Filed 2/28/13 P. v. Tercero CA4/3



                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE

THE PEOPLE,

     Plaintiff and Respondent,                                         G046162

         v.                                                            (Super. Ct. No. 09CF0621)

JUAN TERCERO and                                                       OPINION
PABLO JIMENEZ CORTEZ,

     Defendants and Appellants.


                   Appeal from a judgment of the Superior Court of Orange County, David A.

Thompson, Judge. Affirmed in part and reversed in part.
                   Richard De La Sota, under appointment by the Court of Appeal, for
Defendant and Appellant Juan Tercero.
                   Susan K. Shaler, under appointment by the Court of Appeal, for Defendant
and Appellant Pablo Jimenez Cortez.
                   Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant

Attorney General, Julie L. Garland, Assistant Attorney General, William M. Wood and
Heather F. Crawford, Deputy Attorneys General, for Plaintiff and Respondent.
                                          *                  *                  *
              A jury convicted Juan Tercero and Pablo Jimenez Cortez of two counts
each of kidnapping during the commission of a carjacking (counts 1 & 2; Pen. Code,
§ 209.5, subd. (a); all further undesignated section references are to this code); simple
kidnapping (counts 3 & 4; § 207, subd. (a)) as a lesser-included offense of kidnapping for
robbery; assault with a semiautomatic firearm (counts 5 & 6; § 245, subd. (b)); and one

count of second degree robbery (count 7; § 211). The jury also made true findings on
numerous personal use of a firearm (§§ 12022.53, subd. (b), 12022.5, subd. (a)) and
infliction of great bodily injury (§ 12022.7, subd. (a)) enhancement allegations against

Tercero.
              On appeal, defendants challenge the sufficiency of the evidence to support
the jury’s conclusion they kidnapped their two teenage victims, Sarah T. and Lacy H.,

during the commission of a carjacking. Cortez also argues the trial court failed to instruct
the jury on the specific intent necessary for aiding and abetting a kidnapping in counts 3
and 4. But the Attorney General concedes, and we agree, defendants’ convictions on
these counts must be reversed because simple kidnapping is a lesser-included offense of
kidnapping during the commission of a carjacking charged in counts 1 and 2, rendering
Cortez’s instructional challenge moot. Defendants raise other instructional challenges

that are without merit, as we explain. Consequently, we reverse defendants’ convictions
on counts 3 and 4, and affirm the judgment in all other respects.
                                              I

                   FACTUAL AND PROCEDURAL BACKGROUND
              In the early morning hours of March 8, 2009, Tercero attended a party with
a friend, Rene Garcia. After leaving the party, Tercero met Cortez and Justo Garcia at an

Orange County nightclub. Tercero drank heavily at the club, and when the club closed,



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the group visited the home of Rene Garcia’s girlfriend, who provided tequila for the men.
The four men decided to visit Taqueria Mexico, a restaurant behind Tercero’s apartment
near the intersection of Katella and Cambridge in Orange.
              Sometime after 3:30 a.m., Tercero, Cortez, and their companions noticed
Sarah and Lacy, both 19, at Taqueria Mexico. The restaurant was busy, and the women

waited in line for several minutes before ordering and sitting down at a table to eat their
food. Sarah and Lacy, regular customers at the restaurant, were friendly with the cashier
and other customers.

              Tercero, Cortez, and their friends had entered Taqueria Mexico shortly after
Lacy and Sarah and,after ordering his food, Tercero sat at a table next to Lacy and
attempted to start a conversation with her, but she ignored him. When Sarah and Lacy

left the restaurant, Tercero, Cortez, and their companions followed the women. Sarah
and Lacy entered Sarah’s red Chevrolet Cobalt and began driving home via the
55 Freeway; they exited the freeway at Irvine Boulevard and stopped at the traffic signal
at the intersection of Irvine Boulevard and Newport Avenue. Having followed the
women in a black Toyota Yaris, Tercero, Cortez, and their companion rear-ended Sarah’s
car. It was not a hard impact, but Sarah hesitated and then pulled into the parking lot of

an adjacent Ralph’s grocery store, and the Yaris followed.
              Tercero pulled his vehicle into a parking space near Sarah’s car, then exited
his car and approached the driver’s side of the Cobalt, while Cortez exited the Yaris and

approached Lacy’s side of the car. During a brief conversation with the women, Tercero
apologized in a manner Lacy felt was “fake,” and then displayed a gun, brandished it at
the women, and ordered them out of their car. Sarah and Lacy panicked; Tercero opened

Sarah’s door and as she began trying to speed away, he forced her seat forward and



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entered the backseat of the two-door Cobalt. Cortez ran back to the Yaris, and the car
sped around Sarah’s Cobalt as it left the parking lot. Tercero put his gun to Sarah’s head
and ordered her to follow the Yaris. Yanking their hair and pointing his gun at them,
Tercero threatened to kill both women. Lacy urged Sarah to disregard Tercero’s
commands because she did not think the men intended to steal anything from them once

they arrived wherever they were going; instead, she feared much worse.
              Sarah initially complied with Tercero’s orders for a few blocks before
abruptly turning into a church parking lot near Red Hill and Irvine Boulevard. The Yaris

continued on at first, but quickly returned to the church parking lot. When Sarah parked
the car, Tercero tried to pull the keys out of the ignition. Cortez and two of the other men
approached the Cobalt as Tercero pushed his way out of the backseat. Tercero kept his

gun aimed at Sarah’s head while the other three men attempted to drag Sarah and Lacy
from the car. The men repeatedly punched, kicked, and choked Sarah. Sarah’s hand was
cut as she fought to protect her car keys. Tercero struck Sarah with the butt of his gun,
knocking her unconscious.
              Meanwhile, Cortez succeeded in pulling Lacy out of the car and dragged
her toward the Yaris, but Lacy broke free and ran back to the Cobalt, quickly reentering

the car on the passenger side. Cortez returned to the Cobalt and punched Lacy in the face
before Tercero knocked her unconscious by hitting her with his gun. The four men
returned to the Yaris and exited the church parking lot.

              Responding to a 911 call made by a witness to the initial altercation in the
Ralph’s parking lot, a Tustin police officer spotted the Yaris leaving the church parking
lot with its lights off. The officer engaged his patrol vehicle’s sirens and lights and

pursued the Yaris, which ran several red lights at speeds up to 100 miles per hour. After



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approximately six miles, the Yaris reduced its speed and one of the occupants jumped
out. Moments later, another occupant jumped out. Abandoning his pursuit of the Yaris,
the officer returned to where he had seen the passengers jump out of the car and found a
Santa Ana police officer had apprehended Tercero. A search of Tercero revealed
Chevrolet car keys and a cell phone.

              Back in the church parking lot, Sarah regained consciousness in time to see
the police pursuing the Yaris. Lacy also came to, and the women flagged down a passing
vehicle and used the driver’s cell phone to call 911. When the police arrived, Sarah

pointed out a gun on the ground in the church parking lot. Asked about the gun after he
was apprehended, Tercero admitted throwing it out of the car window in the church
parking lot when he saw the police officer begin his pursuit. Police later learned of

Cortez’s involvement and arrested him.
              After the jury convicted Tercero and Cortez as noted above, the trial court
sentenced Tercero to life in prison with the possibility of parole for kidnapping during the
commission of a carjacking (counts 1 and 2), plus 50 years on the remaining counts and
allegations, including gun use enhancements, and sentenced Cortez to life in prison with
the possibility of parole on counts 1 and 2, plus eight years on the remaining counts.

Defendants now appeal.
                                             II
                                       DISCUSSION

A.     Simple Kidnapping and Kidnapping in Committing Carjacking
       1.     Substantial Evidence Supports the Kidnapping and Carjacking Convictions
              Defendants challenge the sufficiency of the evidence to support their

convictions for kidnapping their victims in the course of a carjacking (counts 1 & 2) and



                                             5
simple kidnapping (counts 3 & 4). On appeal, the reviewing court must view the
evidence in the light most favorable to the judgment. (People v. Elliot (2005) 37 Cal.4th
453, 466.) It is the trier of fact’s exclusive province to assess witness credibility and to
weigh and resolve conflicts in the evidence. (People v. Sanchez (2003) 113 Cal.App.4th
325, 330 (Sanchez ).) We therefore presume the existence of every fact reasonably

inferred from the evidence in support of the judgment. (People v. Crittenden (1994)
9 Cal.4th 83, 139.) The test is whether substantial evidence supports the conclusion of
the trier of fact, not whether the appellate panel is persuaded the defendant is guilty

beyond a reasonable doubt. (Ibid.; People v. Johnson (1980) 26 Cal.3d 557, 576.) In
other words, reversal is not warranted even though the circumstances could be reconciled
with a contrary finding. (People v. Bean (1988) 46 Cal.3d 919, 932-933.) Thus, a

defendant attacking the sufficiency of the evidence “bears an enormous burden.”
(Sanchez, at p. 330.)
              Defendants contend they did not commit kidnapping or kidnapping in the
course of a carjacking because Tercero “did not force the victims to move from one
location to another,” and they did not commit carjacking because “neither [Tercero] nor
his companions ever gained control of the victim’s vehicle.” We are not persuaded.

              Kidnapping, and thus the greater offense of kidnapping during the
commission of a carjacking (§ 209.5), requires that the perpetrator move the victim in a
substantial manner by force or fear, without the person’s consent. (People v. Arias

(2011) 193 Cal.App.4th 1428, 1434-1435; see § 207, subd. (a) [“forcibly . . . carr[ying]”
away victim against his or her will constitutes kidnapping].) Nothing “limits the
asportation element solely to actual distance” (People v. Martinez (1999) 20 Cal.4th 225,

236); rather, “‘the “scope and nature” of the movement . . . , and any increased risk of



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harm’” are also relevant. (People v. Bell (2009) 179 Cal.App.4th 428, 436.) Thus, the
jury’s consideration may include “such factors as whether that movement increased the
risk of harm above that which existed prior to the asportation, decreased the likelihood of
detection, [or] increased both the danger inherent in a victim’s foreseeable attempts to
escape and the attacker’s enhanced opportunity to commit additional crimes. [Fn.

omitted.]” (Martinez, at p. 237; see People v. Shadden (2001) 93 Cal.App.4th 164, 169
[movement of victim nine feet sufficient to support asportation element].)
              Defendants contend they did not compel the victims’ movement because

Sarah made the initial decision to drive away while trying to escape Tercero, and she
similarly ended their asportation by pulling into the church parking lot, ignoring
Tercero’s contrary directions to follow Cortez’s car. The jury, however, reasonably

could conclude a kidnapping occurred as soon as Tercero entered the car, pointed his gun
at Sarah and Lacy, and directed Sarah to “drive” and to “continue” to follow Cortez’s car.
Indeed, the testimony supported the conclusion Sarah did not succeed in putting her car
in gear before Tercero forced his way into the vehicle, and the women explained their
fear and panic at his intrusion.
              Accordingly, the jury reasonably could conclude Sarah complied with

Tercero’s instructions not of her own volition but because she was “scared,” and although
she only traveled a few blocks before attempting to escape, the jury reasonably could
conclude this compelled movement in a vehicle constituted kidnapping. It substantially

increased the risk of harm to the victims, posed the danger of a decreased chance of
detection and enhanced opportunities for their attackers to commit additional crimes, and
their foreseeable escape attempts became more dangerous because they were moving at

high rates of speed in a vehicle, and actually resulted in substantial harm when



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defendants pistol whipped them in the parking lot, knocking both unconscious. In
particular, Sarah described how she planned a desperate escape and “at that point” made
the decision “to stick up for myself,” ignore Tercero’s commands, and turn into the
church parking lot. ~(RT 123)~ The jury reasonably could infer from this testimony that
until “that point” Sarah piloted her vehicle as Tercero commanded at gunpoint and not by

choice. Ample evidence supports the kidnapping charges (counts 3 & 4) and the
kidnapping element of kidnapping during the commission of a carjacking (counts 1 & 2).
              Substantial evidence also supported the carjacking element of counts 1

and 2. Kidnapping during the commission of a carjacking requires a completed
carjacking. (People v. Contreras (1997) ) 55 Cal.App.4th 760, 765.) “‘Carjacking’ is the
felonious taking of a motor vehicle in the possession of another . . . against his or her will

and with the intent to either permanently or temporarily deprive the person in possession
of the motor vehicle of his or her possession, accomplished by means of force or fear.”
(§ 215, subd. (a).) “[A] felonious taking can occur under the carjacking statute when the
victim remains in the car.” (People v. Duran (2001) 88 Cal.App.4th 1371, 1375; see also
People v. Lopez (2003) 31 Cal.4th 1051, 1060-1062 [noting Legislature was “specifically
concerned with the ‘considerable increase in the number of persons who have been

abducted’ in their vehicles,” italics added].) Accordingly, the jury reasonably could
conclude defendants accomplished the necessary temporary taking of the victims’ car
when Tercero gained control over the vehicle by directing Sarah at gunpoint where to

drive. Defendants’ substantial evidence challenge is without merit.

       2.     Conceded Reversal on the Lesser-Included Simple Kidnapping Offenses
              The Attorney General concedes defendants’ convictions on counts 3 and 4

for simple kidnapping of Sarah and Lacy must be reversed as lesser-included offenses of



                                              8
counts 1 and 2, kidnapping during the commission of a carjacking. Both sets of offenses
were based on the same forcible movement of the victims. The latter offenses include the
former because they cannot be committed without also committing kidnapping. (People
v. Medina (2007) 41 Cal.4th 685, 701-702.) The trial court stayed counts 3 and 4 under
section 654, but an individual may not be convicted of both the greater crime and a

lesser-included offense. (People v. Ortiz (2002) 101 Cal.App.4th 410, 415.) “If the
evidence supports the verdict as to a greater offense, the conviction on that offense is
controlling, and the conviction of the lesser offense must be reversed.” (People v. Moran

(1970) 1 Cal.3d 755, 763.) Consequently, we will direct the trial court to reverse
defendants’ convictions on counts 3 and 4.

       3.     Moot Instructional Claim Regarding Counts 3 and 4

              Because his convictions on counts 3 and 4 must be reversed, and there is no
basis for a retrial on those counts because they involve the same underlying kidnapping
allegations upheld in counts 1 and 2, Cortez’s claim the jury was not properly instructed
on the specific intent necessary for aiding and abetting liability on counts 3 and 4 is moot.
Accordingly, we do not address the issue further.

B.     Instructional claims
       1.     No Evidence Supported an Instruction on Reasonable Belief in the
              Victims’ Consent to Kidnapping
              Cortez contends the trial court erroneously failed to instruct the jury that
guilt on the kidnapping-related charges required a finding he did not “actually and

reasonably believe” the victims “consented to the[ir] movement” when they were
allegedly kidnapped. A reasonable belief the victim consented to the physical movement
necessary for kidnapping is a complete defense to the crime. (People v. Eid (2010)



                                              9
187 Cal.App.4th 859, 869 (Eid); People v. Isitt (1976) 55 Cal.App.3d 23, 28.) The
victim’s consent, however, must be voluntary, not coerced. (People v. Davis (1995)
10 Cal.4th 463, 517; Eid, at pp. 869-870.) Cortez notes that CALCRIM No. 1215 defines
simple kidnapping and provides optional language to explain to the jury the requirement
“[t]he defendant did not actually and reasonably believe that the other person consented

to the movement.” The trial court must give the optional language only when the
evidence shows a potentially reasonable belief in consent. (People v. Greenberger
(1997) 58 Cal.App.4th 298, 375 (Greenberger).)

              Cortez acknowledges his trial counsel agreed to the trial court’s decision to
instruct the jury without reference to any good faith belief in the victims’ consent because
the court and counsel concluded there was no evidence of consent or a reasonable belief

in consent. Cortez argues the issue is not thereby forfeited, however, because the court
and counsel were wrong, and he contends his attorney rendered ineffective assistance of
counsel by failing to demand the instruction. We address the issue because if substantial
evidence supports a reasonable belief the victim consented, the trial court has a sua
sponte duty to give the instruction (Greenberger, supra, 58 Cal.App.4th at p. 375) and its
absence violates the defendant’s substantial rights (§ 1259).

              But the instruction was not necessary because the evidence supported
neither the conclusion the victims consented to their movement, nor a good faith belief in
the women’s consent. In a violent confrontation after the defendants bumped the victims’

car, Tercero entered the car with a gun and pointed it at Sarah and Lacy. Cortez argues
that because Tercero directed Sarah to follow the vehicle in which Cortez rode as a
passenger, that car was necessarily in front of Sarah’s car and therefore Cortez suggests

his car must have started moving before Sarah’s car moved. Cortez surmises from this



                                            10
sequence of events that the jury could infer Cortez returned to his car before the
encounter became hostile, and the jury therefore also could infer Cortez reasonably
believed the women consented to follow the car in which he rode. He cites the women’s
gregarious behavior at the taco stand as evidence supporting a reasonable belief they
freely consented to Tercero accompanying them after the fender bender.

              The problem with the inferences Cortez draws is that they are not supported
by any evidence. He relies instead merely on conjecture. For example, the evidence
showed that the women interacted in a friendly manner with others at the taco stand, not

with defendants. More importantly, the only evidence concerning when Cortez returned
to his car was Lacy’s testimony that he did so after the encounter became violent and
Sarah started to drive away, trying to escape Tercero. Lacy testified it was “[a]t the time

she [Sarah] started to drive” that Cortez “ran back” from beside Lacy’s window to the
other car. The evidence does not support the conclusion Cortez was unaware of the
unfolding violence. The evidence also showed Cortez’s car traveled in front of Sarah’s
car not because it departed first but, as Lacy explained, “They sped around us as we were
pulling out of the Ralph’s parking lot.” Accordingly, because no evidence supports
Cortez’s appellate claim of a reasonable belief in the women’s consent, the trial court was

not required to instruct the jury on the topic. Nor was counsel ineffective in failing to




                                             11
request an instruction that no evidence supported. Cortez’s claims are therefore without
merit.1

          2.   Instruction on Other Lesser-Included Offenses
               Defendants contend their convictions on counts 1 and 2 for kidnapping
during the commission of a carjacking must be reversed because the trial court failed to
instruct the jury on all potential lesser-included offenses. The trial court instructed the
jury on carjacking, attempted carjacking, and false imprisonment as lesser-included
offenses under counts 1 and 2. On the kidnapping for robbery charges in counts 3 and 4,
the trial court also gave the jury the option of returning verdicts on the lesser included
offenses of kidnapping, attempted kidnapping, and false imprisonment and, as noted, the
jury convicted defendants in counts 3 and 4 of the lesser offense of kidnapping.
Defendants argue the trial court should have instructed the jury on counts 1 and 2 that the
following crimes were also lesser-included offenses: attempted kidnapping during the
commission of a carjacking, kidnapping, and attempted kidnapping. As noted, the

Attorney General concedes kidnapping is a lesser-included offense of kidnapping during
the commission of a carjacking. (See Medina, supra, 41 Cal.4th at pp. 690, 694, 701.)


          1    At oral argument, Cortez’s appellate attorney suggested the evidence was
consistent with the conclusion another person from his car approached Lacy’s side of
Sarah’s vehicle, and therefore the jury could infer Cortez remained in his car ignorant of
Tercero’s forceful, nonconsensual entry into Sarah’s car, and consequently Cortez may
have reasonably believed the women followed the Yaris of their own volition and not by
force. The contention is forfeited because it was not raised in Cortez’s brief and, in any
event, consists of conjecture and therefore does not require the instruction Cortez now
says was necessary. Specifically, the evidence showed the violent encounter in the
Ralph’s parking lot prompted a disinterested observer — situated much further away than
Cortez’s car — to call 911, and the fact Cortez’s car sped from behind and around
Sarah’s car is similarly inconsistent with the notion Cortez was unaware of what was
happening in Sarah’s car. No evidence supported that conclusion, and therefore the trial
court was not required to give the instruction on reasonable belief in consent.

                                              12
              We review claims of instructional error under the Watson standard: the
appellant must demonstrate it is reasonably probable he or she would have obtained a
more favorable outcome absent the claimed error. (People v. Watson (1956) 46 Cal.2d
818, 836.) Because the jury resolved the issues of kidnapping and attempted kidnapping
under other properly given instructions, any error in failing to give the omitted

instructions under other counts was harmless. (People v. Rivera (1984) 157 Cal.App.3d
736, 743.) Specifically, as lesser-included offenses under counts 3 and 4, the trial court
properly instructed the jury concerning the elements of kidnapping and attempted

kidnapping, and the jury determined defendants kidnapped their victims and rejected their
defense they only attempted to kidnap them. Consequently, given the evidence
underlying counts 1 through 4 was identical, there is no reason to suppose defendants

would have fared better on counts 1 and 2 if the jury had been instructed on attempted
kidnapping and attempted kidnapping during the commission of a carjacking. Simply
put, the jury rejected the notion defendants’ acts only amounted to attempted, rather than
completed, kidnapping.
              The jury was instructed on attempted carjacking as a lesser-included
offense in counts 1 and 2, but rejected that conclusion. Having rejected the possibility

defendants’ acts constituted an attempted carjacking or attempted kidnapping, we cannot
say it is reasonably likely including any of the instructions defendants now claim were
necessary would have made a difference. Defendants rely on the fact that including

kidnapping as a lesser offense of kidnapping for robbery did make a difference on
counts 3 and 4 because the jury convicted them only of kidnapping and not kidnapping
for robbery. But unlike counts 3 and 4, counts 1 and 2 did not turn on whether the

perpetrator committed kidnapping for the purpose of committing an additional offense



                                             13
such as robbery. Rather, kidnapping during the commission of a carjacking, as the name
implies, involves simultaneous commission of two offenses, kidnapping and carjacking
— not the commission of one to facilitate the other.
              Consequently, once the jury rejected on the properly given instructions
defendants’ claims they only attempted a carjacking, but did not gain control of the

vehicle, and only attempted to kidnap the victims, but did not carry them away by force
apart from Sarah’s independent decisions, there was no reasonable probability of a
different verdict than the one the jury reached. Simply put, the jury’s conclusions on

properly given instructions eliminated the possibility the jury would have convicted
defendants of only attempting to kidnap the women, only attempting to carjack them, or
only attempting to carjack them and not kidnap them.

                                            III
                                     DISPOSITION
              Defendants’ convictions in counts 3 and 4 for simple kidnapping are
reversed. The judgment is affirmed in all other respects.



                                                  ARONSON, J.

WE CONCUR:



MOORE, ACTING P. J.



IKOLA, J.




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