Opinion
A143132
11-28-2018
THE PEOPLE, Plaintiff and Respondent, v. JIMMIE L. DOSS, JR. Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. 05-110832-3)
Jimmie L. Doss, Jr., was convicted by jury of a string of crimes occurring over a one-month period in 2009 in Richmond, including murder (Pen. Code, § 187), attempted murder (§§ 664, 187), three counts of kidnapping for extortion (one with bodily harm) (§ 209, subd. (a)), and related counts, as well as drug crimes, unlawful possession of a firearm and ammunition, and enhancements based on weapon use, infliction of great bodily injury, and prior convictions, earning him a sentence far beyond what he could serve in his lifetime, including a life term without possibility of parole (LWOP).
Statutory references, unless otherwise indicated, are to the Penal Code.
On appeal, Doss raises numerous issues: (1) his in propria persona status was improperly terminated; (2) the kidnapping for extortion counts must be reversed because the evidence was insufficient to support the element of specific intent to commit extortion; (3) the LWOP sentence cannot stand and the "great bodily injury" finding (§ 12022.7) on count 9 (kidnapping for extortion with bodily harm) must be vacated because the bodily harm was not personally inflicted by Doss; (4) CALCRIM No. 1202, the instruction on "bodily harm" on count 9, was erroneous; (5) the counts for possession of methamphetamine and marijuana for sale were not supported by substantial evidence of intent to sell; (6) the verdict on transportation of drugs must be set aside due to a statutory amendment; (7) his prior conviction under section 246.3 did not qualify as a strike or serious felony prior; and (8) the case must be remanded for resentencing.
The Attorney General disagrees with most of Doss's arguments, but he does agree that one of the strike priors must be set aside because there was insufficient evidence that it qualified as a strike or serious felony and that the case must be remanded for resentencing. We find no error requiring a retrial, but we do vacate one strike finding and a great bodily injury enhancement, and we remand for resentencing.
I. BACKGROUND
A. The murder and attempted murder
On November 10, 2009, Doss was seen having a pleasant conversation with two men seated in a parked car. Then, for no immediately apparent reason, he circled around behind the car and shot both men, killing Clarence Haynes and injuring Dewayne Woolridge. Before the shooting, Doss had emerged from 1003 Roosevelt Avenue. That building was in foreclosure and unoccupied, except that homeless people were seen going "in and out" of it. After the shooting, Doss calmly returned to 1003 Roosevelt Avenue and went inside. The jury convicted him of murder and attempted murder, with an enhancement on each offense for firearm discharge. (§ 12022.53, subd. (d).)
The prosecution presented additional evidence of Doss's motive developed by monitoring Doss's jail cell, and bolstered proof of Doss's involvement in the crime through ballistics evidence. It is unnecessary to summarize that evidence here.
B. The Drug and Ammunition Charges
On November 15, 2009, Doss was stopped while driving for having inoperable license plate lamps. After he gave a false name to the sheriff's deputy who stopped him, Doss was searched and was found to be carrying 6.25 grams of marijuana in 11 small baggies, .74 gram of methamphetamine contained in five separate small baggies, five .40 caliber Smith & Wesson bullets, and more small empty baggies with dollar signs marked on them.
The jury convicted him of possession of marijuana for sale (Health & Saf. Code, § 11359) and possession of methamphetamine for sale (Health & Saf. Code, § 11378), transporting a controlled substance (Health & Saf. Code, § 11379, subd. (a)), unlawful possession of ammunition (former § 12316, subd. (b)(1) [now § 30305, subd. (a)(1)]), and falsely impersonating another (§ 529).
C. The Quiroz Kidnapping
On December 7, 2009, Fernando Quiroz stopped at a gas station on his way home from work and there saw a woman in a white jacket waving to him. After they spoke briefly, Quiroz agreed to go to the woman's apartment with her, evidently anticipating an act of prostitution. They proceeded together in Quiroz's car, with the woman directing him where to go. Near the corner of Roosevelt Avenue and Harbour Way (that is, near 1003 Roosevelt), the woman instructed Quiroz to stop the car.
As Quiroz got out of his car, two Black men approached. One was about six feet tall and the other was four to six inches shorter. The taller man (inferably Doss) took Quiroz by the arm and put something hard up against his back. Quiroz believed it was a gun. The taller man told Quiroz, "[D]on't move."
Doss is six feet two inches tall.
The men took him into an apartment building, up some stairs, and into one of the apartments, where the woman in the white jacket was waiting. The two men then demanded Quiroz's wallet, phone, and keys, which he gave them. He would not give them his personal identification number (PIN) for his automated teller machine (ATM) card until the shorter man grabbed a "lifting weight and tried to smash it on [Quiroz's] head," threatening to kill Quiroz if he did not give up his PIN. Quiroz complied.
The taller man and the woman left, with the man telling Quiroz, "Don't try to do anything because we'll come back and kill you." The shorter man stayed near the door and told Quiroz, "Stay there. Don't move." After 20 or 30 minutes, when the shorter man was not looking, Quiroz attempted to escape through a window. He lost his balance and fell out the second-floor window to the concrete below. He had difficulty standing after the fall and limped to a nearby store, where the owner called the police. It turned out his leg was broken, and he had to wear a cast for two or three months.
After he escaped from his kidnappers, Quiroz discovered his car was gone. Quiroz learned his bank accounts had been accessed for 14 transactions on December 7 and 8, including at Target, where Doss and two female companions (one Black and one White) shopped for electronics, and the Black woman used Quiroz's ATM card to buy two laptops and a PlayStation 3. Quiroz retrieved his car three or four days after his ordeal, after it was found abandoned in San Pablo. There were no keys in the car, but the ignition showed no signs of having been tampered with. Quiroz never got his keys, his phone, or his cards back.
Doss was convicted of kidnapping for extortion with bodily harm (§ 209, subd. (a)), with a personal infliction of great bodily injury finding (§ 12022.7), second-degree robbery (§§ 211, 212.5), false imprisonment by violence (§§ 236, 237, subd. (a)), and making criminal threats (§ 422). The jury found Doss not guilty of carjacking (§ 215, subd. (a)) or attempted carjacking.
D. The Ferreira Kidnapping
On December 9, 2009, at approximately 9:30 p.m., Euler Ferreira, also known as Jorge Gonzalez, was driving to a friend's house in Richmond when three Black men crossed in front of him at a stop sign. Doss was one of the men. Doss pulled out a gun and told Ferreira to stop. The three men got into Ferreira's car with him, with Doss riding in the front passenger seat. Doss directed Ferreira where to drive and told him to stop at an abandoned building. He then ordered Ferreira to get out of the car, and Ferreira complied.
His real name is Euler Borges Ferreira. He is a native of Brazil. When he moved to the United States he began using the name Jorge Gonzalez or Gonzales. We will refer to him as Ferreira.
Doss then led the group up a stairwell and into an apartment, where they took Ferreira's wallet, phone, keys and the clothes he was wearing. They also demanded his ATM PIN. Doss occasionally punched Ferreira "so [he] would be quiet." "Because of fear," Ferreira disclosed his "banking password" to Doss. Doss and one of the other men left, after advising the remaining kidnapper to "occasionally punch" Ferreira.
Doss returned about 40 minutes later, complaining that Ferreira had given him the wrong password. He told Ferreira "if [he] would not provide him with the correct password, he was going to kill" Ferreira. Doss threatened Ferreira with a hammer, saying he would hit Ferreira on the head with it if Ferreira did not give him the correct password. Ferreira had given him the correct PIN, but because of his accent Doss misunderstood him. Ferreira again gave him the correct password, and Doss left again.
Doss returned again around midnight and allowed Ferreira to leave, after returning his keys and empty wallet. Doss told him, "Leave fast and don't come back because otherwise I'm going to kill you." As Ferreira drove away from the area he saw the men getting into a white car. One of them shouted at him, "Do you want to die?"
Three days later, Ferreira saw the same white car, an older model Buick Riviera, parked near the Economy Inn in Richmond. He alerted the police, who discovered the car was registered to Bonnie Hamilton, a guest in room 146 at the Economy Inn. The police also learned Doss had been stopped in the same car on December 5, 2009.
It was further discovered that Ferreira's ATM card and PIN had been used to purchase a two-way radio, a laptop, and a notebook at Walmart. The card had also been used to make a $400 cash withdrawal from Ferreira's account on December 9, 2009, in San Pablo. Surveillance video showed a Black woman making the withdrawal.
The jury found Doss guilty of kidnapping for extortion (§ 209, subd. (a)), second-degree robbery (§§ 211, 212.5), false imprisonment by violence (§§ 236, 237, subd. (a)), and felon in possession of a firearm (§ 12021, subd. (a)(1)), with enhancements for personal firearm use on the first three counts listed (§§ 12022.5, subd. (a)(1), 12022.53, subd. (b)).
E. The Nguyen Kidnapping
On December 10, 2009, Phong Nguyen was driving to a friend's house in Richmond when he saw a White woman next to a Black man who looked like she "need[ed] some help." In fact, Nguyen later told the police that a Black man suddenly jumped in front of his vehicle, "frantically waving his arms in apparent distress and that he motioned toward a White female adult lying across the lap of an unidentified Black male on the steps leading to 1003 Roosevelt Avenue." Nguyen stopped his car and asked the woman if she needed anything. The woman did not respond, but the man who had jumped in front of the car accosted Nguyen with a knife, forcing Nguyen out of his car and into a nearby building.
Nguyen, the two men, and the woman all went into an apartment in the building. The men hit Nguyen, and the man with the knife, who was taller than the other, took Nguyen's wallet. The men took his clothes, wallet, cash, phone, and keys. One of the men asked for Nguyen's PIN and hit him when he refused to provide it. Nguyen later told the police he offered them $200 if they would let him go, but they kicked him in the stomach four or five times. He also told the police they threatened to hit him with a dumbbell if he did not give them the PIN. Nguyen eventually provided a false PIN, after which the woman and the taller man left. Nguyen told the police, as the two left, the taller man said to the shorter man, "If he moves, hit him."
After they left, the shorter man picked up a hammer, and Nguyen fought with him over the hammer until the kidnapper fled. Nguyen broke a window using a dumbbell and called for help, but no one responded, so he left the apartment, went to a nearby liquor store, and called 911. When the police responded, he pointed out apartment G as the place where he had been held. Nguyen never got his keys, cards, or cash back after the kidnapping. Since he had only given a fake PIN, however, no money was taken from his account.
Nguyen later identified Doss from a photographic lineup as the taller man with the knife. At trial, however, Nguyen, a reluctant witness, declined to identify Doss, saying, "by looking at him now, it's not him."
The jury nevertheless found Doss guilty of kidnapping for extortion (§ 209, subd. (a)), assault with a deadly weapon (§ 245, subd. (a)(1)) (alleged to be a strike), second-degree robbery (§§ 211, 212.5), false imprisonment by violence (§§ 236, 237, subd. (a)), and making criminal threats (§ 422). Each of the offenses was enhanced for personal use of a deadly or dangerous weapon under section 12022, subdivision (a)(1).
F. Jane Doe—the Woman in the White Jacket
The woman in the white jacket—who lured Quiroz to apartment G and the fate that awaited him there—was known at trial as Jane Doe, born January 26, 1994. She ran away from foster care and turned to prostitution at a young age. When she was 14 or 15 years old, she met Doss on the street, and he became her pimp. Doe fell in love with him and still loved him at the time of trial.
Doe described in detail a plan Doss had devised to gain access to their victims' bank accounts, which operated much as the encounters described above. Once they had strong-armed their victims into giving up their PINs, Doss and Doe would leave the victims, guarded by one or more of their friends. Doss and Doe would then use the victims' ATM cards to acquire cash or merchandise until the cards were declined. They sometimes used friends to withdraw money or use the cards at stores. Doss would go into the store, but someone else would conduct the transaction. The individuals involved in the scheme were various friends and not always the same friends. Four or five people usually participated. They began taking the victims' clothes, in addition to wallets, keys, and phones, because one of their early victims got away. Doe had participated in this criminal pattern with Doss some five or six times. Doe and Doss used apartment G only for their money-making enterprise. They otherwise stayed together at a hotel called the Economy.
Doe testified she and Doss specifically targeted "people who speak little or no English and like are small, short." It appears they used this method of raising money initially on certain of Doe's clients. Doe would take her "date," whom she found by advertising on the Internet, to the apartment. Shortly, Doss and accomplices would arrive at the apartment and would feign horror and anger at seeing the victim "messing with [his] 14-year-old cousin." The men then would demand money, wallets, phones, keys, and cards from their victims. Presumably the compromising situation, their limited English, and perhaps immigration considerations, tended to dissuade the victims from reporting the crimes. We have already described how Quiroz, Ferreira, and Nguyen became ensnared in Doss and Doe's scheme. It seems Doss and Doe had become bolder and were simply snatching people off the street.
Doe testified that she was charged as a juvenile for her part in the crimes. Doss knew where she was when she was in juvenile hall and sent her letters through intermediaries. Her last contact with Doss was in February 2014, a few months before trial.
G. The Defense
Doss testified in his own defense against his attorney's advice and without his attorney's participation. Doss said he believed Doe was 19 years old because that is what she told him when they first met. He testified that Doe, in an interview with the police, had accused him of murdering a pregnant woman and her boyfriend in March 2010, at a time when Doss was in custody. Doss refused to respond to cross-examination questions, asserting his Fifth Amendment rights in response to almost every question asked, except that he denied being the person who murdered Haynes and attempted to murder Woolridge. Despite his selective assertion of the Fifth Amendment, the prosecutor did not want to strike his testimony, and it was not stricken.
H. The Sentence
Judge Theresa Canepa sentenced Doss in absentia after he refused to attend the hearing. The judge found Doss had "no remorse," "no mitigating qualities whatsoever," and "should never again function as a free man in civilized society." In addition to its other findings, the jury found true three prior convictions allegedly qualifying as strikes and serious felony priors: a burglary in 1996 (§ 459), negligent discharge of a firearm in 1996 (§ 246.3), and robbery in 2008 (§ 211). (§§ 667, 1170.12, 1192.7.) In light of those prior convictions, Judge Canepa sentenced Doss to 75 years to life for the murder of Haynes, with 25 additional years (consecutive) for discharge of a firearm resulting in death (§ 12022.53, subd. (d)); 27 years to life for the attempted murder of Woolridge, plus 25 years consecutive for discharge of a firearm resulting in great bodily injury (§ 12022.53, subd. (d)); LWOP for kidnapping Quiroz for extortion with bodily harm (count 9); 30 years to life (consecutive) for kidnapping Ferreira for extortion (count 14); and 26 years to life (consecutive) for kidnapping Nguyen for extortion (count 18). Without reciting all the details of the sentence, in the aggregate, Doss was sentenced to 14 years determinate, 374 years to life indeterminate, and LWOP, all consecutive to 13 years determinate and 25 years to life on docket No. 5-121454-3, which was an assault and battery case arising from his attacking another inmate while in jail awaiting trial on this case.
Doss was convicted of assault with a deadly weapon and battery on a fellow jail inmate. (§§ 242, 243, subd, (a), 245, subd. (a)(1).) Upon respondent's motion, we have taken judicial notice of the records in Doss's appeals from that case, in docket nos. A137203 and A144344. We have also taken judicial notice of a trial court order in that case revoking Doss's Faretta status after remand from this court in People v. Doss (2014) 230 Cal.App.4th 46, 58-59 (Doss I): Order Denying Self Representation in Contra Costa County Superior Court case No. 5-121454-3, dated January 23, 2015. Though the charges in that case were based on conduct that occurred later in time, the case came to trial and resolution sooner than the consolidated cases now on appeal. It was the in-jail assault case that led to the decision on appeal in Doss I.
II. DISCUSSION
A. Termination of Faretta Status
1. Revocation of Doss's Faretta status in this case
For better or for worse, criminal defendants have a constitutional right to represent themselves at trial. (Faretta v. California (1975) 422 U.S. 806, 817-818.) Without belaboring the history of Doss's periods of legal representation and self-representation in his various cases, the fact is he was self-represented for all the matters at issue in this appeal by order of Judge John T. Laettner on February 10, 2012. On or about May 1, 2012, a representative the Contra Costa County Sheriff's Office orally asked the court to restrict defendant's in propria persona privileges. He presented the court with a binder of documents detailing Doss's disciplinary issues in jail, including 52 incident reports. The motion was followed up with a written motion "to remove defense pro per privileges," filed by the district attorney's office as a "friend of the court" on behalf of the sheriff's office.
The charges discussed in this opinion were initially filed in three separate docket numbers. The events of November 10, 2009, were charged in one information, the events of November 15 were charged in a separate indictment, and the events of December 7 through 10 were charged in a third case. They were eventually all consolidated, and an amended information was filed incorporating all the charges.
On May 18, 2012, Judge Laettner withdrew his earlier order and revoked Doss's Faretta status based on his threatening and violent behavior in jail and because he had abused his in propria persona privileges. Judge Laettner cited several of the jail incidents in revoking Doss's Faretta status, calling it "imprudent" that he had ever granted Doss in propria persona status in the first place. In revoking Doss's status, however, the judge relied on erroneous legal authority, namely Wilson v. Superior Court (1978) 21 Cal.3d 816, which discusses the due process constraints on termination of in propria persona jail privileges, not in propria persona status. (Id. at pp. 820, 824-826.) Because of that mistaken reliance, we are now faced with a demand that the judgment be reversed, and the case be remanded for a new trial with Doss acting as his own counsel.
As we read the record, the sheriff's office moved only to revoke Doss's in propria persona privileges in jail, not his self-representation. It appears to us the judge revoked Doss's Faretta status on his own motion. (See People v. Carson (2005) 35 Cal.4th 1, 11, fn. 1 (Carson).)
2. Doss I
In his separate in-jail assault case (docket No. 5-121454-3), the same judge, Judge Laettner, also revoked Doss's in propria persona status in the same time period (May 12, 2012) using the same faulty analysis. (Doss I, supra, 230 Cal.App.4th at pp. 54-58.) A panel of this division reviewed that issue on appeal from Doss's assault and battery convictions, holding the trial court erred by applying the standard in Wilson, supra, 21 Cal.3d 816. The standard set forth in Carson, supra, 35 Cal.4th 1 was the correct standard. (Doss I, at pp. 56-57.) Carson acknowledged "the trial judge may terminate self-representation by a defendant who deliberately engages in serious and obstructionist misconduct . . .[,] which by its very nature compromises the factfinding process and constitutes a quintessential subversion of the core concept of a trial." (Carson, at pp. 8-9.) The Supreme Court held even conduct outside the courtroom could justify revocation of a defendant's Faretta status if that conduct "seriously threatens the core integrity of the trial." (Carson, at p. 6; id. at p. 7 ["trial courts should be given sufficient discretion when confronted with behavior—whether occurring in court or out of court—that threatens to compromise the court's ability to conduct a fair trial"].) The trial court is to make that determination based on the "totality of the circumstances." (Id. at p. 12.)
The appellate panel hearing Doss I conditionally reversed and remanded the case so the trial court could determine, using the correct standard, whether Doss should be allowed to represent himself at a new trial. (Doss I, supra, 230 Cal.App.4th at pp. 57-58.) If the court, applying the correct standard, still believed Doss's in propria persona status should be revoked, it was ordered to reinstate the judgment. (Id. at p. 59.) If it determined Doss's in propria persona status should not be revoked, a new trial would be in order. (Ibid.) When the case was returned to the trial court on remand, Judge Laettner, on January 23, 2015, heard additional evidence and again revoked Doss's in propria persona status in a written order based both on Doss's in-court and out-of-court behavior, and the judgment was reinstated. We have taken judicial notice of the written order. (See fn. 5, ante.)
We affirmed the reinstated judgment on appeal in docket No. A144344 against a renewed Faretta challenge. We held that Judge Laettner did not abuse his discretion in deciding Doss's conduct " ' "seriously threatened the core integrity of the trial." ' " (People v. Doss (Dec. 18, 2017 A144344) [nonpub. opn.].) Doss filed a petition for review in the Supreme Court, which was denied on March 28, 2018.
3. Doss's argument in this appeal
Doss acknowledges that Faretta rights may be revoked for conduct not occurring in the courtroom. (Carson, supra, 35 Cal.4th at pp. 8-9.) He contends, however, the trial court, before terminating a defendant's in propria persona status, must consider the existence of alternatives, the ineffectiveness of prior warnings, and the intentions of the defendant. (Id. at p. 10.) In his order on remand, Judge Laettner did that.
But Doss downplays his out-of-court conduct and argues, mostly by implication, that his misconduct in jail did not threaten the core integrity of the trial. Judge Laettner recited Doss's numerous disciplinary problems, including threatening the life of his legal runner and the man's mother; assaulting another inmate (for which he was convicted); threatening to kill a sheriff's deputy if he testified against Doss; repeatedly engaging in demeaning, obscene, and threatening behavior toward jail staff; and threatening Doe. In Judge Laettner's order revoking Faretta status on remand, the court said: "The threat to a witness was to a witness in the defendant's homicide case, which he made while in his pro. per. status. The witness, Doe, ultimately testified against him at that trial. The Court received evidence at the time of the motion in May of 2012 that the witness had to be re-located out of state because of threats by defendant Doss." Doss also violated the terms of a no-contact order by communicating with Doe and using his telephone privileges to handle "street business." If threatening a material witness in his case does not "threaten the core integrity of the trial," then we are hard-pressed to say what would constitute out-of-court misconduct warranting termination of Faretta rights. (See Carson, supra, 35 Cal.4th at p. 9 [witness intimidation is "[o]ne form of serious and obstructionist misconduct" that may justify revocation].)
Yet, Doss emphasizes repeatedly that his in-court behavior was, with only one exception (he says), appropriate and respectful, as if this had some special significance in the face of his extreme out-of-court misconduct. Despite Doss's characterization, Judge Laettner, on remand in the assault case, listed numerous in-court instances of misconduct by Doss that contributed to his decision to once again terminate Doss's in propria persona status. For instance, Doss called several judges "racist"; threatened one judge, "I'll deal with you when I get out," causing the judge to recuse himself; engaged in caustic and disrespectful exchanges with the court, including calling Judge Canepa a "bitch"; "mad-dogged" the prosecutor; engaged in outbursts before the jury that required the courtroom to be cleared and Doss removed; refused to show up for hearings; threatened two of his own attorneys with physical violence; and threatened court staff. His left hand was shackled beginning mid-trial at his attorney's request due to threatening behavior by Doss, which also necessitated Doss's removal from the courtroom. "The right of self-representation is not a license to abuse the dignity of the courtroom." (Faretta, supra, 422 U.S. at p. 834, fn. 46.) Doss's behavior did just that on more than one occasion.
Doss claims the formulation in Carson, supra, 35 Cal.4th 1—whether the defendant's conduct " 'seriously threaten[s] the core integrity of the trial' "—establishes merely a threshold which must be met before a trial court may even consider revoking a defendant's right to represent himself. To actually justify termination of Faretta rights, Doss would have us adopt a more rigorous overlay: "whether the defendant's conduct 'threaten[s] the core integrity of the trial,' such that 'the trial cannot move forward' with the pro se defendant 'in the courtroom,' " quoting Illinois v. Allen (1970) 397 U.S. 337, 343 [in the context of when a misbehaving defendant represented by counsel may be removed from the courtroom] and United States v. Brock (7th Cir. 1998) 159 F.3d 1077, 1079. We need not take a position on this legal theory, nor need we address in any further depth Doss's arguments on the Faretta issue, because the issue of self-representation has already been finally determined for purposes of Doss's trial in this case.
4. Collateral estoppel—or issue preclusion—bars relitigation of the Faretta issue
Doss in the current appeal argues we must reverse the judgment and grant him a new trial. The Attorney General admits the court erred by applying Wilson but argues that remanding the case to superior court would be futile in light of Doss I and its subsequent history. Developments after the close of briefing convince us, too, that reversal is unnecessary, despite the trial court's error, which is normally reversible per se. (McKaskle v. Wiggins (1984) 465 U.S. 168, 177, fn. 8; People v. Joseph (1983) 34 Cal.3d 936, 946-948; Doss I, supra, 230 Cal.App.4th at p. 57.) At this point, we reject Doss's Faretta claim as barred by collateral estoppel, or issue preclusion.
The Supreme Court prefers the nomenclature "claim preclusion" and "issue preclusion" in place of the more archaic "res judicata" and "collateral estoppel." (Samara v. Matar (2018) 5 Cal.5th 322, 326 (Samara).)
As the United States Supreme Court has stated, "the rule of collateral estoppel in criminal cases is not to be applied with the hypertechnical and archaic approach of a nineteenth century pleading book, but with realism and rationality." (Ashe v. Swenson (1970) 397 U.S. 436, 444; accord, People v. Barragan (2004) 32 Cal.4th 236, 256 (Barragan).) Applying it in just such a realistic way, we hold Doss is not entitled to reversal of his judgment, despite the trial court's error in applying the standard in Wilson, supra, 21 Cal.3d 816.
Collateral estoppel—or issue preclusion—"applies only '(1) after final adjudication (2) of an identical issue (3) actually litigated and necessarily decided in the first suit and (4) asserted against one who was a party in the first suit or one in privity with that party.' " (Samara, supra, 5 Cal.5th at pp. 326-327.) The cases add a final requirement that application of the principle must be fair in the circumstances. (Lucido v. Superior Court (1990) 51 Cal.3d 335, 342-343; Barragan, supra, 32 Cal.4th at p. 256.)
The test is formulated in slightly different ways in different cases, but all the elements identified in the cases are met here. The prior ruling in superior court docket No. 5-121454-3 is now final within the meaning of the first requirement in Samara, supra, 5 Cal.5th 322. It became final after our affirmance in docket No. A144344, with review denied in the Supreme Court and after the time for filing a petition for writ of certiorari passed. (People v. Buycks (2018) 5 Cal.5th 857, 876, fn. 5.)
Other cases have identified five requirements: "First, the issue sought to be precluded from relitigation must be identical to that decided in a former proceeding. Second, this issue must have been actually litigated in the former proceeding. Third, it must have been necessarily decided in the former proceeding. Fourth, the decision in the former proceeding must be final and on the merits. Finally, the party against whom preclusion is sought must be the same as, or in privity with, the party to the former proceeding. [Citations.]" (Lucido v. Superior Court, supra, 51 Cal.3d at p. 341.) Others have identified only three requirements. (Barragan, supra, 32 Cal.4th at p. 253 [" 'The prerequisite elements for applying the doctrine to either an entire cause of action or one or more issues are the same: (1) A claim or issue raised in the present action is identical to a claim or issue litigated in a prior proceeding; (2) the prior proceeding resulted in a final judgment on the merits; and (3) the party against whom the doctrine is being asserted was a party or in privity with a party to the prior proceeding. [Citations.]' "].)
Whether Doss should be allowed to continue representing himself in his trial—and specifically whether his conduct threatened the core integrity of the trial—was the identical issue in both cases, and Judge Laettner considered Doss's conduct in both cases when ruling on the Faretta issue on remand. He evidently considered Doss's conduct warranted revoking his Faretta status in both cases. Hence, Doss's conduct in the murder/kidnapping trial had already been taken into account in Judge Laettner's ruling. Doss has not suggested this was an erroneous approach. Moreover, at oral argument Doss's counsel conceded that all the elements of issue preclusion were present in this case. After oral argument, we gave the parties an opportunity to brief the collateral estoppel issue, since they had not briefed this issue initially. We have reviewed the parties' supplemental briefing, but it does not change our opinion.
The Faretta issue was actually litigated—and in fact litigated twice—in superior court docket No. 5-121454-3. The requirement that the issue was "necessarily decided" requires "only that the issue not have been 'entirely unnecessary' to the judgment in the initial proceeding." (People v. Lucido, supra, 51 Cal.3d at p. 342; accord, Samara, supra, 5 Cal.5th at p. 327.) Far from being " 'entirely unnecessary,' " the finding of a threat to the core integrity of the trial was central to Judge Laettner's ruling on remand.
The fourth requirement in Samara, supra, 5 Cal.5th 322 is satisfied by the fact that Doss was a party in superior court docket No. 5-124554-3. In line with those cases specifying the prior determination must be "on the merits" (see fn. 9, ante), this case qualifies as well. A ruling on a Faretta motion is more than procedural in nature. It adjudicates the scope of a defendant's constitutional rights. We deem it to have been a ruling "on the merits" of Doss's waiver by conduct of his Sixth Amendment right to represent himself.
And finally, examining the fairness of applying the doctrine, we conclude it would be entirely fair and just to hold Doss—who had a full opportunity to litigate his constitutional right to self-representation in his assault case—bound by the January 23, 2015 ruling in superior court docket No. 5-121454-3, affirmed in docket No. A144344. Doss is bound by Judge Laettner's ruling on remand and barred from relitigating the issue here.
B. Specific Intent to Commit Extortion on the Three Kidnapping Counts
1. Background
Doss argues there was insufficient evidence that the purpose of the kidnappings was to commit extortion, as alleged in the amended information. His jury was instructed in part with a modified version of CALCRIM No. 1202: "Someone intends to commit extortion if he or she intends to: (1) obtain a person's property with the person's consent and (2) obtain the person's consent through the use of force or fear. [¶] To constitute extortion, the victim must consent, albeit it is a coerced and unwilling consent, to surrender of his property and wrongful use of force or fear must be the operating or controlling cause compelling victim's consent to surrender the property sought. A victim can give consent even if he may still protest against the circumstances requiring him to dispose of the property." The jury was also instructed on robbery and on simple kidnapping, but not on kidnapping for robbery. The jury was also given the following specially drafted, defense-requested instruction on the difference between robbery and extortion, seemingly based on People v. Torres (1995) 33 Cal.App.4th 37, 52, fn. 7 (Torres): "The distinction between robbery and extortion is that a person commits robbery when he threatens immediate harm to the victim, whereas he commits extortion when he threatens future harm to the victim." Doss does not claim the instructions were inaccurate insofar as they described the difference between robbery and extortion, and he does not claim they erroneously defined kidnapping for extortion, except the part relating to "bodily harm."
2. Summary of Doss's argument on specific intent to commit extortion
The prosecution's theory was that, when Doss demanded his victims turn over their wallets, keys, phones, and cards, he was guilty of robbery. When he threatened them with harm if they did not reveal their PINs, he was guilty of extortion. Doss tries to poke holes in that theory by questioning whether the manner in which Doss and his accomplices acquired their victims' PINs qualified as extortion, or whether it was simply another instance of robbery. Doss acknowledges he could lawfully have been convicted of aggravated kidnapping under section 209, subdivision (a), but he was not lawfully subject to an LWOP sentence. He challenges his kidnapping for extortion conviction and the "with bodily harm" finding because (1) he did not threaten his victims with future harm; (2) his victims did not consent to giving up their PINs; and (3) he did not personally inflict bodily harm on Quiroz. He asks us to reverse his three kidnapping convictions on the basis that the prosecution presented insufficient evidence to support the charged offense: kidnapping for extortion. We understand Doss's briefing as requesting us to reduce his kidnapping for extortion conviction to some undifferentiated form of aggravated kidnapping and to vacate his LWOP sentence and replace it with a sentence of life with the possibility of parole. He effectively asks us to modify his conviction to one under section 209, subdivision (b). This we cannot do.
Doss admits the elements of aggravated kidnapping under section 209, subdivision (a) were met. It is not clear, however, what this concession means. Because section 209, subdivision (a) "is phrased in the disjunctive, it describes four different types of aggravated kidnapping: (1) for ransom; (2) for reward; (3) to commit extortion; or (4) to exact from another person any money or valuable thing." (People v. Ibrahim (1993) 19 Cal.App.4th 1692, 1696.) We do not believe Doss intended to admit his purpose was ransom or reward or to exact money from another person. To the extent he admits he was guilty of kidnapping for robbery, his crime would be punishable under section 209, subdivision (b), not subdivision (a).
We will address the bodily harm issue in parts II.C. and D., post.
Doss claims kidnapping for extortion is so close to kidnapping for robbery that it is tricky to distinguish them, and the evidence did not establish extortion as the motive for the kidnapping. The difference between the two crimes is important because an LWOP sentence is available for a kidnapping whose purpose is extortion, whereas a kidnapping for robbery is punishable only by a life sentence with the possibility of parole. (Compare § 209, subd. (a) with § 209, subd. (b).) Doss therefore explores the similarities and differences between robbery and extortion, theorizing the elements of extortion were not made out by the prosecution here because (1) there was no threat of future harm if the victims failed to tell Doss their PINs and (2) Doss's victims did not part with their PINs willingly, but only out of fear.
3. Summary of our response
We agree with Doss's argument to this extent: at the moment it is uttered, a threat to harm another immediately if a demand for property is not met may not be easily categorized as robbery or extortion. It may be identified, however, by looking not only at the perpetrator's words, but also at all the surrounding circumstances, including what the perpetrator did after making the threat. And the question of his or her intent is for the jury, not an appellate court.
Here, the surrounding evidence shows Doss's intent in threatening his victims was not solely to obtain their PINs, which could only be achieved by coercing the victims to utter the numbers, but also to acquire tangible property thereafter by using the PIN. That future intent, as part of a plan in which Doss's accomplices held the victims captive while Doss attempted to realize those further objectives, convinces us that substantial evidence supports Doss's kidnapping for extortion conviction.
Nor is the fact that the victims in this case divulged their PINs only under duress an impediment to Doss's convictions of kidnapping for extortion. It is in the nature of extortion that consent is induced by force or fear. (§ 518; People v. Kozlowski (2002) 96 Cal.App.4th 853, 865-869 (Kozlowski) [kidnapping for extortion convictions upheld where defendants forced victims at gun- and knife-point to divulge PINs].)
And finally, the nature of the property extorted (PINs) further reassures us the jury's verdict should be affirmed.
4. By continuing to detain his victims after obtaining their PINs, Doss conveyed a threat of future harm
Doss's criminal conduct did not stop with taking his victims' PINs. He took their ATM cards, traveled to distant locations, withdrew cash from their accounts, and purchased merchandise using their cards. This additional behavior takes the crime out of the definition of robbery and makes it look more like extortion. Although the crime of extortion may have been complete when the victims disclosed their PINs, it became recognizable as extortion more and more clearly as Doss and his collaborators finished carrying out their plan. Because the evidence shows Doss entertained a further unlawful objective to be realized in the future, and because they acquired cash and other property using their victims' ATM cards in a manner that the property was not taken from the immediate presence of the victims, it helps to reinforce our conviction that the jury reasonably concluded the crime committed was extortion and not simply robbery.
If a kidnapper were to release the victim immediately after learning his or her PIN, there might be some merit in Doss's argument that robbery was shown, but not extortion (although there would still remain the question whether a PIN is "personal property" for purposes of robbery). But here, as in Kozlowski, supra, 96 Cal.App.4th 853, the kidnappers continued to hold their victims captive while they attempted to achieve some further illegal objective. Doss took the opportunity to test the accuracy of the information provided—and to obtain money and property from the victims' accounts—before he released them. The threat of immediate harm for refusing to reveal the PIN was followed by a period of continued detention which served as a threat of future harm if the PIN provided turned out to be incorrect or if the victim failed to cooperate with the kidnappers. In Quiroz's case, the threat was express: "Don't try to do anything because we'll come back and kill you." But a threat underlying a conviction for extortion need not be express. Rather, "[t]he threat may be implied from all of the circumstances." (People v. Bollaert (2016) 248 Cal.App.4th 699, 725.) In all three kidnappings, there was an implied threat of future harm based on the continued detention of the victims while Doss attempted to use their ATM cards.
Robbery is defined as "the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear." (§ 211.) "The words 'personal property' include money, goods, chattels, things in action, and evidences of debt." (§ 7, subd. (12).) Although we held that phrase encompassed a PIN for purposes of kidnapping for extortion, where the concept of property is to be interpreted broadly (Kozlowski, supra, 96 Cal.App.4th at pp. 865-866), Doss has cited no case holding a PIN is personal property for purposes of the robbery statute. (But see People v. Romanowski (2017) 2 Cal.5th 903, 912, 917 [access card information is property for purposes of theft].)
To argue the immediacy of the threat made his crime kidnapping for robbery and not extortion, Doss relies on Torres, supra, 33 Cal.App.4th at pages 49-53, where the appellate court affirmed a conviction of murder with the special circumstance of robbery. The defendant claimed the special circumstance finding should be set aside because he had committed only attempted extortion, not robbery. The defendant in Torres was a gang member who collected "rent" for his gang from local drug dealers by threatening to use physical violence if the "rent" were not paid. In one instance, he demanded "rent" money "or I'll put your brains out," and when the victim did not comply, Torres immediately shot him in the head. (Id. at pp. 42, 50-52.) The jury, instructed on both robbery and extortion, found defendant committed robbery as a special circumstance of the murder. (Id. at p. 42.)
In Torres, 33 Cal.App.4th 37. it was in defendant's interest to claim his crime was extortion and not robbery because a murder committed during a robbery qualifies for the death penalty, whereas a murder committed in the commission of extortion does not. (§ 190.2, subd. (a)(17)(A).) In Doss's case, it works to his advantage to argue he was guilty of kidnapping for robbery rather than kidnapping for extortion, for the latter carries a stiffer penalty than the former if bodily harm ensues.
The court in Torres discussed the similarities and differences between robbery and extortion in deciding whether the defense attorney's clear error in failing to object to improper questioning was prejudicial under Strickland v. Washington (1984) 466 U.S. 668. (Torres, supra, 33 Cal.App.4th at pp. 43-49.) Torres rejected the defendant's argument that his crime was extortion and not robbery because one element of extortion—the element of consent—was "negated" by the evidence. (Id. at pp. 49-52.) Torres did not hold the evidence was insufficient to support extortion due to the lack of a future threat, though it did cite a law review article in a footnote observing that a traditional distinction between robbery and extortion turned on the immediacy of the threat. (Id. at p. 52, fn. 7.) Significantly, section 518, which defines extortion, does not contain a temporal element, instead defining the crime as "a wrongful use of force or fear" to obtain another's consent to surrender to the wrongdoer their "property or other consideration."
As reflected in the statutory phrase "property or other consideration," the concept of property subject to extortion is broader than "personal property" subject to robbery. (§ 211; see People v. Cadman (1881) 57 Cal. 562, 564 [right to take and prosecute appeal is assumed to be property within the meaning of the extortion statute]; People v. Fisher (2013) 216 Cal.App.4th 212, 216-219 [extortion conviction upheld where would-be employee threatened to commit vandalism against an employer's property if not given a job]; Kozlowski, supra, 96 Cal.App.4th at pp. 865-869 [PINs are property for purposes of extortion]; People v. Baker (1978) 88 Cal.App.3d 115, 119 [right to file an administrative protest with the Alcoholic Beverage Control Board is property for purposes of extortion].)
In Torres, supra, 33 Cal.App.4th 37, the immediacy of the threat became apparent from the defendant's subsequent action. Had he walked away and come back an hour later asking the victim for a payoff, the evidence would have presented a closer question. In the present case, unlike in Torres, Doss and his accomplices' subsequent action showed the threat was not over immediately. The victims were not released after giving up their PINs. Doss and his accomplices held them captive while Doss determined how much value he could extract from the cards. We are convinced the threats made by Doss and his companions constituted continuing threats to injure or kill the victims if the PIN proved to be false. In that sense, the kidnappers threatened future harm to induce the victims to part with their property consensually, but under duress. Only one of the kidnap victims in some sense withheld consent, namely Nguyen, who gave Doss a bogus PIN. Once Doss left, it must have become apparent to Nguyen he was under a continuing threat of future harm, so he fought with Doss's accomplice over a hammer to make his safe escape. Without taking a position on whether a threat of future harm is always required for a conviction of kidnapping to commit extortion, as Doss argues, we conclude there was such an implied threat in each of the three kidnappings before us.
5. The concept of "unwilling consent" is inherent in the law of extortion
As we read Doss's argument, he posits that "consensually under duress" is an oxymoron. Doss argues that if one parts with something of value out of fear from force or threats of force, it cannot reasonably be deemed to be given by consent. There is something to be said for this argument, but the law nevertheless treats the victim's compliance as consent, especially when the property the wrongdoer seeks is not tangible property subject to forcible dispossession. (See People v. Cadman, supra, 57 Cal. at p. 564; People v. Fisher, supra, 216 Cal.App.4th at pp. 216-219; Kozlowski, supra, 96 Cal.App.4th at pp. 865-869; People v. Baker, supra, 88 Cal.App.3d at p. 119.) We call it consent in this case because in a very literal sense the victims voluntarily allowed the PINs to cross their lips—which was forced consent—under circumstances where the kidnappers could not have learned the information they sought without the victims' "cooperation." But because the consent was induced by threats, it was not freely given. This is consistent with cases holding extortion is accomplished by securing through force or fear the victim's consent—albeit an "unwilling consent"—to part with his or her property. (People v. Goodman (1958) 159 Cal.App.2d 54, 61.)
Indeed, it might accurately be said that all victims of extortion universally consent under duress. It is in the nature and definition of the offense: "Extortion is the obtaining of property or other consideration from another, with his or her consent, or the obtaining of an official act of a public officer, induced by a wrongful use of force or fear, or under color of official right." (§ 518, subd. (a).) But in this context the law treats the relinquishment of the property as consensual, even though induced by force or fear, in part to distinguish it from robbery, where property is more often literally ripped from the possessor's hands. "[I]t is the fact that the property taken must be with the consent of the person from whom it is obtained that distinguishes the crime of extortion from that of robbery," and a coerced consent is sufficient, notwithstanding that the victim may "protest in his own heart against his money being taken for that purpose." (People v. Peck (1919) 43 Cal.App. 638, 645.) We ordinarily leave to a properly instructed jury the task of distinguishing robbery from extortion. (Ibid.)
This "unwilling consent" paradox—and the difficulty of distinguishing robbery from extortion—has caught the attention of the courts and commentators but has bothered them primarily because of the disparity in punishment when a kidnapping is involved. (See Torres, supra, 33 Cal.App.4th at p. 50, fn. 6.) The court in People v. Ibrahim, supra, 19 Cal.App.4th at page 1698, declared itself "disturbed" by the fact that "the distinction between kidnapping for extortion and kidnapping for robbery can be subtle [citation], yet the difference in penalty is substantial where the result is death/life without possibility of parole for the former (Pen. Code, § 209, subd. (a)), but life with possibility of parole for the latter (Pen. Code, § 209, subd. (b))." Ibrahim then explicitly invited legislative intervention to change the penalty scheme, but the Legislature never acted. And despite its misgivings about the penalty structure, Ibrahim affirmed the defendant's conviction of kidnapping for extortion. (People v. Ibrahim, at pp. 1696-1698.)
6. That intangible property was demanded also substantiates the conviction of extortion
Although the robbery/extortion issue was not argued, a situation similar to this one was involved in Kozlowski, supra, 96 Cal.App.4th 853, in which a panel of this division defined the issue before it as "whether the obtaining of a PIN code under duress can ever constitute extortion." (Id. at p. 864, fn. 12.) Kozlowski held that two men who extracted PINs from two women while holding them hostage in a moving car were guilty of kidnapping for extortion. The method by which the PINs were obtained was similar to how they were obtained by Doss in the three kidnappings here at issue. "Kozlowski asked for [victim]'s PIN code. She did not want to reveal this, but she was in a dangerous position, so she did." (Id. at p. 858.) The panel in Kozlowski described the other woman's relinquishment of her PIN: "When asked for her PIN, she revealed it because one man held a gun and the other had a knife." (Ibid.) Kozlowski upheld the men's convictions for kidnapping for extortion against a sufficiency of the evidence challenge. (Id. at pp. 869-871.)
True, Doss's challenge is somewhat different from Kozlowski's, but we think the outcome of Kozlowski was correct, as well as its holding. Kozlowski claimed a PIN was not property that was capable of being extorted. (Kozlowski, supra, 96 Cal.App.4th at pp. 864-869.) The panel hearing Kozlowski rejected that argument. (Id. at p. 869.) Doss claims, in a slightly modified challenge, that a threat of immediate harm if one does not turn over his or her PIN is robbery, not extortion. He reasons that a PIN is personal property (but see fn. 12, ante), that robbery involves force or an immediate threat of force resulting in the victim's relinquishment of property, that there is no such thing as "unwilling consent," and that extortion involves a threat of future harm rather than immediate harm. (Torres, supra, 33 Cal.App.4th at p. 52, fn. 7; J. Lindgren, Unraveling the Paradox of Blackmail (1984) 84 Colum. L.Rev. 670, 673, fn. 15.) He argues he may have been guilty of robbery—and kidnapping for robbery—but he was not guilty of kidnapping for extortion.
We recently had occasion to discuss the concept of property that may be stolen in the context of deciding whether a person's labor may be considered "property" in the context of his seeking treble damages from an employer under section 496, subdivision (c). (Lacagnina v. Comprehend Systems, Inc. (2018) 25 Cal.App.5th 955, 968.) We decided it was not "property" within the meaning of that section. (Id. at p. 969.)
The evidence as a whole—including Doe's testimony about her shared intent with Doss to keep their victims captive while they used the ATM cards to acquire cash and merchandise—supported the jury's guilty verdicts on counts 9, 14, and 18. It is significant that the end objective of the scheme was not just to obtain the PINs but to hold the victims hostage while Doss and Doe looted the victims' bank accounts. This plan and the manner of its execution fully justified three kidnapping for extortion convictions. The jury could reasonably conclude the victims remained under threat of future physical harm or death throughout the period of their captivity.
C. The Meaning of "Suffers . . . Bodily Harm" in section 209 , subdivision (a)
Appellant's opening brief elucidates the history of section 209, subdivision (a) and the availability of a sentence of LWOP only where the victim "suffers death or bodily harm," whereas a kidnapping to commit extortion without such bodily harm is punishable by life in prison with the possibility of parole. (§ 209, subd. (a).) Doss concedes he could have been lawfully sentenced to life in prison with the possibility of parole, but not without the possibility of parole.
Section 209, subdivision (a) reads: "Any person who seizes, confines, inveigles, entices, decoys, abducts, conceals, kidnaps or carries away another person by any means whatsoever with intent to hold or detain, or who holds or detains, that person for ransom, reward or to commit extortion or to exact from another person any money or valuable thing, or any person who aids or abets any such act, is guilty of a felony, and upon conviction thereof, shall be punished by imprisonment in the state prison for life without possibility of parole in cases in which any person subjected to any such act suffers death or bodily harm, or is intentionally confined in a manner which exposes that person to a substantial likelihood of death, or shall be punished by imprisonment in the state prison for life with the possibility of parole in cases where no such person suffers death or bodily harm."
The jury was instructed as follows on the allegation of bodily harm in a modified version of CALCRIM No. 1202:
"If you find the defendant guilty of kidnapping for extortion, as Charged in Count 9 with Fernando Quiroz, you must then decide whether the People have proved the additional allegation that the defendant caused Fernando Quiroz to suffer bodily harm. [¶] Bodily harm means any substantial physical injury resulting from the use of force that is more than the force necessary to commit kidnapping.
"The defendant caused Fernando Quiroz's bodily harm if:
"1. A reasonable person in the defendant's position would have foreseen that the defendant's use of force or fear could begin a chain of events likely to result in Fernando Quiroz's bodily harm;
"2. The defendant's use of force or fear was a direct and substantial factor in causing Fernando Quiroz's bodily harm; AND
"3. Fernando Quiroz's bodily harm would not have happened if the defendant had not used force or fear to hold or detain Fernando Quiroz.
"A substantial factor is more than a trivial or remote factor. However, it need not have been the only factor that caused Fernando Quiroz's bodily injury."
Doss argues that when the statute says Quiroz must have "suffer[ed]" bodily harm for the increased sentence to apply, it really means Doss must have inflicted Quiroz's bodily harm. This contorted reading of the statute is purportedly justified because the 1933 amendment that made the death penalty or an LWOP sentence available was enacted in a period of national frenzy over child kidnappings for ransom. Doss insists the legislative response to the Lindbergh and other kidnappings in the 1920s and 1930s was to increase the sentence only where the perpetrator inflicted injury on the victim, not where the victim was injured while trying to escape. The Legislature had a special solicitude, he suggests, for kidnappers who released their victims unharmed, citing People v. Jackson (1955) 44 Cal.2d 511, 515-516 (Jackson). Because Quiroz was injured in an escape attempt, rather than directly at Doss's hands, Doss claims his injury does not qualify to make the kidnapping punishable by life without parole.
Doss's argument presupposes that historical evidence of legislative intent should take precedence over the clear language of the statute, which requires only that the victim have "suffer[ed]" bodily harm. We cannot in compliance with the rules of statutory construction wring Doss's proposed meaning out of section 209, subdivision (a). Our obligation is to discern the legislative intent, but we start with the words of the statute as the most reliable indicator of that intent, not with the history of its enactment. (People v. Albillar (2010) 51 Cal.4th 47, 54-55.) " ' "If the language of the statute is not ambiguous, the plain meaning controls and resort to extrinsic sources to determine the Legislature's intent is unnecessary." ' " (Id. at p. 55.) "When statutory language is clear and unambiguous, there is no need for construction, and courts should not indulge in it." (People v. Edwards (1991) 54 Cal.3d 787, 810.)
The statute clearly says the victim must "suffer" bodily harm to trigger the stiffer sentence of life without parole. It says nothing about who must have inflicted the bodily harm. In fidelity to the statute's actual language, we reject Doss's interpretation and his plea for a reduced sentence on count 9. (See People v. Cole (1982) 31 Cal.3d 568, 572 (Cole) [The Supreme Court has " 'declined to follow the plain meaning of a statute only when it would inevitably have frustrated the manifest purposes of the legislation as a whole or led to absurd results' "].)
This case is governed by People v. Monk (1961) 56 Cal.2d 288 (Monk), not Jackson. Jackson addressed how serious the "bodily harm" needed to be to impose the increased penalty in a case where one of the kidnappers testified the victim was the mastermind of the kidnapping plot, and where the victim was released virtually unharmed. (44 Cal.2d at pp. 516-517.) In Monk, because the victim, while confined in a moving vehicle, was threatened with violence and sexual assault, the injuries she suffered when she threw herself out of the vehicle were deemed to have been proximately caused by the driver who held her trapped there. This case is like Monk, not like Jackson or People v. Baker (1964) 231 Cal.App.2d 301, 302, where the defendants hijacked a truckload of whiskey and confined the driver in the back of the van. The driver had been told he would be released and was not threatened with harm, but he nevertheless jumped out of back of the van and was injured. His injuries were held not to have been the type contemplated by the language "suffers . . . bodily harm" in section 209, subdivision (a). (Id. at p. 303.)
We view People v. Baker, supra, 231 Cal.App.2d 301 as a very narrow exception to Monk, supra, 56 cal.2d 288, applicable where no threats of harm have been made to the victim. Baker has been frequently distinguished in subsequent cases. (See, e.g., People v. Frogge (1969) 270 Cal.App.2d 106, 117-118 (Frogge); People v. Reed (1969) 270 Cal.App.2d 37, 48-50.) Here, as in Monk, the victim's escape attempt was not only foreseeable (which Doss claims is insufficient) but was also in a real sense incited by repeated threats of bodily harm made both before and after the PIN was disclosed, during an unnecessarily extended period of confinement, all as part of Doss's plan as described by Doe. The verdict on count 9 was supported by substantial evidence.
D. CALCRIM No. 1202 on Bodily Harm
In line with the preceding argument, Doss contends the jury was misinstructed on kidnapping with intent to commit extortion. He complains the part of the instruction dealing with bodily harm describes merely a negligence standard, whereas Doss claims more is required. Doss essentially requests a modification of CALCRIM No. 1202, but a failure to request modification of an otherwise correct standard instruction is forfeited if not made at trial. (People v. Mackey (2015) 233 Cal.App.4th 32, 106.) Secondarily, we agree with the Attorney General that the CALCRIM instruction as given was accurate.
As we see it, a "proximate cause" standard is precisely what the Supreme Court has said applies in this circumstance. (Monk, supra, 56 Cal.2d at p. 296.) "Although defendant did not touch [victim], it is apparent that his conduct in threatening her with serious bodily harm put her in fear and was the proximate cause of her jumping out of the automobile and of her consequent injuries. Although no cases have been found involving kidnaping for the purpose of robbery where the bodily harm was not directly inflicted by the accused upon his victim, we are persuaded that the doctrine of proximate causation is applicable in a case such as the present one where the defendant's threats of bodily harm cause his victim to receive injuries in an attempt to escape therefrom." (Ibid.) The Legislature prescribed a stiffer penalty when the defendant, having kidnapped the victim for extortion, puts the victim in such a position as to sustain bodily harm, even if he does not inflict that injury himself.
Baker questioned whether Monk's proximate cause analysis should be applied where no threats prompted the escape attempt. (People v. Baker, supra, 231 Cal.App.2d at pp. 303-306.) People v. Frogge (1969) 270 Cal.App.2d 106 later said in dictum: "We are mindful that the negligence concept of proximate cause does not necessarily control an interpretation of section 209 simply because the Supreme Court used proximate cause as the vehicle for synthesizing the facts peculiar to Monk." (Id. at p. 118.) Frankly, we are not sure what this means, but we believe the same "vehicle" can be used to "synthesize" the facts here. The holding of Frogge, in any case, supports the view that the bodily harm suffered by Quiroz was "within the sense of the term 'bodily harm' as used in section 209." ( Id. at p. 117.) Frogge affirmed an LWOP sentence for kidnapping for robbery with bodily harm where the kidnap victims, who had effectively been threatened with death, initiated a confrontation by charging at the kidnappers and were shot and wounded by them. (Id. at pp. 116-117, 121.)
Such a sentence is not currently available for kidnapping for robbery; only kidnapping for ransom, reward, extortion, or to "exact from another person any money or valuable thing" carries the potential for an LWOP sentence where the victim suffers bodily harm. (§ 209, subds. (a) & (b).)
Doss would derive from Frogge and Baker, supra, 231 Cal.App.2d 301 a new rule: the kidnapper must "directly and immediately" cause the victim's escape attempt—or the victim's injuries must be the "direct product of the kidnapper's gratuitous violence or gratuitous threat of death or bodily harm"—before a kidnap victim injured while escaping will be considered to have "suffer[ed] . . . bodily harm" under section 209, subdivision (a). Similar proposed jury instructions have been rejected. (Reed, supra, 270 Cal.App.2d at p. 49 ["the harm meant must be the consequence of a gratuitous threat or abuse aggravating an already completed crime"]; Frogge, supra, 270 Cal.App.2d at p. 119 [judge properly rejected a jury instruction premised on Baker].) We will await guidance from the Supreme Court before departing in such a way from Monk, supra, 56 Cal.2d 288, which we view as controlling. CALCRIM No. 1202, as given, correctly stated the law as we understand it.
E. Enhancement for Personal Infliction of Great Bodily Injury (§ 12022.7)
Also on the subject of bodily injury to Quiroz, Doss claims the enhancement imposed on count 9 (kidnapping of Quiroz) was improper because that statute requires proof of personal infliction of such injury by the defendant. The jury was so instructed with CALCRIM No. 3160. In this particular, the instruction differed from CALCRIM No. 1202, which allowed the jury to find the victim "suffer[ed] bodily harm" based on a "chain of events" set in motion by the defendant. We fear the difference in instructions was lost on the jury, and we agree with Doss there is no substantial evidence that he "personally" inflicted great bodily injury on Quiroz, as required for sentence enhancement under section 12022.7. (People v. Cole, supra, 31 Cal.3d at p. 573.)
The statutory meaning of section 12022.7 was explained more than 35 years ago: "the enhancement applies only to a person who himself inflicts the injury." (Cole, supra, 31 Cal.3d at p. 572.) "Among the several dictionary definitions of 'personally,' we find the relevant meaning clearly reflecting what the Legislature intended: 'done in person without the intervention of another; direct from one person to another.' (Webster's New Internat. Dict. (3d ed. 1961).) No other expression could have more clearly and concisely expressed what we interpret to be the plain meaning of the Legislature: that the individual accused of inflicting great bodily injury must be the person who directly acted to cause the injury. The choice of the word 'personally' necessarily excludes those who may have aided or abetted the actor directly inflicting the injury." (Cole, at p. 572.)
The Attorney General acknowledges that, in order personally to inflict great bodily injury, " ' "the defendant must be the direct, rather than the proximate, cause of the victim's injuries," ' " quoting People v. Martinez (2014) 226 Cal.App.4th 1169, 1184 (Martinez). He proceeds nonetheless to argue that Doss's kidnapping, hitting, and threatening Quiroz were the "direct" cause of Quiroz's injury, even though Doss was absent from the building when Quiroz fell from the window.
The Attorney General cites three cases in support of his position. In People v. Martinez, supra, 226 Cal.App.4th at page 1185, the defendant handed drugs to a woman who ingested them and died. Martinez held the woman's volitional act in ingesting the drugs did not render the defendant's act any less a direct cause of her death from a drug overdose. In People v. Elder (2014) 227 Cal.App.4th 411, the robbery-kidnapping victim dislocated a finger attempting to resist the crimes and to restrain the robber. By struggling with the victim, the defendant could be found to have inflicted great bodily injury. (Id. at pp. 413, 418, 427.) And in People v. Dominick (1986) 182 Cal.App.3d 1174, the defendant held the victim's head back while another assailant struck her in the face with a pole. The victim broke free from the defendant's grasp and fell, breaking a shoulder. The appellate court held the victim's broken shoulder was inflicted by the defendant for purposes of the great bodily injury enhancement. (Id. at pp. 1185, 1210-1211.)
These were all cases in which the injury was much more directly and immediately caused by the defendant's actions. We agree with Doss they are not similar to his case, and we shall vacate the finding under section 12022.7 on count 9. We note, however, this enhancement added nothing to Doss's sentence, since it was stayed under section 654. Because we reverse for insufficiency of the evidence, double jeopardy principles prohibit the People from retrying the great bodily injury enhancement. (See Burks v. United States (1978) 437 U.S. 1, 18 [reversal on appeal based solely on insufficient evidence bars retrial on double jeopardy grounds]; People v. Seel (2004) 34 Cal.4th 535, 544-550 [a finding of insufficient evidence on a nonrecidivist enhancement is akin to an acquittal, barring retrial on double jeopardy grounds]; People v. Superior Court (Marks) (1991) 1 Cal.4th 56, 78, fn. 22 [double jeopardy principles may apply to firearm enhancement allegation].)
F. Intent to Sell Methamphetamine and Marijuana
Doss also contends the evidence was insufficient to support the findings of possession for sale of methamphetamine and marijuana. He urges us to reverse his convictions on counts 4 and 8 accordingly, without opportunity for retrial. Specifically, he criticizes the prosecution for failing to put on an expert witness to testify that in his or her opinion the drugs were possessed for sale. Although experts can be helpful on this issue, the lack of expert testimony provides no reason to reverse the convictions. (See Spencer v. Collins (1909) 156 Cal. 298, 307 [expert opinion not essential on value of attorney's services]; People v. Brown (2016) 245 Cal.App.4th 140, 165 [expert law enforcement testimony unnecessary where jury could decide for itself whether officers employed excessive force in response to bare-fisted attack]; People v. Brown (2012) 210 Cal.App.4th 1, 8 [expert opinion not essential on deadly or dangerous nature of weapon].) We review Doss's claim for substantial evidence from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (Jackson v. Virginia (1979) 443 U.S. 307, 318-319; People v. Story (2009) 45 Cal.4th 1282, 1296.) If the circumstances reasonably justify the jury's findings, reversal of the judgment is not called for simply because they might also reasonably be reconciled with contrary findings. (Story, at p. 1296.)
Nearly half a century ago the Supreme Court held an expert witness could testify to his or her opinion that a controlled substance was possessed for sale. (People v. Newman (1971) 5 Cal.3d 48, 53, disapproved on another point in People v. Daniels (1975) 14 Cal. 3d 857, 862.) Doss would now turn Newman on its head by making expert testimony not only admissible but also practically essential to a possession for sale conviction. Our reliance on experts has not progressed to that point. (See Spencer v. Collins, supra, 156 Cal. at p. 307; People v. Brown, supra, 210 Cal.App.4th at p. 8.) " 'Where the jury is just as competent as the expert to consider and weigh the evidence and draw the necessary conclusions, then the need for expert testimony evaporates.' " (Torres, supra, 33 Cal.App.4th at p. 47; People v. Brown, supra, 245 Cal.App.4th at p. 157.) Ultimately, it is the physical evidence of possession for sale that is weightier than an unadorned expert opinion. (See People v. Hunt (1971) 4 Cal.3d 231, 238 [where prescription drugs could have been possessed legally for personal use, "[i]n the absence of evidence of some circumstances not to be expected in connection with" personal use, "an officer's opinion that possession of lawfully prescribed drugs is for the purposes of sale is worthy of little or no weight and should not constitute substantial evidence sufficient to sustain the conviction"].)
A finding of intent to sell may be based in part on the amount possessed and the manner of packaging, here, 6.25 grams of marijuana, packaged in 11 one-inch square or one-and-a-half-inch square baggies, with each tiny baggie containing a usable (and therefore salable) amount. Doss was also carrying .74 gram of methamphetamine, when .15 gram is a usable amount, also individually packaged in five separate tiny baggies containing roughly one dose each. The packaging method itself is significant evidence that the drugs were possessed for sale. Doss also possessed an extra supply of tiny baggies, which he is not likely to have had if he had simply bought 11 individual packages of marijuana and five packages of methamphetamine for personal use. The dollar signs drawn on the baggies added more credence to the prosecution's theory that the drugs were intended for sale, not personal use. Although the amount possessed was not as much as in some other possession for sale cases (e.g., People v. Walker (2015) 237 Cal.App.4th 111, 114 [23.14 grams of marijuana]; People v. Ramos (2016) 244 Cal.App.4th 99, 102 [2.9 grams of methamphetamine]), the combination of indicators of intent to sell could reasonably support a guilty verdict beyond a reasonable doubt.
The jury here was instructed on both possession for sale and simple possession. (Cf. People v. Walker, supra, 237 Cal.App.4th at pp. 117-118 [packaging of marijuana in individual baggies was "consistent with" possession for sale but evidence also warranted instruction on simple possession].) Doss's jury rejected a simple possession verdict and agreed unanimously on the possession for sale verdict instead. We trust a properly instructed jury to resolve such a factual question when the evidence could go either way. (See Story, supra, 45 Cal.4th at p. 1296.) There is no basis for reversal.
G. Transportation of Methamphetamine for Sale
Doss contends his conviction for transportation of methamphetamine must be reversed (without opportunity for retrial) because the statute has since been amended to criminalize only transportation of controlled substances for sale. (Health & Saf. Code, § 11379, subd. (c), as amended by 2013 Cal. Stats. ch. 504, § 2, p. 4288 (AB 721).) Because this case went to trial before the amendment went into effect, the instructions to the jurors did not inform them Doss had to be transporting the drugs for sale to be guilty of the offense. Alternatively, even if the conviction stands, Doss contends the imposed punishment must be stayed under section 654 because the transportation and the possession occurred simultaneously in the same drugs.
Doss relies on People v. Ramos, supra, 244 Cal.App.4th at pages 102-104, for the proposition that the statutory amendment is retroactive, and for the proposition that the conviction on the transportation count must be reversed. We agree with Ramos on the retroactivity point. (Id. at p. 103.) On the request for reversal, we find the case distinguishable. The defendant in Ramos was convicted of simple possession of heroin and transportation of heroin before the "transportation for sale" language was added to the statute. Significantly, although she was also convicted of possession of methamphetamine for sale, there was no jury finding of intent to sell heroin. Because the jury had never determined whether defendant held the heroin for sale or personal use, reversal and a remand for a new trial was necessary. (Id. at pp. 102-104.) In the present case, in contrast, the jury found that Doss possessed methamphetamine for sale and also transported that same methamphetamine.
People v. McCloud (2017) 15 Cal.App.5th 948 held that where the defendant was convicted before the statutory amendment went into effect, and the jury instructions did not require the jury to determine whether the defendant intended to use the drugs himself or sell them, there was instructional error requiring reversal. (Id. at pp. 956-960.) The parties did not disagree that error occurred but disagreed about prejudice. (Id. at pp. 956-957.) The court applied the Chapman harmless-beyond-a-reasonable-doubt standard of prejudice used in cases of federal constitutional error. (Chapman v. California (1967) 386 U.S. 18; McCloud, at p. 956.) McCloud decided the evidence would support either a finding that defendant transported drugs for sale or for personal use and reversed the conviction. (McCloud, at pp. 957-960.)
But an instructional error may be deemed harmless if the jury resolved the issue under other, properly given, instructions. (People v. Flood (1998) 18 Cal.4th 470, 484; People v. Sedeno (1974) 10 Cal.3d 703, 721.) Here, the jury did just that when it found Doss guilty of possessing methamphetamine for sale and transporting those same drugs. Though the instruction was faulty in light of the statutory amendment, we agree with the Attorney General that the error was harmless beyond a reasonable doubt. (Flood, at pp. 504-507.) The conviction may stand.
To meet this point, Doss argues there is a difference between transporting a drug with the intent to sell it at some point in time and transporting a drug for the purpose of immediate sale. He claims the statute criminalizes only the latter conduct. We find this a strained reading of the statutory language and decline to adopt it. Transporting a drug that one possesses for the purpose of sale is sufficient to satisfy the statute, even if the defendant is not apprehended while en route to make a specific sale.
We agree section 654 applies to counts 4 (possession of methamphetamine for sale) and 5 (transportation of methamphetamine). The court stayed the sentence on count 4 in the prior sentencing and presumably will do the same on resentencing. This was a proper treatment under section 654.
H. Prior Conviction for Violation of Section 246.3 as a Strike or Serious Felony
Doss argues his 1996 conviction for violating section 246.3, negligent discharge of a firearm, does not qualify as a strike prior (§§ 667, subds. (b)-(j), 1170.12) or serious felony prior under section 667, subdivision (a) because there is no evidence that Doss himself personally discharged the weapon. Because he could have been convicted as an aider and abettor, the crime does not meet the definition of a strike or serious felony prior under section 1192.7, subdivision (c)(8): "any felony in which the defendant personally uses a firearm." The prosecution put on no other proof that Doss's prior crime went beyond the least adjudicated elements of the prior offense. The Attorney General agrees the strike finding must be vacated, as do we. (People v. Golde (2008) 163 Cal.App.4th 101, 110-114.) The district attorney may retry that prior conviction at his election within the statutory time limit. (§ 1382, subd. (a)(2); Barragan, supra, 32 Cal.4th at p. 239; Golde, at p. 113.) If the district attorney elects not to seek a retrial, the prior conviction under section 246.3 shall not be considered a strike or a serious felony prior conviction in resentencing Doss.
I. Resentencing is Required
After the district attorney has made his election on remand, resentencing is required. To his credit, the Attorney General points out several sentencing errors made by the court when it imposed the lengthy, complicated sentence in this case. In imposing a sentence for the offenses in this docket to run consecutively with those in docket No. 5-121454-3, the court nevertheless imposed a full statutory term for transporting methamphetamine, rather than one-third of the middle term, as prescribed by section 1170.1, subdivision (a). (See People v. Baker (2002) 144 Cal.App.4th 1320, 1328-1329.) The judge orally sentenced Doss to 16 months on count 6 for a purported violation of section 12021, but Doss was actually convicted of being a felon in possession of ammunition (former § 12316, subd. (b)(1)) on that count. The abstract of judgment, too, reflects the incorrect code section.
The Attorney General notes that the court sentenced Doss twice on count 10, orally imposing an indeterminate term of 25 years to life for false imprisonment, as well as a determinate term of 16 months for transporting a controlled substance. The abstract of judgment correctly shows count 10 as the charge of false imprisonment in connection with the Quiroz kidnapping. We omit mention of other instances pointed out by the Attorney General where the court misspoke, as they do not affect the abstract of judgment and are unlikely to be repeated.
The Attorney General also points out that the aggregate determinate term pronounced by the court (14 years) is inconsistent with the sum of the unstayed components of that sentence. We also note a discrepancy in the sentence on count 3 (attempted murder): the abstract of judgment shows a sentence of 75 years to life whereas the minutes and the court's oral pronouncement of sentence show a sentence of 52 years to life.
III. DISPOSITION
The sentence is vacated, and the case is remanded to the superior court for further proceedings consistent with the views expressed in this opinion, including resentencing. The finding under section 12022.7 on count 9 that Doss personally inflicted great bodily injury on Quiroz is reversed for insufficient evidence, and retrial is barred. The true finding on Doss's prior conviction of violating section 246.3 alleged as a strike is also reversed for insufficient evidence. The judgment is in all other respects affirmed. The district attorney may, in his discretion, retry the prior conviction allegation within the time allowed by statute. (§ 1382, subd. (a).) If he fails to do so, the superior court shall resentence Doss without considering the findings we have reversed. A new abstract of judgment shall be prepared after resentencing and forwarded to the Department of Corrections and Rehabilitation.
/s/_________
Streeter, Acting P.J. We concur: /s/_________
Reardon, J. /s/_________
Lee, J.
Judge of the Superior Court of California, County of San Mateo, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------