Filed 7/25/16 P. v. Bailey CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F069734
         Plaintiff and Respondent,
                                                                             (Super. Ct. No. VCF284160)
                   v.

JAMES BAILEY,                                                                            OPINION
         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Tulare County. Darryl B.
Ferguson, Judge.
         Anne V. Moore, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney
General, Daniel B. Bernstein and Catherine Chatman, Deputy Attorneys General, for
Plaintiff and Respondent.
                                                        -ooOoo-
                                      INTRODUCTION
       Over the course of approximately 30 hours, defendant James Bailey engaged in a
crime spree that commenced with the theft of an idling car containing an infant and ended
with the theft of a motorcycle helmet from a dealership the next day. Defendant was
arrested shortly after stealing the helmet and subsequently charged with kidnapping a
child in violation of Penal Code section 207, subdivision (a), (count 1);1 two counts of
vehicle theft in violation of Vehicle Code section 10851, subdivision (a), (counts 2 & 3);
receiving stolen property (vehicle) in violation of section 496d, subdivision (a), (count 4);
burglary in violation of section 459 (count 5); and petty theft with a prior in violation of
section 666 (count 6). It was further alleged that defendant suffered a prior conviction for
receiving stolen property (vehicle) (§ 666.5) and served two prior prison terms (§ 667.5,
subd. (b)). Defendant was convicted by a jury of counts 1, 2, 3, 5, and 6, and in a
bifurcated proceeding, the jury found the enhancement allegations under sections 666.5
and 667.5, subdivision (b), true. Defendant was sentenced to 11 years for kidnapping
(upper term), one year for each of the two vehicle theft counts, and eight months for
burglary. The petty theft with a prior was stayed pursuant to section 654, and defendant
received one year for each of the two prior prison term enhancements, for a total
determinate prison term of 15 years 8 months.
       On appeal, defendant argues the trial court erred in failing to modify sua sponte
the pattern jury instruction for kidnapping a child under 14 years old (CALCRIM
No. 1201). Defendant contends the instruction should have been modified to clarify that
(1) the specific intent required—movement of a child under 14 years old a substantial
distance “for an illegal purpose or with an illegal intent”—be directed at the victim and
(2) he had to have known the victim was in the car. (§ 207, subd. (e), italics added.)
Alternatively, defendant argues his trial counsel rendered ineffective assistance of


1      All further statutory references are to the Penal Code unless otherwise specified.


                                                2.
counsel in failing to request those modifications to CALCRIM No. 1201. Finally, he
argues counsel rendered ineffective assistance of counsel in failing to move for exclusion
of his statements to the police as involuntary.
       The People respond it would have been improper for the trial court to instruct the
jury that the illegal purpose or intent had to be directed at the victim because such an
instruction is contrary to law and, read together, the jury instructions adequately
addressed the requisite mental state required to commit kidnapping. The People also
contend defendant’s statements to police were not coerced and were voluntary, and his
trial counsel could reasonably have thought he was properly advised of his rights and
waived them.
       We reject defendant’s argument that the illegal purpose or intent had to be directed
at the victim, we find any instructional error as to the requirement of knowledge harmless
under Chapman v. California (1967) 386 U.S. 18, 24 (Chapman), and we reject
defendant’s claim his statements to police were coerced and, therefore, involuntary.
Accordingly, we affirm the judgment.
                                 FACTUAL SUMMARY
       On June 6, 2013, Santos N., a one-month old-infant, was secured in his rear-facing
infant seat in the back seat of his parents’ car, a 2009 Dodge Charger. It was 4:30 a.m.
and his mother had gone back into their apartment to retrieve the father’s work socks.
The father then realized he forgot his lunch and went back into the apartment to get it,
leaving Santos momentarily alone in the car. The key was in the ignition, the engine was
running, the windows were rolled up, and the driver’s side door was sufficiently ajar to
keep the interior cabin light on. Defendant hopped in the driver’s seat, backed out, made
a U-turn, and took off. Santos’s father heard the car peeling out from inside the
apartment and ran out to the car, which was still backing up. He tried to take ahold of the
door to open it, but the doors automatically lock when the car is put into drive. He



                                             3.
banged on the car while yelling his baby was in the car and for the person to leave his
baby.2
         Defendant then drove from the apartment in Tulare to Corcoran, a drive which
takes approximately 20 to 25 minutes. He abandoned the car in front of a house in
Corcoran and stole a bicycle that was leaning up against the house. Approximately one
mile down the road, he came upon a motorcycle parked in a carport with the key left in
the ignition and he abandoned the bicycle for the motorcycle.
         The high temperature that day was 94 degrees. Fortunately, a woman came out of
the house in Corcoran at approximately 6:00 a.m. and discovered the abandoned car in
her driveway. Santos was thereafter reunited with his parents, unharmed.
         The next day, defendant rode the stolen motorcycle to a dealership in Tulare.
After looking at motorcycle helmets for approximately 10 minutes, defendant walked out
the door with a helmet without paying for it. He was pursued by an employee, who
slapped at his back as he was riding away. The employee fell to the street and as he was
getting up, he saw defendant’s bike flipping up, as it had just hit the curb on the other
side of the street. While defendant was still in the process of getting up, the employee
went across the street and retrieved the stolen helmet. Defendant was subsequently
arrested at the scene.
         During questioning by detectives at the police station, defendant confessed to
stealing the car, bicycle, motorcycle, and helmet, but denied there was a baby in the car.
At trial, his defense was limited to cross-examining the prosecution’s witnesses. The
main trial issue was the kidnapping charge and whether defendant knew the baby was in
the car, either initially or at some point prior to abandoning the car.




2        The father testified at trial through a Spanish interpreter.


                                                   4.
                                         DICUSSION
I.     Instructional Errors by Trial Court
       A.      Standard of Review
       We review allegations of instructional error de novo. (People v. Waidla (2000) 22
Cal.4th 690, 733; People v. Martin (2000) 78 Cal.App.4th 1107, 1111.) “In criminal
cases, even in the absence of a request, a trial court must instruct on general principles of
law relevant to the issues raised by the evidence and necessary for the jury’s
understanding of the case.” (People v. Martinez (2010) 47 Cal.4th 911, 953.) “‘That
obligation includes instructions on all of the elements of the charged offense,’” (People v.
Rubalcava (2000) 23 Cal.4th 322, 334), and the failure to so instruct is a violation of due
process (Middleton v. McNeil (2004) 541 U.S. 433, 437, per curiam; People v. Mills
(2012) 55 Cal.4th 663, 677). Conversely, trial courts are not required to give “‘pinpoint’
instructions” sua sponte; such instructions must be requested. (People v. Saille (1991) 54
Cal.3d 1103, 1119, 1121; People v. Anderson (2011) 51 Cal.4th 989, 996–997.)
       “[I]nstructions are not considered in isolation. Whether instructions are correct
and adequate is determined by consideration of the entire charge to the jury.” (People v.
Holt (1997) 15 Cal.4th 619, 677.) “If the charge as a whole is ambiguous, the question is
whether there is a ‘“reasonable likelihood that the jury has applied the challenged
instruction in a way” that violates the Constitution.’” (Middleton v. McNeil, supra, 541
U.S. at p. 437.) Jurors are presumed to have understood and followed the trial court’s
jury instructions. (People v. Sandoval (2015) 62 Cal.4th 394, 422.)
       B.      Movement of Child with Illegal Intent or for Illegal Purpose
       Defendant was charged with kidnapping a child in violation of section 207, which
provides in relevant part: “(a) 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. [¶] … [¶] (e) For purposes of those types of kidnapping

                                                5.
requiring force, the amount of force required to kidnap an unresisting infant or child is
the amount of physical force required to take and carry the child away a substantial
distance for an illegal purpose or with an illegal intent.” (§ 207, subds. (a), (e).)
         The trial court instructed the jury pursuant to CALCRIM No. 1201, the pattern
instruction for the kidnapping charge. That instruction provided in relevant part:
         “The defendant is charged in Count 1 with kidnapping a child, violation of Penal
Code Section 207. To prove that the defendant is guilty of this crime the People must
prove:
         “1, the defendant used physical force to take and carry away an unresisting child.
         “2, the defendant moved the unresisting child a substantial distance.
         “3, the defendant moved the child with an illegal intent or for an illegal purpose.
         “And 4, the child was under 14 years old at the time of the movement.”
         Simple kidnapping is a general intent crime. (People v. Davis (1995) 10 Cal.4th
463, 519; People v. Bell (2009) 179 Cal.App.4th 428, 435, fn. 2; People v. Magpuso
(1994) 23 Cal.App.4th 112, 118.) Kidnapping an unresisting infant or child, however,
involves the additional intent element of moving a child “for an illegal purpose or with an
illegal intent.” (§ 207, subd. (e); In re Michele D. (2002) 29 Cal.4th 600, 612
(Michele D.).) This requirement was originally read into the statute by the California
Supreme Court in People v. Oliver (1961) 55 Cal.2d 761, 768, to prevent the potential
prosecution of someone who moves a child with a lawful intent or purpose, such as a
good Samaritan moving a child out of harm’s way. In 2002, the California Supreme
Court addressed the illegal purpose or intent requirement and held it was an element of
the offense that must be proven by the prosecution. (Michele D., supra, at p. 612). The
kidnapping statute was subsequently amended by the Legislature in 2004 to include that
element. (§ 207, subd. (e).)
         Defendant asserts on appeal that the illegal purpose or intent must have been
directed at Santos and the trial court had a duty to sua sponte instruct the jury to that

                                               6.
effect. Given the California Supreme Court’s decision in People v. Hill (2000) 23
Cal.4th 853, 858 (Hill), we find this argument without merit.
       While Hill did not address a single victim situation in which the defendant claimed
lack of knowledge the victim was in the vehicle, its holding still controls notwithstanding
that distinction. That is so because in Hill, the court held that movement of a child “for
an illegal purpose or with an illegal intent” under section 207, subdivision (e), is satisfied
so long as the movement is “‘carried out as the direct result of the intent to commit a
crime.’” (Hill, supra, 23 Cal.4th at p. 858, italics added; Michele D., supra, 29 Cal.4th at
p. 612.) The crime in question need not be directed at the kidnapping victim. (Hill,
supra, at p. 858.) We therefore reject the contention that the trial court erred in failing to
modify the instruction sua sponte to state that the illegal purpose or intent must be
directed at the child.
       It has long been recognized that the “element was created … to ensure that an
innocent carrying away of a very young victim would not result in a kidnapping
conviction.” (People v. Jones (2003) 108 Cal.App.4th 455, 466.) Here, defendant was
not engaged in lawful conduct when he stole the car, and his movement of Santos was not
“for a good or innocent purpose.” (People v. Campos (1982) 131 Cal.App.3d 894, 899.)
As a result, his movement of Santos during the course of the car theft suffices to establish
liability, assuming defendant had knowledge Santos was in the car (discussed in the next
section), and that modifying the instruction to state that the illegal intent or purpose must
have been directed at Santos would have been a misstatement of the law. (Hill, supra, 23
Cal.4th at p. 858.)
       C.     Knowledge of Victim’s Presence in Vehicle
       Defendant’s knowledge that Santos was in the car was the central trial issue and
defendant contends the jury should have been instructed on the requirement of
knowledge. “Generally, ‘“[t]he existence of a mens rea is the rule of, rather than the
exception to, the principles of Anglo-American criminal jurisprudence.” … ’ [Citation.]

                                              7.
In other words, there must be a union of act and wrongful intent, or criminal negligence.
[Citations.] ‘So basic is this requirement that it is an invariable element of every crime
unless excluded expressly or by necessary implication.’ [Citation.] In addition, Penal
Code section 26 provides that a person is incapable of committing a crime where an act is
performed in ignorance or mistake of fact negating criminal intent; a crime cannot be
committed by mere misfortune or accident. [Citation.]” (People v. Coria (1999) 21
Cal.4th 868, 876.)
       Prior to jury selection, the trial court stated it did not matter if defendant knew the
baby was in the car or not, and that appears to have been a misstatement of the law, as
kidnapping is not a strict liability offense.3 (See People v. Davis, supra, 10 Cal.4th at
p. 519 [simple kidnapping is a general intent crime]; People v. Magpuso, supra, 23
Cal.App.4th at p. 118 [same]; see also Michele D., supra, 29 Cal.4th at p. 612
[kidnapping unresisting infant or child involves additional element of movement of the
child with an illegal intent or for an illegal purpose].) However, the trial court did not
repeat this statement to the jury. In addition to instructing on the elements of kidnapping
a child (CALCRIM No. 1201), the trial court read the pattern instruction, CALCRIM
No. 252, on the requirement of “proof of the union or joint operation of act and wrongful
intent.” The instruction defined both general intent and specific intent, and informed the
jury that kidnapping was a specific intent crime. (Michele D., supra, at p. 612; People v.
Oliver, supra, 55 Cal.2d at pp. 764–768.) As a result, the jury was instructed regarding
intent, the need for a union of act and wrongful intent, and the elements of the offense.
(People v. Musselwhite (1998) 17 Cal.4th 1216, 1250.) We need not determine whether
these instructions together were adequate, as the People contend, because even assuming



3       “Strict liability offenses eliminate the ‘requirement of mens rea; that is, the requirement
of a “guilty mind” with respect to an element of a crime.’” (People v. Rubalcava, supra, 23
Cal.4th at p. 331.)


                                                 8.
it was error not to instruct the jurors defendant had to have known the baby was in the
car, such error was harmless on this record.4
        The car was stolen at approximately 4:30 in the morning in Tulare. Santos’s
father had left the car door sufficiently ajar to keep the interior light on, illuminating the
cabin. The car’s cabin was small and the interior was dark in color. In contrast, although
rear-facing, the infant seat was light in color and it noticeably protruded into the space
between the two front seats, as evidenced by the prosecution’s exhibits. After jumping
in, defendant backed up the car, with Santos’s father pounding on it, and then drove
approximately 20 to 25 minutes to Corcoran. Although defendant repeatedly denied
there was a baby in the car during interrogation, the evidence demonstrated there was and
the jury necessarily found so. In his recorded statement, which the jury considered,
defendant’s denial there was a baby in the car was juxtaposed against his statement he
looked in the back. Defendant also stated he wiped the car for fingerprints. Given the
obviousness of the infant seat in the car, the length of time defendant was in the car with
the baby, and defendant’s implausible denial there was a baby in the car despite stating he
looked in the back and he wiped off his fingerprints, coupled with the obvious focus on
defendant’s knowledge of the baby’s presence by both parties during trial, we find any
error “harmless beyond a reasonable doubt.” (Chapman, supra, 386 U.S. at p. 24.)




4       The state standard requires us to consider “whether there is a ‘reasonable probability’ that
a result more favorable to the defendant would have occurred absent the error.” (People v.
Aranda (2012) 55 Cal.4th 342, 354.) The federal standard requires us to find “‘beyond a
reasonable doubt that the error complained of did not contribute to the verdict obtained.’” (Id. at
p. 367.) We do not determine whether the alleged error in this case is reviewable under the
state’s Watson standard (People v. Watson (1956) 46 Cal.2d 818, 836) or the federal Chapman
standard (Chapman, supra, 386 U.S. at p. 24) because applying the stricter Chapman standard,
we find the error “harmless beyond a reasonable doubt.” (Ibid.; see People v. Sandoval, supra,
62 Cal.4th at pp. 421–422; People v. Wilkins (2013) 56 Cal.4th 333, 348–349; People v. Jones
(2013) 57 Cal.4th 899, 967; People v. McDonald (2015) 238 Cal.App.4th 16, 27.)


                                                 9.
II.    Ineffective Assistance of Counsel
       Finally, defendant argues his trial counsel’s failure to challenge the admission of
his statements to detectives constituted ineffective assistance of counsel.5 Defendant
bears the burden on appeal of proving ineffective assistance of counsel. (People v.
Mattson (1990) 50 Cal.3d 826, 876–877.) “To secure reversal of a conviction upon the
ground of ineffective assistance of counsel under either the state or federal Constitution, a
defendant must establish (1) that defense counsel’s performance fell below an objective
standard of reasonableness, i.e., that counsel’s performance did not meet the standard to
be expected of a reasonably competent attorney, and (2) that there is a reasonable
probability that defendant would have obtained a more favorable result absent counsel’s
shortcomings.” (People v. Cunningham (2001) 25 Cal.4th 926, 1003; see generally
Strickland v. Washington (1984) 466 U.S. 668, 687–694.) “‘A reasonable probability is a
probability sufficient to undermine confidence in the outcome.’ [Citations.]” (People v.
Cunningham, supra, at p. 1003.) “[I]n assessing a Sixth Amendment attack on trial
counsel’s adequacy mounted on direct appeal, competency is presumed unless the record
affirmatively excludes a rational basis for the trial attorney’s choice. [Citations.]”
(People v. Musselwhite, supra, 17 Cal.4th at p. 1260; accord, People v. Stewart (2004) 33
Cal.4th 425, 459.)
       Defendant’s trial counsel did not object to the admission of defendant’s statement
to detectives on the ground of involuntariness or any other ground. As a result, the claim
is forfeited on appeal. (People v. Williams (2010) 49 Cal.4th 405, 435; People v. Maury
(2003) 30 Cal.4th 342, 387–388.) Even if we were to consider the claim on its merits,
however, defendant’s challenge fails.



5        Having rejected defendant’s instructional challenges, we do not reach his argument that
his trial counsel’s failure to request those modifications also constituted ineffective assistance of
counsel.


                                                 10.
       After being taken into custody, but prior to interrogation, defendant was read his
rights under Miranda v. Arizona (1966) 384 U.S. 436 (Miranda), he said he understood
them, and he agreed to talk with detectives. Trial counsel did not challenge the
admission of defendant’s statements; however, on appeal, defendant argues his
statements were coerced because detectives lied and made impliedly threatening and
promising statements, and because he was delusional and hallucinatory during the
interrogation.
       “The sole concern of the Fifth Amendment, on which Miranda was based, is
governmental coercion” and “coercive police activity is a necessary predicate to the
finding that a confession is not ‘voluntary’ within the meaning of the Due Process Clause
of the Fourteenth Amendment.” (Colorado v. Connelly (1986) 479 U.S. 157, 167, 170;
People v. Cunningham (2015) 61 Cal.4th 609, 643.) “The test for the voluntariness of a
custodial statement is whether the statement is ‘“the product of an essentially free and
unconstrained choice”’ or whether the defendant’s ‘“will has been overborne and his
capacity for self-determination critically impaired”’ by coercion. [Citation.] No single
factor is dispositive; ‘rather courts consider the totality of [the] circumstances.’
[Citations.] Relevant considerations include ‘“the crucial element of police coercion
[citation]; the length of the interrogation [citation]; its location [citation]; its continuity”
as well as “the defendant’s maturity [citation]; education [citation]; physical condition
[citation]; and mental health.”’ [Citations.]” (People v. Cunningham, supra, at pp. 642–
643.) “‘In assessing allegedly coercive police tactics, “[t]he courts have prohibited only
those psychological ploys which, under all the circumstances, are so coercive that they
tend to produce a statement that is both involuntary and unreliable.”’ [Citations.]” (Id. at
p. 643.)
       We do not find the interrogation in this case even arguably coercive. It occurred
in a police station interview room during the daytime and was not lengthy, lasting only 85
to 95 minutes, approximately. Defendant was initially interrogated for between 75 and

                                               11.
80 minutes, at which time a “stale mate” was reached. The two detectives and defendant
exited the interview room, and defendant reinitiated the conversation regarding the case
when he and one of the detectives stopped at the drinking fountain. The second part of
the interrogation lasted 10 to 15 minutes.
       At the time, defendant was 28 years old, with no apparent health issues beyond the
mental health concerns addressed below. He was born in California, earned a high school
diploma, and is of normal intelligence according to the psychiatrist who evaluated him.
Defendant was also not new to the criminal justice system, having spent time in the
California Youth Authority as a juvenile and in state prison as an adult.
       Defendant was provided water to drink during the interrogation, and review of the
transcript of the interrogation does not reveal any “particularly harsh or accusatory” tone
to the questioning. (People v. Cunningham, supra, 61 Cal.4th at p. 644.) The detectives
neither threatened defendant nor promised him any benefits, and his assertion that threats
were implied because he was questioned about his section 290 registration status is not
supported by the record. (People v. McCurdy (2014) 59 Cal.4th 1063, 1088; People v.
Williams, supra, 49 Cal.4th at p. 443; People v. Ray (1996) 13 Cal.4th 313, 339–340.)
Moreover, although detectives engaged in deception regarding having access to DNA
results that would link him to the stolen car, police are not prohibited from using
deceptive tactics so long as the tactics are not “‘“so coercive that they tend to produce a
statement that is both involuntary and unreliable.”’ [Citations.]” (People v.
Cunningham, supra, at p. 643; People v. Williams, supra, at p. 443; People v. Ray, supra,
at pp. 339–340; People v. Mays (2009) 174 Cal.App.4th 156, 164–165.) Here, while the
detectives used tactics that were deceptive, they were not coercive.
       Finally, there is no suggestion in the record that the detectives exploited
defendant’s mental state to produce incriminating statements. (People v. Cunningham,
supra, 61 Cal.4th at p. 644.) Although defendant stated he injected methamphetamine
that morning and had been up for two weeks, and his statements during the first part of

                                             12.
the interrogation were interspersed with bizarre and nonsensical religious references,
“there is no evidence his ‘abilities to reason or comprehend or resist were in fact so
disabled that he was incapable of free or rational choice.’” (Id. at p. 645.) To the
contrary, defendant responded to the questions detectives asked him and although he was
evasive, his answers tracked their questions. During the second part of the interrogation,
which he initiated, he was notably more cooperative and his answers were clearer and
more detailed.6
       We find defendant’s statements were not coerced and were, therefore, voluntary.
Accordingly, we reject his claim that counsel was ineffective in failing to move to
exclude the statements.
                                          DISPOSITION
       The judgment is affirmed.


                                                           ___________________________
                                                                              KANE, J.

WE CONCUR:


__________________________
HILL, P.J.


__________________________
GOMES, J.




6       We note defendant’s competency was evaluated following a request from his trial counsel
pursuant to section 1368, and he was found competent to stand trial. The court-appointed
psychiatrist concluded he was of normal intelligence and although he did have some mental
health issues, the level of ignorance he claimed during the evaluation “was not believable” and
“a sham.”


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