Opinion
NOT TO BE PUBLISHED
Superior Court County of Los Angeles No. GA060794, Rafael A. Ongkeko, Judge.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Victoria B. Wilson, Supervising Deputy Attorney General, Ryan M. Smith, Deputy Attorney General, for Plaintiff and Respondent.
Randy S. Kravis, under appointment by the Court of Appeal, for Defendant and Appellant.
COFFEE, J.
Alfonso Averhart appeals from the judgment following his jury trial and conviction of attempted kidnapping and attempted lewd acts on a child under the age of 14. (Pen. Code, §§ 664, 207, subd. (a), 288, subd. (a).) The trial court sentenced him to four years in prison for attempted kidnapping and stayed the three-year sentence for attempted lewd acts upon a child. (§ 654.) Appellant challenges the sufficiency of the evidence to support the attempted kidnapping conviction; argues that there can be no meaningful appellate review in his case because there is no record of the court's oral instructions to the jury; and claims that the court committed multiple instructional errors. Because the trial court failed to instruct sua sponte on the lesser-included offense of false imprisonment (§ 236), we reverse the attempted kidnapping conviction with directions; we otherwise affirm.
All statutory references are to the Penal Code.
FACTS
On March 13, 2005, at approximately 9:00 p.m., Erica Flores drove her two-door Civic toward North El Molino Avenue in Pasadena to the residence of her sister, Florencia Flores. Two-year old Isabelle, Florencia's daughter and Erica's niece, sat behind her, on the left side of the back seat. Erica's four-month-old son sat in his car seat, on the right side of the back seat.
Erica parked on North El Molino and noticed appellant by a tree, about 15 to 20 feet from her Civic. After helping Isabelle get out of the car, Erica walked around the Civic with her, to the curb. Appellant seemed to be talking to himself and he was moving around and doing things with his hands. Erica then realized that the passenger or right side door would not open enough to remove her baby because the Civic was so close to the curb.
Appellant took a couple steps toward them. Erica noticed that he was touching himself and looking at Isabelle. While looking at Isabelle, appellant called her a "cunt" and a "little bitch," said that she had a "tight pussy," and "would be his little pussy," or his "little cunt," and that he had "some good shit." He put his hand in his pants and also touched himself with his hand outside his pants. It looked like he was grabbing and pulling, in an upward motion; his fingers were moving but were not closed. When his hands were inside his pants, he looked at Isabelle and made sexual comments.
Erica went to the driver's side of the Civic to get her baby. She placed Isabelle in front of her, between her legs, as she reached inside to remove her baby and his car seat. Erica felt Isabelle move and felt a tug. She looked and saw that appellant had grabbed Isabelle's right hand or wrist in his right hand. Isabelle was about a foot from where Erica had placed her. Appellant was touching his "privates" roughly, with his left hand, through his clothing, while holding Isabelle's hand with his right hand. He was between the car door and the Civic's left rear tire. Erica "pulled [Isabelle] hard. . . . [And appellant] let go." He did not try to hit Erica or Isabelle. He called Erica "a bitch" and cussed at her as he stood there. When Erica stopped looking at appellant, he walked around her and sat on the Civic's front hood. He continued talking, but Erica did not recall whether he said anything that she could decipher. (Sometimes he spoke and sometimes he "blabber[ed].")
After removing her baby from the Civic, Erica took him and Isabelle into Florencia's secure complex. She noticed that appellant had moved back, toward the tree. Erica told Florencia and her boyfriend, Victor, what appellant had just done to Isabelle, and described appellant. Florencia called the 911 operator. Victor went outside to find appellant. The police received a 911 dispatch message for Florencia's address at 9:12 p.m.
Because Victor saw nobody on El Molino, he kept walking through the neighborhood. He found appellant a couple blocks away, on the corner of Madison and Villa. Nobody else was in the vicinity and appellant appeared to be talking to himself. When a police car approached the area, Victor and a woman in the area directed the police toward appellant. The police arrested him at 9:19 p.m. It would take between two and 10 minutes to walk from Florencia's residence to the location of appellant's arrest.
DISCUSSION
Sufficiency of the Evidence
Appellant argues that there is not sufficient evidence to support his attempted kidnapping conviction. We disagree. When the sufficiency of the evidence is challenged, we consider the evidence in a light most favorable to the judgment and presume the existence of every fact the trier of fact could reasonably deduce from the evidence in support of the judgment. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206; People v. Johnson (1980) 26 Cal.3d 557, 576-578.) On review, we may not substitute our judgment for that of the jury, reweigh the evidence, or reevaluate the credibility of witnesses. (Ochoa, at p. 1206.) "The same standard of review applies to cases in which the prosecution relies mainly on circumstantial evidence [citation] . . . . An appellate court must accept logical inferences that the jury might have drawn from the circumstantial evidence." (People v. Maury (2003) 30 Cal.4th 342, 396.) Reversal is required only when there is no substantial evidence, direct or circumstantial, to support the conviction beyond a reasonable doubt under any hypothesis whatsoever. (People v. Rodriguez (1999) 20 Cal.4th 1, 11; see also Jackson v. Virginia (1979) 443 U.S. 307, 319.)
In order to commit the crime of attempted kidnapping, the defendant must do a direct but ineffectual act towards the commission of a kidnapping, with the specific intent to kidnap. (People v. Cole (1985) 165 Cal.App.3d 41, 47-48.) The kidnapping statute states: "Every person who forcibly, or by any other means of instilling fear, steals or takes, or holds, detains, or arrests any person in this state, and carries the person into another country, state, or county, or into another part of the same county, is guilty of kidnapping." (§ 207, subd. (a).) The attempt statute states in relevant part: "Every person who attempts to commit any crime, but fails, or is prevented or intercepted in its perpetration, shall be punished . . . ." (§ 664.)
Appellant does not argue that he never grabbed Isabelle. Rather, he argues that he lacked the requisite intent to move her a substantial distance to commit an illegal act. "Specific intent may be, and usually must be, inferred from circumstantial evidence. [Citation.] 'When a specific intent is an element of the offense it presents a question of fact which must be proved like any other fact in the case. It is nonetheless a question of fact though it cannot be proved by direct and positive evidence. All the circumstances surrounding the act furnish the evidence from which the presence or absence of the specific intent may be inferred by the jury; and no presumption of law can ever arise that will decide it.'" (People v. Cole, supra, 165 Cal.App.3d 41, 48.)
"'[W]henever the design of a person to commit a crime is clearly shown, slight acts . . . in furtherance of that design . . . constitute an attempt . . . .'" (People v. Memro (1985) 38 Cal.3d 658, 698.) Appellant stresses that the evidence showed only that he moved Isabelle a foot, at most. But "since the crime herein is attempted kidnapping, the distance [Isabelle] was moved is immaterial-asportation simply is not an element of the offense." (People v. Cole, supra, 165 Cal.App.3d 41, 50.) The crime occurred when appellant "was attempting to move her a great distance [for an illegal purpose]." (Ibid.) In People v. Fields (1976) 56 Cal.App.3d 954, the defendant attempted to force a young girl on the street into a car, which attempt was abandoned by the defendant when she screamed. The Fields court "affirmed a conviction of attempted kidnapping even though the victim was never physically moved." (Cole, at p. 50, citing Fields.) Here, appellant abandoned his attempt to move Isabelle a substantial distance when Erica pulled her away.
Appellant also argues that there was no evidence that he attempted to move Isabelle for an illegal purpose. However, before approaching her, appellant had called her a "little cunt," and said she "would be his little pussy," while putting his hand on his genital area, both over his pants and inside his pants, and "grabbing and pulling." This evidence supported the inference that appellant intended to take Isabelle to commit an illegal act. Moreover, he waited until Erica's back was turned before he stopped speaking, approached quietly, and grabbed Isabelle's hand. Erica also felt a tug and noticed that Isabelle had moved about a foot from where she had placed her. She saw appellant holding Isabelle's right hand and he continued holding it until Erica pulled her away. There was substantial evidence by which the jury reasonably concluded that appellant committed the crime of attempted kidnapping.
Jury Instructions
First, we reject appellant's claim that the absence of a reporter's transcript of the oral instructions read to the jury renders his right to appeal meaningless and denies him due process of law. As appellant recognizes, the parties below, including himself, stipulated that the court reporter did not have to transcribe the trial court's reading of the jury instructions. Appellant thereby forfeited this claim on appeal. (People v. Ladd (1982) 129 Cal.App.3d 257, 262-263.) Moreover, nothing in the record suggests that there was any error in the reading of the instructions. (People v. Garrison (1989) 47 Cal.3d 746, 780-781.) Appellant has not met his burden of demonstrating that the "record is not adequate to permit meaningful appellate review." (See People v. Young (2005) 34 Cal.4th 1149, 1170.)
Flight Instruction
Appellant claims that the court committed prejudicial error by instructing the jury with CALCRIM No. 372, which allows the jury to consider a defendant's "flight" following the commission of a crime. We disagree.
As given below, CALCRIM No. 372 states: "If the defendant fled or tried to flee immediately after the crime was committed, that conduct may show that he was aware of his guilt. If you conclude that the defendant fled or tried to flee, it is up to you to decide the meaning and importance of that conduct. However, evidence that the defendant fled or tried to flee cannot prove guilt by itself." Appellant waived any error relating to CALCRIM No. 372 because he did not object to the instruction. Moreover, the court committed no error in giving the instruction.
"[W]hen there is evidence of a defendant's flight, such evidence may be considered in deciding guilt or innocence and [a flight instruction] must be given sua sponte, pursuant to Penal Code section 1127c." (People v. Williams (1997) 55 Cal.App.4th 648, 651; People v. Mendoza (2000) 24 Cal.4th 130, 179.) Appellant claims that there was no evidence of flight in his case because "the prosecution presented no evidence concerning the circumstances surrounding [his] departure from the scene of the alleged crime"; there was "no evidence [he] did anything more than leave the vicinity after his encounter with [Erica and Isabelle]"; and "there is nothing indicating that [he] ran off or exhibited any other behavior suggesting that he was conscious of his own guilt." The record belies his claim. While it is unclear whether appellant ran, walked or jogged from the scene, the evidence that he left within minutes of the crimes is undisputed. Erica drove to North El Molino Avenue around 9:00 p.m., and the crimes occurred as she tried to remove her baby from her car. She rushed into Florencia's residence with her baby and Isabelle immediately after the crimes. As soon as Erica described the crimes, Florencia called the 911 operator and Victor went outside to look for the perpetrator. Finding nobody on El Molino, Victor continued looking and, within minutes, found appellant a couple blocks away. The police received a 911 dispatch call at 9:12 p.m. and arrested appellant seven minutes later, at 9:19 p.m. These facts constitute evidence of flight.
Appellant also contends that CALCRIM No. 372 violated his right to due process because it created a permissive inference that could cause the jury to make an erroneous factual decision. We disagree. The Supreme Court rejected a comparable challenge to a similar flight instruction (CALJIC No. 2.52) in People v. Mendoza, supra, 24 Cal.4th 130, 179, 180-181. Like CALJIC No. 2.52, CALCRIM No. 372 does not direct that a particular inference be drawn and it does not violate due process. Appellant also claims that CALCRIM No. 372 undermined the presumption of innocence. It did not. (See People v. Rios (2007) 151 Cal.App.4th 1154, 1157-1159.)
Further, any error in giving the flight instruction was not prejudicial. First, there was strong evidence independently linking appellant to the crimes. Erica observed appellant from a relatively short distance and heard him make lewd comments to Isabelle while touching his genital area. She then felt Isabelle move, felt a tug, and saw appellant holding Isabelle with his right hand, while using his left hand to roughly touch his genital area, through his pants.
Second, CALCRIM No. 372 instructed the jury that it should decide not only whether appellant had fled ("If you conclude that the defendant fled or tried to flee"), but also "the meaning and importance of that conduct." Moreover, the trial court told the jury that "[s]ome of these instructions may not apply, depending on your findings about the facts of the case. Do not assume just because I give a particular instruction that I am suggesting anything about the facts. After you have decided what the facts are, follow the instructions that do apply to the facts as you find them." (CALCRIM No. 200, in pertinent part.)
In evaluating a flight instruction very similar to CALCRIM No. 372 (CALJIC No. 2.52), our Supreme Court observed, "The cautionary nature of the instruction[] benefits the defense, admonishing the jury to circumspection regarding evidence that might otherwise be considered decisively inculpatory." (People v. Jackson (1996) 13 Cal.4th 1164, 1224.) Any claimed error in giving CALJIC No. 372 was not prejudicial in this case. (See People v. Silva (1988) 45 Cal.3d 604, 628.)
Cautionary Instruction Regarding Appellant's Out-of-Court Statements
Erica testified regarding several out-of-court statements that appellant made before he grabbed Isabelle. Appellant contends that the court committed prejudicial error by failing to give a cautionary instruction such as the following, pursuant to CALCRIM No. 358: "You have heard evidence that the defendant made . . . oral . . . statement[s] [before the trial]. You must decide whether or not the defendant made any [such] statement[s], in whole or in part. If you decide that the defendant made such . . . 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 such . . . statement[s]. [¶] You must consider with caution evidence of a defendant's oral statement unless it was written or otherwise recorded." Appellant contends that the failure to instruct the jury with such a cautionary instruction constitutes prejudicial error. We disagree.
When the evidence warrants, the court must instruct the jury sua sponte to view the evidence of a defendant's oral admission with caution. (People v. Dickey (2005) 35 Cal.4th 884, 905.) This rule applies to statements of intent uttered before or during the commission of the offense. (People v. Carpenter (1997) 15 Cal.4th 312, 392-393, disapproved on other grounds in Verdin v. Superior Court (2008) 43 Cal.4th 1096, 1106-1107.) The purpose of the instruction is to assist the jury in determining whether the statement was in fact made. (Id. at p. 393.) The erroneous failure to give the instruction does not implicate the federal Constitution and requires reversal only if it is prejudicial under the normal standard of review for state law error, i.e., when it is reasonably probable the jury would have reached a result more favorable to the defense if the instruction had been given. (Dickey, at p. 905.)
Respondent does not dispute that a cautionary instruction was required with respect to appellant's statements. The issue is whether the lack of such an instruction was prejudicial. "'[C]ourts examining the prejudice in failing to give the instruction examine the record to see if there was any conflict in the evidence about the exact words used, their meaning, or whether the admissions were repeated accurately.'" (People v. Dickey, supra, 35 Cal.4th 884, 905.) When there is no such conflict in the evidence, but simply a denial by the defendant that he made the statements, the failure to give the cautionary instruction is harmless where the jury has otherwise been instructed on the credibility of witnesses. (Id. at p. 906.)
In this case, the evidence that appellant made lewd statements to Isabelle before grabbing her tended to show that he acted with the intent to kidnap (or falsely imprison) her and commit lewd acts on her. There was no conflict about the actual words used or their meaning; the only issue was whether they were uttered at all. The jury was fully instructed on witness credibility and was well able to assess whether Erica was telling the truth when she testified at trial that appellant made the statements to Isabelle. (CALCRIM Nos. 105 (credibility of witnesses); 226 (credibility of witnesses); 302 (evaluating conflicting evidence); and 318 (prior statements as evidence). There was no evidence contradicting Erica's testimony regarding appellant's statements. In light of the other instructions given to the jury to assist them in evaluating witness credibility, it is not reasonably probable that a cautionary instruction regarding his statements would have changed the result of this case. (People v. Dickey, supra, 35 Cal.4th 884, 905-906.)
Lesser-Included Offense Instruction
Appellant contends that the trial court erred by not instructing the jury sua sponte regarding the lesser-included offense of attempted false imprisonment. (§ 236.) We agree. "California law requires a trial court, sua sponte, to instruct fully on all lesser necessarily included offenses supported by the evidence . . . . [T]his includes the obligation to instruct on every supportable theory of the lesser included offense . . ., not merely the theory or theories which have the strongest evidentiary support, or on which the defendant has openly relied." (People v. Breverman (1998) 19 Cal.4th 142, 148-149.) Respondent concedes that attempted false imprisonment is a lesser-included offense of attempted kidnapping.
The CALCRIM notes do not list false imprisonment, or any offense except attempted kidnapping, as a lesser-included offense of kidnapping a victim incapable of giving consent. (See Judicial Council of Cal., Crim. Jury Instns. (2007-2008) CALCRIM No. 1201, Kidnapping: Child or Person Incapable of Consent (Pen. Code, § 207(a), (e)), Lesser Included Offenses at p. 1068.) The relevant case law indicates that false imprisonment is a lesser-included offense of kidnapping a victim incapable of giving consent. (See, e.g., People v. Oliver (1961) 55 Cal.2d 761, 766, 768 [consent not required to prove kidnapping where victim is young child incapable of giving consent]; Parnell v. Superior Court (1981) 119 Cal.App.3d 392, 402-403, fn. 3; id. at pp. 409-410 [child victim is incapable of consenting to kidnapping or false imprisonment]; People v. Magana (1991) 230 Cal.App.3d 1117, 1121 [false imprisonment is lesser-included offense of kidnapping].)
"'A trial court must instruct the jury sua sponte on an uncharged offense that is lesser than, and included in, a greater offense with which the defendant is charged "only if [citation] 'there is evidence'" [citation], specifically, "substantial evidence" [citation] "'which, if accepted . . ., would absolve [the] defendant from guilt of the greater offense' [citation] but not the lesser" [citation]. [Citations.]' (People v. Waidla (2000) 22 Cal.4th 690, 733 . . . .) '"'Substantial evidence is evidence sufficient to "deserve consideration by the jury," that is, evidence that a reasonable jury could find persuasive.' [Citation.]" [Citation.]' (People v. Cunningham (2001) 25 Cal.4th 926, 1008.) 'In deciding whether evidence is "substantial" in this context, a court determines only its bare legal sufficiency, not its weight. [Citations.]' (People v. Breverman (1998) 19 Cal.4th 142, 177.) 'An appellate court applies the independent or de novo standard of review to the failure by a trial court to instruct on an uncharged offense that was assertedly lesser than, and included, in a charged offense.'" (People v. Hayes (2006) 142 Cal.App.4th 175, 181.)
Respondent argues that no attempted false imprisonment instruction was required in this case because "there was no evidence that attempted false imprisonment and not attempted kidnapping, was committed." In so arguing, respondent stresses that appellant moved Isabelle by physical force without her consent and did not release her until Erica struggled with him.
Lesser-included offense instructions are unnecessary where there is not evidence that the lesser rather than the greater offense was committed. For example, in People v. Ordonez (1991) 226 Cal.App.3d 1207, 1218-1222, the defendant was convicted of several offenses, including kidnapping, where the assailants went to the victim's home, taped his mouth, placed him in the trunk of a car, and took him to another location some distance away. The defendant claimed that the trial court erred by failing to instruct the jury that false imprisonment is a lesser-included offense of kidnapping. The Ordonez court concluded that because the evidence would not support a finding that the defendant committed false imprisonment rather than kidnapping, the lesser-included offense instruction was unnecessary. (Id. at p. 1233.) In appellant's case, however, the evidence of his intent to kidnap Isabelle is far more equivocal than that in Ordonez. Appellant moved Isabelle only one foot. As soon as Erica pulled her back, appellant ceased to hold or move her further. The record would support a finding that he committed false imprisonment rather than kidnapping, and the trial court erred in failing to instruct sua sponte on that lesser-included offense.
The trial court's error "'must . . . be evaluated under the generally applicable California test for harmless error, that set forth in [People v. Watson (1956) 46 Cal.2d 818, 836.]' (People v. Breverman, supra, 19 Cal.4th at p. 176.) [R]eversal is warranted 'only if, "after an examination of the entire cause, including the evidence" [citation], it appears "reasonably probable" the defendant would have obtained a more favorable outcome had the error not occurred [citation].' (Id. at p. 178.) '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.'" (People v. Hayes, supra, 142 Cal.App.4th 175, 182.)
"'"'[I]n some circumstances it is possible to determine that although an instruction on a lesser included offense was erroneously omitted, the factual question posed by the omitted instruction was necessarily resolved adversely to the defendant under other, properly given instructions. In such cases the issue should not be deemed to have been removed from the jury's consideration since it has been resolved in another context, and there can be no prejudice to the defendant since the evidence that would support a finding that only the lesser offense was committed has been rejected by the jury.' [Citations.]" [Citations.]' (People v. Elliot (2005) 37 Cal.4th 453, 475, italics added.)" (People v. Hayes, supra, 142 Cal.App.4th 175, 182.) In this case, however, "the factual question posed by the omitted instruction on the lesser included offense has not been 'resolved in another context' by the jury." (Id. at p. 183.)
Applying the Watson harmless error standard, it is reasonably probable that appellant would have obtained a more favorable outcome if the jury had not been presented with an unwarranted all-or-nothing choice between conviction of the charged offense and complete acquittal. As we have explained, the prosecution evidence, while substantial, was equivocal. It is reasonably probable that the jury would have found that appellant lacked the intent to kidnap Isabelle if it had been given the option of returning a guilty verdict on the lesser-included offense of false imprisonment. Because the trial court failed to instruct sua sponte on the lesser-included offense of false imprisonment, we must reverse the attempted kidnapping conviction with directions; we otherwise affirm the judgment.
"'When a greater offense must be reversed, but a lesser included offense could be affirmed, we give the prosecutor the option of retrying the greater offense, or accepting a reduction to the lesser offense.'" (People v. Hayes, supra, 142 Cal.App.4th 175, 184.) If, after the filing of the remittitur in the trial court, the district attorney does not bring appellant to retrial on the charged offense within the time limit of section 1382, subdivision (a)(2), the trial court shall proceed as if the remittitur constituted a modification of the judgment to reflect a conviction of the lesser-included offense of attempted false imprisonment in violation of sections 236 and 664, and shall resentence appellant. (See § 654, subd. (a); People v. Edwards (1985) 39 Cal.3d 107, 118; Hayes, at p. 184; People v. Woods (1992) 8 Cal.App.4th 1570, 1596; People v. Garcia (1972) 27 Cal.App.3d 639, 648.)
We concur: YEGAN, Acting P.J. PERREN, J.