Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 07F01526
BLEASE , J.
Defendant Steven Allen Nichols slammed Jessica Hosek into the door of his apartment, flung her to the floor, punched her in the back of the head several times, and kicked her in the head as she lay bleeding on his carpet. He then escorted her to her car, drove to a nearby residential neighborhood and left her in the car on the side of the street. Defendant walked home, attempted to clean up the blood with Formula 409, and went to sleep. Jessica was found roughly 12 hours later and was rushed to U.C. Davis Medical Center where she remained for eight days in the trauma unit. Defendant was tried by jury and found guilty of assault and kidnapping. As to each charge, the jury also found that defendant personally inflicted great bodily injury upon the victim within the meaning of section 12022.7 of the Penal Code. The trial court sentenced defendant to 12 years and eight months in state prison.
All further statutory references are to the Penal Code unless otherwise indicated.
Defendant’s contentions on appeal are two-fold. Defendant first claims that the evidence was insufficient to establish that Jessica was moved without her consent within the meaning of California kidnapping law. Defendant further claims that the evidence was insufficient to establish that defendant inflicted great bodily injury in the commission of the kidnapping within the meaning of section 12022.7. As will be explained more fully below, defendant is incorrect on both counts. We will affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Assault and Kidnapping of Jessica Hosek
During the early morning hours of February 5, 2007, defendant called Jessica Hosek to arrange erotic services to be performed at his apartment. Defendant obtained her phone number from a website devoted to erotic service advertisements (http://www.myredbook.com). After several phone calls were exchanged, Jessica arrived at defendant’s apartment. Defendant and Jessica agreed upon a price of $200 for a lap dance and full body sensual massage. Defendant paid the agreed upon price and Jessica performed as promised.
Following the erotic entertainment, defendant slammed Jessica into the door of his apartment. Defendant then threw Jessica to the floor. When she attempted to get up, defendant grabbed her hair and punched her in the back of the head several times. He then threw her into the door again. Jessica again fell to the floor. Defendant ended his assault by kicking her in the back of the head as she lay bleeding on his carpet. Defendant then helped Jessica to her feet, escorted her to her car, drove to a nearby residential neighborhood on Hoffman Lane, and left her in the car on the side of the street. Defendant walked home, attempted to clean up the blood with Formula 409, and went to sleep. Defendant’s explanation for the violent assault: he “snapped” when Jessica tried to steal his wallet following the massage.
Jessica remained in her car, parked in front of the house at 5734 Hoffman Lane, for roughly 12 hours. Richard Johnson was doing yard work when he noticed a woman’s leg through the window of the vehicle parked in front of his house. He immediately called the sheriff’s department.
Deputy Jason Harris arrived at the scene at 5:21 p.m. and discovered Jessica in the back seat, breathing, but apparently unconscious. Blood was pooled around her right ear. She was wearing a down jacket over a body suit that was cut and pulled down toward her waist, exposing her breasts. Both articles of clothing were soaked with blood. She wore nothing below the waist. Blood was also found in the front passenger area of the vehicle, the back seat, and outside of the car on the driver’s side rear quarter panel.
Jessica was taken to U.C. Davis Medical Center for treatment. Her left eye was swollen completely shut. She had a dime-sized hole in her head at the hairline just above her left eye. She also had bruises on her forehead, shoulder, and wrist. Detective Bradley Jones received a call at approximately 5:50 p.m. and responded to U.C. Davis Medical Center to attempt to obtain a statement from Jessica. He attempted communication three separate times that night. However, except for agreeing to a sexual assault examination, Jessica was unable to respond to his questions. Detective Jones returned to the trauma unit the next two days, and except for confirming her address, Jessica was still unable to formulate coherent responses to his questions. According to Dr. Jan Muizelaar, chief of neurosurgery, Jessica suffered “fairly severe” trauma to her head and face. Her injuries included: (1) a fractured orbital socket; (2) a fractured right temporal bone; (3) subdural hematomas in both temporal lobes between the brain and the covering of the brain; (4) subdural hematomas between the brain and the falx, the structure that divides the two halves of the brain; (5) subarachnoid hemorrhaging (bruising around the brain); (6) multiple brain contusions (bruising inside the brain itself); and (7) multiple lacerations in the right occipital area and left frontal area of the scalp. These injuries would “very likely” have rendered Jessica unconscious for a couple of hours following the attack. As a result of these injuries, Jessica remained in the trauma unit for eight days.
Detective Angela Kirby had also responded to the scene at Hoffman Lane, and subsequently obtained a search warrant for Jessica’s cell phone records. Jessica’s cell phone records revealed a series of phone calls to and from defendant between 3:18 a.m. and 4:44 a.m., the morning of February 5. Detective Jones executed a search warrant on Jessica’s apartment and discovered defendant’s address written on a pad of paper in her apartment.
On February 9, Detective Jones, along with Detectives Jim Barnes and Rick Emerson, executed a search warrant on defendant’s apartment. The search of defendant’s apartment revealed blood stains on the living room carpet and sofa. DNA testing confirmed the blood to be Jessica’s. Defendant’s DNA was also found on the body suit Jessica was wearing when she was found in her car on Hoffman Lane.
Defendant’s Admissions
After being informed that he was not under arrest and not obligated to answer any questions, defendant agreed to talk to Detectives Jones and Barnes in a police vehicle outside his apartment while they awaited the search warrant. During the interview, defendant admitted to slamming Jessica into the door, throwing her to the ground, punching her in the back of the head several times, and kicking her in the back of the head as she lay on the floor of his apartment. He also admitted to taking Jessica to her vehicle, driving her to Hoffman Lane, and leaving her in the car on the side of the street. However, defendant maintained throughout the interview that after he assaulted Jessica, she requested that he help her to leave. Defendant was arrested immediately following the interview.
While at the Sacramento County Jail, defendant made three phone calls to his wife, Brandi Nichols. During these conversations, defendant admitted to hitting Jessica with “the door, the floor and my hands.” According to defendant, he “snapped” when Jessica tried to steal his wallet. During the third conversation, defendant stated: “You know, I didn’t take her where she didn’t want to go. I didn’t know where to take her. She said she wanted out of there. I picked her up and helped her to the car. Put her in the car and drove her down the street.” When asked where he left her, defendant responded: “It wasn’t far. Just two blocks down the road in like a residential neighborhood. ‘Cause I didn’t know where to -- you know, where she wanted to go. Where she lived or anything. So I just took her down the street a couple blocks.”
Procedural History
Defendant was charged with attempted murder (§§ 664/187, subd. (a)), assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(1)), kidnapping (§ 207, subd. (a)), robbery (§ 211), and possession of a controlled substance (Health & Saf. Code, § 11350, subd. (a)). With regard to the first three counts, the information further alleged that defendant personally inflicted great bodily injury upon the victim within the meaning of section 12022.7. After an initial plea of not guilty on all counts, defendant pled no contest on the charge of possession of a controlled substance.
Defendant was tried by jury and convicted of assault and kidnapping. The jury also found that defendant personally inflicted great bodily injury upon the victim within the meaning of section 12022.7. The jury acquitted defendant on the attempted murder and robbery counts, but found defendant guilty of the lesser included offense of theft (§ 484). The trial court sentenced defendant to 12 years and eight months in state prison (upper term of eight years on the kidnapping, plus three years for the personal infliction of great bodily injury enhancement, one year on the assault with great bodily injury (one-third the midterm), plus eight months for possession of a controlled substance (one-third the midterm)).
Defendant filed a timely notice of appeal.
DISCUSSION
I
Defendant’s first contention on appeal is that the evidence was insufficient to establish that Jessica was moved without her consent within the meaning of California kidnapping law. Defendant is mistaken.
“In assessing the sufficiency of the evidence, we review the entire record in the light most favorable to the judgment to determine whether it discloses evidence that is reasonable, credible, and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] Reversal on this ground is unwarranted unless it appears ‘that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].’ [Citation.]” (People v. Bolin (1998) 18 Cal.4th 297, 331.) “The standard of appellate review is the same when the evidence of guilt is primarily circumstantial. ‘Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence [citations], it is the jury, not the appellate court which must be convinced of the defendant’s guilt beyond a reasonable doubt. “‘If the circumstances reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the circumstances might also be reasonably reconciled with a contrary finding does not warrant a reversal of the judgment.’”’ [Citations.]” (People v. Holt (1997) 15 Cal.4th 619, 668.)
Section 207, subdivision (a), defines kidnapping as follows: “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.” “[I]n order to constitute section 207(a) kidnapping, the victim’s movement must be accomplished by force or any other means of instilling fear.” (People v. Majors (2004) 33 Cal.4th 321, 326.)
Defendant claims that the record contains no evidence that Jessica’s movement was accomplished by force or other means of instilling fear. According to defendant, the only evidence in the record concerning Jessica’s movement establishes that she not only consented, but affirmatively requested to be removed from defendant’s apartment, taken to her car, driven to Hoffman Lane, and left there on the side of the street. On the contrary, defendant admitted in several conversations with detectives and his wife that he violently assaulted Jessica by slamming her into the door of his apartment, flinging her to the floor, and punching and kicking her in the back of the head. The jury could have inferred from the circumstances of this assault that defendant had instilled a reasonable state of fear in Jessica immediately following the attack. (See People v. Iniguez (1994) 7 Cal.4th 847, 857 [“‘Fear’ may be inferred from the circumstances despite even superficially contrary testimony of the victim”]; People v. Renteria (1964) 61 Cal.2d 497, 499.)
Defendant further admitted that immediately following the assault, he picked her up, walked her to her car, and drove her to Hoffman Lane, where he abandoned her on the side of the street. While defendant also stated in these conversations that Jessica asked him to move her, Dr. Muizelaar testified that, given the severity of the head trauma Jessica suffered at the hands of defendant, it was “very likely” that she was unconscious for a couple hours following the attack. Moreover, the jury was shown pictures of Jessica’s injuries, taken immediately after she was discovered in the car. The jury was not required to believe defendant’s assertion that Jessica was not only conscious following the assault, but coherent enough to ask him to take her to the car, drive her to Hoffman Lane, and leave her there.
Defendant cites People v. Mercer (1962) 210 Cal.App.2d 153 (Mercer), and People v. Griego (1955) 136 Cal.App.2d 51 (Griego), for the following rule of law: “[I]f the prosecution presents as a part of its case a statement of the defendant evidencing justification for the alleged crime, the prosecution is bound by that evidence in the absence of proof to the contrary.” (Griego, supra, 136 Cal.App.2d at p. 56; Mercer, supra, 210 Cal.App.2d at p. 158.) According to defendant, this rule requires reversal of his kidnapping conviction because the prosecution relied upon his statements to police and to his wife indicating that he moved Jessica at her request.
However, as our Supreme Court explained in People v. Acosta (1955) 45 Cal.2d 538 (Acosta): “The courts may sometimes say that the prosecution is ‘bound by’ extrajudicial statements of defendant which are introduced by the prosecution and which are irreconcilable with guilt, but this concept is applicable only where there is no other competent and substantial evidence which could establish guilt.” (Acosta, supra, 45 Cal.2d at pp. 542-543.) Moreover, if there is any “‘well-established circumstance’” which may reasonably be regarded as incompatible with defendant’s exculpatory version of events, then the jury may consider all of the evidence in determining whether to convict or acquit. (Id. at pp. 541-542.)
In this case, while defendant’s extrajudicial statements concerning Jessica’s movement negate an element of kidnapping, the circumstances surrounding her movement are well-established and incompatible with defendant’s version of events. The prosecution presented competent and substantial evidence of the severity of the injuries suffered by Jessica and admittedly inflicted by defendant. Based upon the testimony of Dr. Muizelaar concerning the severity of the beating and his medical opinion that Jessica was “very likely” unconscious for a couple hours following the attack, the jury was reasonably entitled to infer that Jessica was moved by force and against her will.
Defendant’s reliance on People v. Toledo (1948) 85 Cal.App.2d 577, 581, and People v. Salaz (1924) 66 Cal.App. 173, 181, is similarly misplaced. In each of these homicide cases, the only prosecution evidence establishing that defendant killed the victim was defendant’s admission, which also included a statement that the victim was killed in self-defense. There being no evidence, direct or circumstantial, contradicting defendant’s version of events, the court in each case reversed the conviction as not supported by the evidence. Here, as explained above, the prosecution not only relied on defendant’s admissions concerning the assault and movement of Jessica Hosek, but also on the circumstantial evidence of the severity of her injuries and the testimony of Dr. Muizelaar indicating that Jessica would likely have been unable to request that defendant move her to Hoffman Lane.
The circumstances surrounding Jessica’s movement reasonably justify the jury’s implicit finding that she was moved against her will. Consequently, even if we were to be of the opinion that the circumstances might also be reasonably reconciled with a contrary finding, we would not be warranted in reversing the judgment. (People v. Holt, supra, 15 Cal.4th at p. 668.)
II
Defendant’s final contention on appeal is that the evidence was insufficient to establish that defendant inflicted great bodily injury “in the commission of” the kidnapping within the meaning of section 12022.7. Defendant does not dispute that he inflicted great bodily injury on Jessica. His argument is that he inflicted such injury prior to moving Jessica, and that the crime of kidnapping does not begin until the movement of the victim. So, says defendant, the injury could not have been inflicted “in the commission of” the kidnapping. Defendant is mistaken.
Section 12022.7 provides in relevant part: “Any person who personally inflicts great bodily injury on any person other than an accomplice in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison for three years.” (§ 12022.7, subd. (a).) “‘In considering the words of a statute, an appellate court is required to read the enactment in the light of the objective sought to be achieved by it as well as the evil sought to be averted.’” (People v. Mixon (1990) 225 Cal.App.3d 1471, 1488 (Mixon).)
In People v. Jones (2001) 25 Cal.4th 98, our Supreme Court resolved the meaning of the statutory phrase “in the commission of” contained in section 12022.3, subdivision (a), which enhances a defendant’s sentence for the use of a weapon during the commission of certain sex offenses. The court held that “the ‘commission’ of a sexual offense specified in Penal Code section 12022.3, subdivision (a), does not end with the completion of the sex act, but continues as long as the assailant maintains control over the victim.” (Id. at p. 109.) As we explained in People v. Castro (1994) 27 Cal.App.4th 578, the phrase “in the commission of” contained in statutes providing for an enhancement for the use of a weapon in the commission of a crime must be broadly construed in order to advance the purpose of such enhancements. (Id. at p. 586.) The purpose of a weapon use enhancement is to deter weapon use during the commission of crimes because such use increases the risk of physical injury to the victim. (Ibid.) “This purpose is advanced by enhancing the penalty when a rapist uses a weapon against the victim after the sex act but while the rapist maintains control over the victim.” (Ibid.)
Similarly, in Mixon, supra, the court held that for purposes of section 12022.7’s great bodily injury enhancement, the “commission” of the crime of burglary did not end with the defendant’s departure from the victim’s apartment where the defendant retained control over the victim. (Mixon, supra, 225 Cal.App.3d at p. 1488.) As the court explained, “‘[i]n enacting section 12022.7, the clear intent of the Legislature was to deter infliction of serious bodily injury on victims of burglary, robbery and other felonies . . . .’” (Ibid.) The court concluded that by removing the victim from the site of the burglary, “defendant extended the need for section 12022.7’s deterrent threat and thereby its effect.” (Ibid.)
In this case, defendant inflicted great bodily injury on Jessica immediately prior to moving her to her car, and then to Hoffman Lane. His contention that such injury was not inflicted in the commission of kidnapping fails for two reasons.
First, we must recall that the crime of kidnapping is defined as follows: “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).) By defendant’s own account, Jessica was attempting to leave his apartment when he forcibly detained her by means of the vicious assault. Jessica suffered great bodily injury during this detention. It is the forcible detention and movement of the victim against the victim’s will that constitutes kidnapping. (§ 207, subd. (a).) By forcibly detaining Jessica by means of inflicting great bodily injury, defendant began the need for section 12022.7’s protection and thereby its effect. Just as section 12022.7 continues to apply so long as the defendant retains control over the victim, the section must also apply when the defendant inflicts great bodily injury in order to gain control over the victim.
Second, even if the initial assault did not occur “in the commission of” the kidnapping, the jury was justified in finding that by moving Jessica to Hoffman Lane and abandoning her there, with no indication that help would be forthcoming, defendant exacerbated her already serious injuries. “‘Whether the harm resulting to the victim . . . constitutes great bodily injury is a question of fact for the jury. [Citation.] If there is sufficient evidence to sustain the jury's finding of great bodily injury, we are bound to accept it, even though the circumstances might reasonably be reconciled with a contrary finding.’ [Citation.]” (People v. Wolcott (1983) 34 Cal.3d 92, 107.) Here, aside from the initial injuries sustained in the violent assault, the jury was justified in finding that the 12 hours Jessica spent stranded in her vehicle on Hoffman Lane caused her additional serious bodily injury.
DISPOSITION
The judgment is affirmed.
We concur: SCOTLAND , P. J., BUTZ , J.