a bit shorter than Jane
Doe was. He reminded her of her promise
and demanded that she show him her bottom.
Jane Doe did not want to expose herself more fully to him--she only
agreed to do so to keep him from injuring or killing herself or her child. She pulled her jeans down to her knees and
turned around when he ordered her to do so.
Jane Doe kept an eye on her baby in the stroller. She pulled her pants up, hoping that this
would be the end of her ordeal.
Jane
Doe told Kinkade that he should keep his promise and let them go. He did not--instead, he indicated that he
wanted her to move behind a tree. Seeing
that this location was more hidden and fearful that she was at risk of sexual
assault, Jane Doe began to cry. She
asked Kinkade why he wanted her to go there and he said that he wanted to have
sex with her. Jane Doe did not want this
to happen.
Jane
Doe said that she did not want to go where Kinkade indicated--she told him that
they should go to another location where they might not be seen. In fact, she hoped to delay or prevent being
sexually attacked. Jane Doe pushed and
pulled the stroller up a hill and started walking along the rim of the hill,
hoping that this would make her more visible from the houses. She could see cars nearby and hoped to reach
them. As the trio went up the hill,
Kinkade kept a constant hold on the stroller.
Kinkade
ordered Jane Doe to stop and go back down the hill. He prevented her from moving the stroller any
further. She told him that if they had
sexual intercourse, it would be without her consent. Kinkade told her that he understood
this. Jane Doe put the brake on the
stroller, left it at the top of the hill and went back down the hill with
Kinkade. This location was hidden from
the view of nearby houses by a solid wood fence.
Jane
Doe went down the hill with Kinkade because she feared for her child's
safety. She feared that he might push
the stroller down the hill into the fence, hurting the baby, if she did not do
so. Jane Doe asked for her earrings
back, so that she might get his fingerprints.
While he raped her twice, forced her to orally copulate him, digitally
penetrated her and twice attempted to sodomize her, Jane Doe watched the
stroller at the top of the hill. At one
point, Kinkade grabbed her head and pulled her to a location on the other side
of a drainage ditch, where more sexual activity occurred. During the assault, Jane Doe removed a
flashlight from Kinkade's jacket, hoping that it would have his fingerprints on
them.
When
the assault was over, Jane Doe put her jeans back on and ran back up the hill
to the baby in her stroller. Kinkade
went along the fence below her, along the flat path, toward the place where he
had left his knife. Jane Doe had difficulty
pushing the stroller with her baby in it through the overgrown brush, so she
picked up the stroller and carried it.
She moved as quickly as she could along the rim of the hill to the
nearby area where cars were parked. She
feared that Kinkade would retrieve his knife and use it to kill her and the
baby, in order to silence them.
Once
Jane Doe got to a more populated area, she called 911 on her cell phone and hid
behind one of the houses for safety. Ten
minutes later, the police arrived and she told them what had happened. Within 30 minutes after the assault ended,
Jane Doe led police to the place where Kinkade had thrown his knife, but it was
not to be found. She gave his flashlight
to police.
Jane
Doe described her assailant to police, who produced a sketch of him. She also drew her own sketch of the
knife. Two days later, a Richmond
police officer who knew that Jane Doe had been sexually assaulted at knifepoint
spotted Kinkade, who resembled the sketched assailant. Kinkade wore a sheathed knife hanging by a
string around his neck.
B.
Pretrial Matters
In
July 2007, an information was filed charging Kinkade with two counts each of
forcible rape, forcible sodomy and forcible sexual penetration. The information also alleged single counts of
forcible oral copulation, second degree robbery and aggravated
kidnapping--specifically, kidnapping for sexual purposes. (§§ 209, subd. (b), 211, 212.5, subd.
(c), 261, subd. (a)(2), 286, subd. (c)(2), 288a, subd. (c)(2), 289, subd.
(a)(1).) The information charged that
Kinkade used a deadly weapon--a knife--during the commission of each of these
offenses. (§§ 667.61, subds. (b),
(e), 12022, subd. (b)(1).) Kinkade pled
not guilty to these charges and denied all enhancement allegations.
In
December 2007, Kinkade moved to dismiss the sodomy, sexual penetration and
kidnapping counts, as well as most of the sentence
enhancements alleged with all but the robbery count. (§ 995.)
The trial court granted the motion to dismiss the sodomy and sexual
penetration charges, but allowed the prosecution to amend the information on
those counts. In March 2008, a first
amended information was filed, charging two counts of attempted forcible sodomy
and a single count of sexual penetration.
In all other significant respects, the amended information was the same
as the original one. (§§ 209, subd.
(b), 211, 212.5, subd. (c), 261, subd. (a)(2), 286, subd. (c)(2), 288a, subd.
(c)(2), 289, subd. (a)(1), 667.61, subds. (b), (e), 12022, subd. (b)(1); former
§ 664.)
Kinkade
withdrew his not guilty plea to all but the kidnapping charge and pled guilty
to the robbery and sex offense counts.
He admitted a deadly weapon use sentencing enhancement allegation on the
robbery charge. He waived a jury trial
on all enhancements related to the sexual offenses. Those enhancements were to be tried by the
court based on the evidence presented to the jury on the remaining aggravated
kidnapping charge. Another allegation
related to the robbery charge was stricken on the People's motion. (See § 667.61, subds. (b)-(c).)
C.
Trial and Sentencing
At
trial, Jane Doe testified about the events of December 13, 2006.
She told the jury that she was terrified and thought only of how to
protect herself and her child from harm.
Kinkade was bigger and younger than she was. He moved more quickly than she could,
especially as she had to move a baby stroller through the vegetation at the top
of the hill. Jane Doe estimated that
about 25 feet lay between the place where she left her child at the top of the
hill and the place at the bottom of the hill where she was assaulted. It may have taken her and Kinkade 10 seconds
to walk down the steeply pitched hill.
She estimated that the place where Kinkade threw his knife was between
40 and 60 meters away from where he assaulted her.
Kinkade
moved for acquittal on the aggravated kidnapping charge and an arming
enhancement, without success.
(§ 1118.1.) He made two
motions, which were also denied. A third
Marsden motion made during closing argument was found to be
untimely, as was Kinkade's request to defend himself. He made outbursts during defense counsel's
closing argument, prompting an unsuccessful motion for mistrial.
The
jury found Kinkade guilty of aggravated kidnapping--kidnapping for sexual
purposes. It found all related deadly
weapon arming and use allegations to be true.
(§§ 209, subd. (b), 667.61, subds. (b), (e), 1203,
subd. (e)(1), 12022, subd. (b)(1).)
The trial court found all deadly weapon use enhancements related to the
robbery and sexual offense counts to be untrue.
Kinkade's
motion for new trial on the ground that there was insufficient evidence of
aggravated kidnapping or deadly weapon arming or use during the commission of
that offense was denied. He was
sentenced to an indeterminate life term for kidnapping. A related deadly weapon enhancement term was
imposed, but stayed. Kinkade was
sentenced to concurrent terms for the robbery and sex offenses.
SELF-REPRESENTATION
A.
Motion in Trial Court
First,
Kinkade contends that he was denied his constitutional right to represent
himself at trial. He seeks reversal of
his kidnapping conviction. (See U.S.
Const., 6th Amend.) This issue arose
late in the trial, during closing argument.
Outside the presence of the jury, Kinkade raised a Marsden issue. The trial
court explained its ruling denying the latest of these motions and suggested
that defense counsel's closing argument was about to begin.
Then,
Kinkade sought to relieve defense counsel.
The trial court pointed out that he had no authority to remove appointed
counsel. When the trial court ordered
the jury brought back into the courtroom, Kinkade protested that his attorney
was not acting in his best interests.
Again, the trial court observed that a hearing on this issue had already
been conducted. Kinkade replied: â€
| Description | After he pled guilty to having committed robbery and multiple sexual offenses, a jury convicted appellant Nathan Bryan Kinkade[1] of aggravated kidnapping. (Pen. Code,[2] §§ 209, subd. (b), 211, 212.5, subd. (c), 261, subd. (a)(2), 286, subd. (c)(2), 288a, subd. (c)(2), 289, subd. (a)(1); former § 664 [as amended by Stats. 2005, ch. 52, § 1].)[3] Based on these convictions and on certain weapons and other sentencing findings, he was sentenced to a life term in prison.[4] (§§ 667.61, subd. (b), 1203, subd. (e)(1), 12022, subd. (b)(1).) On appeal, Kinkade persuades us that (1) the trial court committed prejudicial error by failing to instruct the jury sua sponte on simple kidnapping as a lesser included offense of aggravated kidnapping. He also contends (2) that he was denied his constitutional right to represent himself at trial; (3) that insufficient evidence supports his conviction for aggravated kidnapping and (4) the findings that he was armed with and personally used a deadly weapon during the commission of that offense; and (5) that aspects of his original sentence constituted multiple punishment or lacked statutory authorization. Court reduce the aggravated kidnapping conviction to one for simple kidnapping and remand to the trial court for resentencing on all counts. |
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