Filed 9/9/16 P. v. Harrelson CA4/1
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D068969

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. SCN325418)

JOHN ANTHONY HARRELSON,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Diego County, Robert J.

Kearney, Judge. Affirmed in part, reversed in part.



         Patricia J. Ulibarri, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Christine

Levingston Bergman, Deputy Attorneys General, for Plaintiff and Respondent.
          A jury convicted defendant of kidnapping and carjacking after he drove away in a

car in which a 13-year-old girl was sitting in the backseat. Defendant let the victim out of

the car about 242 feet from where he took it. On appeal, defendant challenges the

sufficiency of the evidence supporting the jury's finding on the asportation element of

kidnapping. He also contends the trial court erred by not instructing the jury sua sponte

(1) to consider whether his movement of the victim was merely incidental to his taking of

the car so as to defeat the asportation element, and (2) regarding false imprisonment as a

lesser included offense of kidnapping. Alternatively, defendant contends his counsel's

failure to request jury instructions on these points constituted constitutionally inadequate

representation.

          We conclude substantial evidence supports the jury's finding regarding

asportation. However, we also conclude the trial court erred prejudicially by not

instructing the jury to consider whether defendant's movement of the victim was merely

incidental to his taking of the car. We reverse the judgment on the kidnapping count on

this basis, and need not reach defendant's remaining arguments. In all other respects, we

affirm.

                     FACTUAL AND PROCEDURAL BACKGROUND

                                       Prosecution Case

          On July 27, 2013, at about 7:40 a.m., Gilbert F. drove his son and 13-year-old

daughter (Gretchen) to a bagel shop in a shopping center in Oceanside. Gilbert and his

son got out of the car and went into the bagel shop, while Gretchen stayed in the backseat



                                               2
listening to music and using a social media application on her cell phone. Gilbert took

the key fob for his car's keyless ignition with him, but left the engine running.

       About one minute later, defendant opened the driver's door of the car and got in.

Defendant looked over his shoulder to back out, and saw Gretchen. She asked defendant

what he was doing, to which he responded, "I'm taking this car." Gretchen said, "You

can't take this car," but defendant insisted, "I'm taking this car." Defendant backed out of

the parking space and began driving through the parking lot toward an intersection that

leads to a freeway on-ramp.

       Gretchen feared for her safety. As defendant drove through the parking lot at a

speed "slightly less than racing," Gretchen partially opened the car door in contemplation

of escaping. When the car approached the intersection that leads to the on-ramp,

defendant stopped abruptly and said, "Get out if you're going to get out." Gretchen got

out of the car without her shoes on, saw defendant drive off, then walked barefoot back to

the bagel shop and told her father what had just happened. The ordeal lasted "[a]bout a

minute and a half to two minutes," and Gretchen traveled about 242 feet in the car with

defendant.

       About one week later, a patrol officer located Gilbert's car in a residential area less

than one mile from the bagel shop. The battery was missing, and there was minor

damage to the car's exterior. Defendant's DNA was found on the car's gearshift, and

Gretchen identified defendant in a photographic lineup.




                                              3
                                       Defense Case

        Defendant testified in his own defense. He denied taking the car or Gretchen. He

claimed his only contact with the car occurred after he observed it abandoned in the

residential area. He admitted he stole the battery from it after the battery in his own car

died.

                         Information, Jury Verdict, and Sentencing

        Defendant was charged by amended information with kidnapping a victim under

14 years of age (Pen. Code,1 §§ 207, subd. (a), 208, subd. (b)), and carjacking (§ 215,

subd. (a)). A jury convicted defendant on both counts.

        Defendant admitted one felony strike prior conviction allegation, one prior serious

felony conviction allegation, two prison prior conviction allegations, and one out-on-bail

enhancement allegation. The trial court sentenced defendant to 21 years.

                                       DISCUSSION

                      I. Relevant Principles Regarding Kidnapping

        "Generally, to prove the crime of kidnapping, the prosecution must prove three

elements: (1) a person was unlawfully moved by the use of physical force or fear; (2) the

movement was without the person's consent; and (3) the movement of the person was for

a substantial distance." (People v. Jones (2003) 108 Cal.App.4th 455, 462 (Jones);




1       Undesignated statutory references are to the Penal Code.
                                              4
§ 207, subd. (a).)2 This last element—movement for a substantial distance—is known as

" 'asportation.' " (People v. Bell (2009) 179 Cal.App.4th 428, 435 (Bell).)

       Historically, "the 'actual distance' the victim was moved was the sole factor for

determining whether the evidence showed asportation for purposes of simple

kidnapping." (Bell, supra, 179 Cal.App.4th at p. 436; see People v. Stanworth (1974) 11

Cal.3d 588, 601, 603; People v. Caudillo (1978) 21 Cal.3d 562, 572, 574; People v.

Martinez (1999) 20 Cal.4th 225, 234 (Martinez).) However, in Martinez, a case

involving the simple kidnapping of a victim under the age of 14, the California Supreme

Court clarified that in determining whether movement of the victim is " ' "substantial in

character," ' " the trier of fact is not confined to considering only the actual distance

moved, but rather, "should consider the totality of the circumstances." (Martinez, at

p. 237.) "Thus, in a case where the evidence permitted, the jury might properly consider

not only the actual distance the victim is moved, but also such factors as whether that

movement increased the risk of harm above that which existed prior to the asportation,

decreased the likelihood of detection, and increased both the danger inherent in a victim's

foreseeable attempts to escape and the attacker's enhanced opportunity to commit

additional crimes." (Ibid.) The Martinez court emphasized, however, "that contextual




2      Section 207, subdivision (a) defines kidnapping in relevant part 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."
Additionally, section 208, subdivision (b) prescribes the punishment "[i]f the person
kidnapped is under 14 years of age at the time of the commission of the crime."
                                               5
factors, whether singly or in combination, will not suffice to establish asportation if the

movement is only a very short distance." (Ibid.)

       The Martinez court added: "In addition, in a case involving an associated crime,

the jury should be instructed to consider whether the distance a victim was moved was

incidental to the commission of that crime in determining the movement's substantiality."

(Martinez, supra, 20 Cal.4th at p. 237; see In re Earley (1975) 14 Cal.3d 122, 129, fn. 9

["When an 'associated crime' is involved, there can be no violation of section 207 unless

the asportation is more than incidental to the commission of that crime."].) An

" 'associated crime' " is "any criminal act the defendant intends to commit where, in the

course of its commission, the defendant also moves a victim by force or fear against his

or her will. It is not more complicated than that." (Bell, supra, 179 Cal.App.4th at

pp. 438-439.)

                                 II. Substantial Evidence

       Defendant contends there was insufficient evidence to support a finding of

asportation or that the kidnapping was more than incidental to his taking of the car. We

disagree.

                                  A. Standard of Review

       " 'The standard of appellate review for determining the sufficiency of the evidence

is settled. On appeal, " 'we review the entire record in the light most favorable to the

judgment to determine whether it contains substantial evidence—that is, evidence that is

reasonable, credible, and of solid value—from which a reasonable trier of fact could find

the defendant guilty beyond a reasonable doubt.' [Citation.]" [Citation.] In conducting

                                              6
such a review, we " 'presume[] in support of the judgment the existence of every fact the

trier could reasonably deduce from the evidence.' [Citation.]" [Citations.] "Conflicts

and even testimony which is subject to justifiable suspicion do not justify the reversal of

a judgment, for it is the exclusive province of the trial judge or jury to determine the

credibility of a witness and the truth or falsity of the facts upon which a determination

depends. [Citation.] We resolve neither credibility issues nor evidentiary conflicts; we

look for substantial evidence." ' " (People v. Harris (2013) 57 Cal.4th 804, 849.)

       "If our review of the record shows that there is substantial evidence to support the

judgment, we must affirm, even if there is also substantial evidence to support a contrary

conclusion and the jury might have reached a different result if it had believed other

evidence." (People v. Riley (2015) 240 Cal.App.4th 1152, 1165-1166 (Riley).)

                                      B. Asportation

       Considering " 'the totality of the circumstances' " (Martinez, supra, 20 Cal.4th at

p. 237), we conclude substantial evidence supports the jury's finding of asportation.

Although section 207 "does not speak in terms of a movement of any specific or exact

distance" (Martinez, at p. 236), the jury could reasonably conclude the actual distance

defendant moved Gretchen—242 feet—is substantial, particularly in light of the

contextual factors identified in Martinez. (See, e.g., People v. Stender (1975) 47

Cal.App.3d 413, 423 [finding movement of 200 feet substantial under pre-Martinez

standard, particularly where the movement "accomplished the purpose of removing the

victim from the ready help of her mother"].) The jury could reasonably infer that by

driving Gretchen away from the bagel shop—and her father and brother—and toward the

                                              7
freeway on-ramp, defendant decreased his risk of detection, increased the risk of harm to

Gretchen, and enhanced his opportunities to commit additional crimes. Further,

defendant's act of driving through the parking lot at a speed "slightly less than racing"

increased the danger inherent in Gretchen's foreseeable attempts to escape. Indeed,

Gretchen so feared for her safety that she partially opened the car door as defendant sped

through the parking lot. Thus, substantial evidence supports the jury's finding of

asportation.

                     C. Movement Incidental to an Associated Crime

       Substantial evidence also supports the jury's finding that defendant's movement of

Gretchen was more than incidental to his taking of her father's car. Although the

evidence may be susceptible to defendant's preferred interpretation—an issue we address

below in the context of instructional error—the substantial evidence review standard asks

only whether substantial evidence supports the fact finder's determination. (Riley, supra,

240 Cal.App.4th at pp. 1165-1166.) Here, it does.

       Gretchen testified defendant saw her when he looked over his shoulder to back the

car out. The jury could reasonably have inferred that, at that point, defendant could have

set Gretchen free and still achieved his goal of taking the car. The fact defendant did not

do so supports the reasonable inference that he detained and moved Gretchen for some

other purpose not incidental to taking the car.

       We are not persuaded by defendant's citation to cases that found insufficient

evidence of asportation where the victim's movement was merely incidental to associated

crimes. (See Cotton v. Superior Court (1961) 56 Cal.2d 459, 463-464 [movement

                                              8
incidental where union picketers moved migrant workers 15 feet during riot]; People v.

Daniels (1969) 71 Cal.2d 1119, 1126 [movement incidental where defendants, "in the

course of robbing and raping three women in their own homes, forced them to move

about their rooms for distances of 18 feet, 5 or 6 feet, and 30 feet respectively"].) The

cases were decided before Martinez clarified the factors relevant to the asportation

analysis, and involve different associated crimes and substantially shorter distances than

are at issue here. (See People v. Thomas (1992) 2 Cal.4th 489, 516 ["When we decide

issues of sufficiency of evidence, comparison with other cases is of limited utility, since

each case necessarily depends on its own facts."].)

                                  III. Instructional Error

       As we alluded to above, although the record may also support a finding that

defendant's movement of Gretchen was merely incidental to his taking of the car, the trial

court did not instruct the jury it could consider this as a factor in determining the

asportation element. Defendant contends this was prejudicial error. We agree.

                                      A. Background

       During the conference on jury instructions, the trial court stated it intended to

instruct the jury regarding kidnapping with the version of CALCRIM No. 1201 submitted

by the prosecution. Both counsel agreed.




                                              9
       A moment later, the trial court noted that CALCRIM No. 1201 requires that "[t]he

defendant move[] the child with an illegal intent or for an illegal purpose."3 The court

added, "I believe that we . . . have to define for the jurors what the illegal intent or

[illegal] purpose is and then define that for them." After conferring with counsel, the

court indicated it would modify CALCRIM No. 1201 to reflect that the illegal intent or

purpose was unlawful vehicle-taking in violation of Vehicle Code section 10851.

Defense counsel did not object to the modified version or request any additional

modifications.

       Accordingly, the trial court instructed the jury regarding kidnapping with the

following modified version of CALCRIM No. 1201:

              "The defendant is charged in Count 1 with kidnapping a child in
           violation of Penal Code section 207. [¶] To prove that the
           defendant is guilty of this crime, the People must prove that:

              "1. The defendant used physical force to take and carry away an
           unresisting child;

              "2. The defendant moved the child a substantial distance;

               "3. The defendant moved the child with an illegal intent or for an
           illegal purpose (see Unlawful Taking or Driving of Vehicle,
           instruction [CALCRIM No.] 1820);[4]

3       "[T]his element was created by our Supreme Court to ensure that an innocent
carrying away of a very young victim would not result in a kidnapping conviction."
(Jones, supra, 108 Cal.App.4th at p. 466; see People v. Oliver (1961) 55 Cal.2d 761, 765
[innocent carrying away may arise from "find[ing] a young child alone on the highway,"
"at the edge of a body of water in which he might drown," or "at the edge of a precipice
over which he might fall"].) This element is now codified in section 207, subdivision (e).

4       The court instructed the jury regarding vehicle taking with CALCRIM No. 1820
as follows: "To prove that defendant is guilty of this crime, the People must prove that:
                                              10
              "AND

            "4. The child was under 14 years of age at the time of the
          movement.

              "Substantial distance means more than a slight or trivial distance.
          In deciding whether the distance was substantial, consider all the
          circumstances relating to the movement. Thus, in addition to
          considering the actual distance moved, you may also consider other
          factors such as whether the movement increased the risk of physical
          or psychological harm, increased the danger of a foreseeable escape
          attempt, gave the attacker a greater opportunity to commit additional
          crimes, or decreased the likelihood of detection. . . ."

                                  B. Standard of Review

       "A trial court bears a sua sponte duty to instruct the jury on the essential elements

of an offense (People v. Flood (1998) 18 Cal.4th 470, 504 . . .), and ' "on the general

principles of law governing the case," ' i.e., ' " 'those principles of law commonly or

closely and openly connected with the facts of the case before the court' " ' (People v.

Michaels (2002) 28 Cal.4th 486, 529-530 . . .). A 'criminal defendant is entitled to

adequate instructions on the defense theory of the case' if supported by the law and

evidence. (Conde v. Henry (9th Cir. 1999) 198 F.3d 734, 739.)" (Bell, supra, 179

Cal.App.4th at pp. 434-435.)

       " 'An appellate court reviews the wording of a jury instruction de novo' (People v.

O'Dell (2007) 153 Cal.App.4th 1569, 1574 . . .), and determines whether 'the instructions




[¶] 1. The defendant took or drove someone else's vehicle without the owner's consent;
[¶] AND [¶] 2. When the defendant did so, he intended to deprive the owner of
possession or ownership of the vehicle for any period of time. [¶] A taking requires that
the vehicle be moved for any distance, no matter how small. [¶] A vehicle includes a
passenger vehicle."
                                             11
are complete and correctly state the law' (People v. Andrade (2000) 85 Cal.App.4th 579,

585 . . .)." (Bell, supra, 179 Cal.App.4th at p. 435.)

                                        C. Analysis

       Preliminarily, we decline the Attorney General's invitation to find defendant

forfeited this challenge by acquiescing in the proposed instruction and failing to request

the instruction he now contends was required. We will address the instructional error

because it affects defendant's substantial rights (People v. Flood, supra, 18 Cal.4th at

p. 482, fn. 7; § 1259) and to forestall defendant's claim of constitutionally inadequate

representation (People v. Mattson (1990) 50 Cal.3d 826, 854).

       On the merits, Bell, supra, 179 Cal.App.4th 428 is instructive. In that case, the

defendant fled from police in his car while his estranged wife was an unwilling

passenger. (Id. at pp. 431-432.) The defendant let his wife out of the car at an

intersection about 210 feet away, then drove recklessly while unsuccessfully attempting

to evade the police. (Id. at p. 433.) A jury convicted the defendant of evading police

while driving recklessly, simple kidnapping, and other offenses. (Ibid.) On appeal, the

defendant argued the trial court erred by omitting from the pattern jury instruction certain

bracketed language that "would have prohibited the jury from convicting defendant of

simple kidnapping if his movement of [the victim] was merely incidental to his reckless

flight from the police." (Id. at p. 434.)5 The Court of Appeal agreed.



5     The bracketed language, from a prior version of CALCRIM No. 1215, read:
"[The defendant is also charged in Count ____ with ____ <insert crime>. In order for the
defendant to be guilty of kidnapping, the other person must be moved or made to move a
                                             12
       The Bell court noted the California Supreme Court's admonition in Martinez that

" 'in a case involving an associated crime, the jury should be instructed to consider

whether the distance a victim was moved was incidental to the commission of that crime

in determining the movement's substantiality.' " (Bell, supra, 179 Cal.App.4th at p. 437,

quoting Martinez, supra, 20 Cal.4th at p. 237.) The Bell court defined an " 'associated

crime' " as "any criminal act the defendant intends to commit where, in the course of its

commission, the defendant also moves a victim by force or fear against his or her will."

(Bell, at pp. 438-439.) The Bell court concluded the defendant's reckless evasion was an

associated crime: "The evidence supported a finding that defendant intended to evade the

police and did so recklessly. And from the evidence, the jury could have found that in

the course of the evasion, [the victim] was moved by force or fear against her will.

Under these facts, the court should have instructed the jury that, in determining whether

defendant's movement of [the victim] was substantial, they could consider whether the

movement was merely incidental to the crime of evasion (as one factor among others)."

(Id. at p. 439.) Thus, the Bell court concluded the trial court had a sua sponte duty to

instruct the jury regarding the associated-crime factor of asportation. (Ibid.)

       The Bell court found the trial court's failure to instruct in this regard rendered the

instruction "incomplete" and thus "violated defendant's right to a correct jury instruction

on all the elements of the offense of simple kidnapping." (Bell, supra, 179 Cal.App.4th

at p. 439.) The court further found this error was prejudicial under the applicable


distance beyond that merely incidental to the commission of ____ <insert crime>.]"
(Bell, supra, 179 Cal.App.4th at p. 434.)
                                              13
Chapman6 standard because "no other jury instructions, jury findings or counsel's

arguments show[ed] the jurors knew they had to acquit defendant of kidnapping if they

found his movement of [the victim] was not substantial, taking into account (as one factor

among others) whether his movement of [the victim] was merely incidental to the

evasion." (Bell, at pp. 439-440; see People v. Delacerda (2015) 236 Cal.App.4th 282,

293-294 [prejudicial error under Chapman for failing to instruct jury regarding domestic

violence battery as associated crime to simple kidnapping].)

       Likewise here, the trial court erred prejudicially by not instructing on the

associated-crime factor. We are unpersuaded by the Attorney General's argument that

carjacking was not an associated crime. To the contrary, the evidence shows defendant

intended to carjack Gretchen, and that during the carjacking he moved her by force or

fear against her will. "It is not more complicated than that." (Bell, supra, 179

Cal.App.4th at p. 439.) The trial court should have instructed the jury regarding the

associated-crime factor. (See Martinez, supra, 20 Cal.4th at p. 237; Bell, at p. 439.)

       The parties dispute the applicable standard in assessing prejudice: defendant

argues Chapman's harmless-beyond-a-reasonable-doubt standard applies, while the

Attorney General argues the Watson7 reasonably-probable standard applies. We need not




6      Chapman v. State of California (1967) 386 U.S. 18, 24.

7     People v. Watson (1956) 46 Cal.2d 818, 836 (reversal required only if "it is
reasonably probable that a result more favorable to the [defendant] would have been
reached in the absence of error").
                                             14
decide which standard governs, because we would find prejudice even under the less

stringent Watson standard.

       First, the jury instructions, taken as a whole, did nothing to ameliorate the

prejudice. Although, as the Attorney General argues, CALCRIM No. 1201 instructed the

jury to "consider all the circumstances relating to the movement" (italics added), the

instruction made no reference to the requirement that the jury consider whether such

movement was merely incidental to defendant's taking of the car. In addition, the fact the

trial court modified CALCRIM No. 1201 to reference Vehicle Code section 10851 as the

basis for defendant's illegal intent or purpose suggests both that (1) the trial court may

have considered defendant's movement of Gretchen to be incidental to an associated

crime, and (2) jurors may have received the mistaken impression they could convict

defendant of kidnapping so long as he intended to unlawfully take the car, regardless of

whether his movement of Gretchen was incidental to that taking.

       Second, the prosecutor's closing argument further supports a finding of prejudice.

As a factual matter, the prosecutor conceded "it's extremely likely the person that got into

this car didn't know Gretchen was there." This strongly suggests the jury could

reasonably have found defendant's movement of Gretchen was merely incidental to his

taking of the car. In addition, although the prosecutor attempted to inform the jury it

could consider whether the movement was incidental to the carjacking, the prosecutor

misspoke, stating: "Was the distance the other person was moved beyond that merely

incidental to the commission of kidnapping?" (Italics added.) This did not convey to

jurors that they could consider whether defendant's movement of Gretchen was merely

                                             15
incidental to the carjacking. On this record, it is reasonably probable defendant would

have obtained a more favorable result had the jury been properly instructed.

       In sum, the record here required that the trial court instruct the jury to consider (as

one of several factors) whether the defendant's movement of Gretchen was merely

incidental to an associated crime. The court's failure to do so was prejudicial, and no

other jury instruction, jury finding, or argument of counsel ameliorated the error.

                                       DISPOSITION

       The judgment is reversed as to the simple kidnapping conviction. The balance of

the judgment, not having been challenged on appeal, is affirmed.



                                                                                 HALLER, J.

WE CONCUR:



         HUFFMAN, Acting P. J.



                    O'ROURKE, J.




                                              16
