Filed 9/20/16 P. v. Velasquez CA1/4
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                 DIVISION FOUR


THE PEOPLE,
         Plaintiff and Respondent,
                                                                     A142077
v.
DAVID A. VELASQUEZ,                                                  (San Mateo County
                                                                     Super. Ct. No. SC75637)
         Defendant and Appellant.




         A jury found appellant David A. Velasquez guilty of kidnapping with intent to
rape (aggravated kidnapping), assault with intent to rape, false imprisonment with force
or violence, and making criminal threats, based on an incident in which he attacked his
teacher, Ms. Renee Doe, in a school parking garage.
         Appellant appeals the aggravated kidnapping conviction, arguing that (1) there
was insufficient evidence to support the asportation element of the offense, (2) the trial
court failed to instruct the jury sua sponte on false imprisonment as a lesser included
offense, and (3) the trial court failed to clarify for the jury, sua sponte, the difference
between asportation for purposes of aggravated kidnapping ( Pen. Code,1 § 209) and
asportation for purposes of the lesser included offense of simple kidnapping (§ 207). He
also contends, in the alternative, that the false imprisonment conviction must be stricken
as redundant to the aggravated kidnapping conviction.

         1
             All further unspecified statutory references are to the Penal Code.

                                                             1
       We reverse the false imprisonment conviction but otherwise affirm.
                                 I.      BACKGROUND
       In January 2012, Ms. Doe was a special education teacher at a charter high school
in San Mateo County. Appellant had been one of her students for several years. One
afternoon following class, Ms. Doe stayed late to finish some work and was in her office
at around 5:15 p.m. Appellant appeared unexpectedly, which was very unusual because
the school closes at around 5:00 p.m. Ms. Doe asked him why he was in the building,
and appellant replied that he was there to give a ride to another student, but when asked
who that student was, he did not know the name. This explanation did not make sense to
Ms. Doe, but she did not press him on it.
       Around 5:45 p.m., Ms. Doe left for the day and headed down to the building’s
garage where her car was parked. As she walked into the garage and turned the corner, a
man jumped from behind some trash cans near the garage entrance and grabbed her from
behind “like a big bear hug.” She at first thought it might be a prank, but when she felt a
knife being held at her waist and the man told her to “shut up” and “go to [your] car,” she
realized he was not joking. The man asked her, “Where is your car?” She asked him,
“Where are we going?” He did not answer, and just repeated “Get in your fucking car.”
       Ms. Doe was certain from the beginning of the assault that the attacker was
appellant, and she later identified him at trial. Although appellant was wearing
sunglasses, a dark hoodie, and a scarf over his face, he had a lisp and a distinctive voice
that she recognized. Ms. Doe was determined not to get into her car with appellant “at all
costs” because “nothing good could come [of it].” Appellant pushed her towards her car
while still holding her from behind, repeating at least twice “I’ll fucking kill you if you
don’t open the car.” Ms. Doe feared for her life and thought that if she did get into her
car, appellant would kill her.
       Ms. Doe’s car was in the top right corner of the garage, the farthest point from the
exits to the street and the school and approximately 80 feet from the point at which the
assault began. As the two came nearer to the car, with appellant continuing to force Ms.
Doe along at knife-point, he told her to get out her keys and unlock the door. At that


                                              2
point, Ms. Doe pretended to drop her keys as a stalling tactic. She knew there was at
least one other teacher still in the building who might come into the garage at that hour,
and she hoped to prolong the process of getting into the car long enough so that her
colleague might discover what was happening. As Ms. Doe stooped to retrieve her keys,
appellant put his hand firmly on her buttocks and in her crotch near her vaginal area.
       When Ms. Doe stood up, appellant became even more threatening, putting his
knife to her throat. The grasping at her made Ms. Doe feel “more scared, more
threatened,” and Ms. Doe was by that point convinced appellant intended to rape her.
Out of desperation, she tried to talk her way out of the situation, addressing appellant as
“Davy” and telling him “[Y]ou don’t have to do this. Think about what you are doing.
You could walk away now and everything will be okay.” In response, appellant said
“I’m not fucking Davy. I don’t know who Davy is, and shut the fuck up.”
       Having failed to convince appellant to walk away, Ms. Doe tried to free herself
from his grasp and run away. She twisted out of her overcoat and purposefully dropped
her bag. Appellant, however, caught her arms and once again held the knife to her neck.
In response to the escape attempt, he said “Don’t you think I’ll kill you? Don’t you
think I’ll hurt you?” Appellant pushed Ms. Doe against the driver’s side door. Ms. Doe
continued to try to wriggle free, and appellant hit her with “a closed fist to the head,”
continuing to repeat “Get in the fucking car. I’ll fucking kill you.”
       Ms. Doe fell to the ground at that point, onto her hands and knees. Appellant
forcefully pushed her over into a position where she was face up, with her back and
shoulders against the ground. Ms. Doe tried to curl up, bringing her knees up to her chest
in a fetal position. She continued to struggle with her arms, but felt resigned that
appellant was going to rape her. He spread her knees apart, pinned her arms down, and
lay down on top of her with his crotch between her legs. He said “I guess we’ll have to
do it this way.”
       At that moment, Ms. Doe’s co-worker, Ms. Speckels, arrived in the garage, and
saw two figures on the ground, one laying on top of the other. She yelled at them, at first
thinking they were students having intercourse in the garage. Appellant got up and left


                                              3
the garage, but only after telling Ms. Doe, “You’re one lucky bitch.” Ms. Speckels
caught sight of him while he was leaving, and recognized him as appellant. Then she
noticed that the other person on the ground was not a student, but her colleague, Ms. Doe,
who was in shock, shaking and visibly terrified. The two women got into Ms. Doe’s car,
locked the door, and called 911. When the police arrived, Ms. Doe identified her attacker
as appellant.
       Appellant was arrested a short time later at his home. A search yielded various
items of physical evidence that were consistent with Ms. Doe’s description of what
happened, including photos of Ms. Doe suggesting appellant had a sexual obsession with
her. In trial testimony, appellant admitted to being in the school garage, disguising
himself in the garb Ms. Doe described, interacting with Ms. Doe there, and wielding a
knife, but claimed she misinterpreted his conduct. He testified that he surprised Ms. Doe
in the garage as a joke. She was scared, so he “guid[ed] her to her car.”
       At one point, appellant testified, he “accidentally” brushed against Ms. Doe’s
buttocks when she stooped over to get her keys. He did tell her to get in her car, and the
two did fall to the ground at one point, but all he wanted to do in trying to put her into her
car was to see her off for the day. He denied attacking Ms. Doe. He also denied being
sexually attracted to Ms. Doe , and said that he had only told detectives he tried to kiss
her next to her car because the police pressured and harassed him during questioning. He
claimed he ran out of the garage when Ms. Speckels arrived only because Ms. Doe told
him to run.
       Appellant was charged with kidnapping with intent to commit rape (§ 209,
subd. (b)(1)) (count 1), assault with intent to commit rape (§ 220, subd. (a)) (count 2),
false imprisonment with force or violence (§§ 236, 237) (count 3), and criminal threats (§
422) (count 4). Each of these counts included a weapon enhancement allegation that
appellant used a knife during the commission of the charged offense. (§ 12022,
subd. (b)(1).) At trial, after deliberating an hour and a half, the jury returned verdicts of
guilty on all counts and found true each of the enhancement allegations.



                                              4
       Based on the aggravated kidnapping conviction and the finding of use of a knife in
the commission of the offense, appellant was sentenced to an indeterminate prison term
of eight years to life. Sentences on the remaining counts were imposed, but stayed. This
timely appeal followed.
                                  II.    DISCUSSION
A.     Sufficiency of the Evidence To Support The Conviction of Aggravated
       Kidnapping
       Appellant first argues there was insufficient evidence to support the asportation
element of the aggravated kidnapping charge. “ ‘On appeal, an appellate court deciding
whether sufficient evidence supports a verdict must determine whether the record
contains substantial evidence—which [means] . . . evidence that is reasonable, credible,
and of solid value—from which a reasonable jury could find the accused guilty beyond a
reasonable doubt.’ [Citations.] We presume in support of the judgment ‘the existence of
every fact the trier could reasonably deduce from the evidence.’ ” (People v. Vines
(2011) 51 Cal.4th 830, 869 (Vines)).
       Aggravated kidnapping under section 209, subdivision (b)(1), as with simple
kidnapping under section 207, requires substantial movement in order to satisfy the
asportation element of kidnapping, but in evaluating whether a given movement is
substantial, the trier of fact may consider more than the actual distance. (People v.
Martinez (1999) 20 Cal.4th 225, 232–237 (Martinez); see also People v. Magana (1991)
230 Cal.App.3d 1117, 1120–1121.) The simple kidnapping statute, section 207, does not
speak of movement over any specified distance, and limiting a jury’s consideration to a
particular distance is “rigid and arbitrary, and ultimately unworkable.” (Martinez, supra,
at p. 236.) Thus, the required distance cannot be specified in a fixed number of feet or
inches. (People v. Rayford (1994) 9 Cal.4th 1 (Rayford).) To determine whether the
movement involved is substantial, the jury may consider the “totality of the
circumstances” (Martinez, supra, at p. 237) surrounding the “ ‘scope and nature’ ” of the
movement (id. at p. 236), including the increased risk of harm to the victim, the

                                             5
decreased likelihood of detection, the increased danger in the victim’s foreseeable
attempts to escape, and the perpetrator’s opportunity to commit additional crimes. (Id. at
p. 237; accord, Vines, supra, 51 Cal.4th at pp. 869–870; see also People v. Dominguez
(2006) 39 Cal.4th 1141, 1152 (Dominguez) [“This standard suggests a multifaceted,
qualitative evaluation rather than a simple quantitative assessment.”].)
       For simple kidnapping under section 207, distance is a factor for the jury to
consider along with other contextual circumstances, but a finding of substantiality need
not be based on any particular factor (Martinez, supra, 20 Cal.4th at p. 233), and there is
no minimum distance. Applying the open-ended contextual test of substantiality that has
developed in the case law, courts have often found relatively short distances to be
substantial. (See, e.g., People v. Bradley (1993) 15 Cal.App.4th 1144, 1154, disapproved
on other grounds in Rayford, supra, 9 Cal.4th at p. 21 [movement of 50 to 60 feet from
open street to inside closed dumpster area was substantial movement]; People v. Shadden
(2001) 93 Cal.App.4th 164, 169 (Shadden) [movement of nine feet where it changed the
victim’s environment]; People v. Smith (1995) 33 Cal.App.4th 1586, 1594 [movement of
40 feet where victim moved from public to private area].) For aggravated kidnapping
under section 209, subdivision (b)(1), asportation rests on the same foundation—with the
substantiality of the movement involved governed by the same totality of the
circumstances approach—but there is a key difference: the jury must also find that the
movement (1) went beyond something merely “incidental” to the target crime and
(2) “increase[d] the risk of harm to the victim over and above that necessarily present in
the underlying crime itself.” 2 (Martinez, supra, 20 Cal.4th at p. 232; accord Vines,
       2
         This has been referred to as the “two-part Daniels . . . test” (Rayford, supra, 9
Cal.4th at p. 21), since it derives originally from People v. Daniels (1969) 71 Cal.2d 1119
(Daniels). The Daniels test was codified in amendments to section 209 enacted by the
Legislature in 1997. (See People v. James (2007) 148 Cal.App.4th 446, 454 & fn. 5
(James).) As originally enunciated by our Supreme Court, the second prong of the
Daniels test required the increase in risk to the victim must be substantial. (Daniels,
supra, at p. 1140.) The 1997 amendments to section 209 eliminated the requirement of a

                                             6
supra, 51 Cal.4th at p. 871 [same]; § 209, subd. (b)(2).) “ ‘Incidental’ means ‘that the
asportation play[ed] no significant or substantial part in the planned [offense], or that it
[was] . . . more or less [a] “ ‘trivial change[ ] of location having no bearing on the evil at
hand.’ ” ’ ” (James, supra, 148 Cal.App.4th at p. 454.) These two factors are “not
mutually exclusive, but interrelated” (Rayford, supra, 9 Cal 4th at p. 12), and of the two it
is often said that the “essence of aggravated kidnapping is the increase in the risk of harm
to the victim caused by the forced movement.” (Dominguez, supra, 39 Cal.4th at
p. 1152.)
       Whether the scope and nature of the movement here took it beyond something that
was merely incidental to rape and increased the risk to Ms. Doe beyond that inherent in
rape was a jury question to be decided under the totality of circumstances. The evidence
showed that appellant forcibly marched Ms. Doe some 80 feet. The new location to
which she was moved, next to her car, made it difficult for her to reach the garage exits
and more likely that appellant could avoid possible detection. That satisfies the first
prong of Daniels. (See Shadden, supra, 93 Cal.App.4th at p. 170 [by moving victim “to
the back room . . . out of public view,” defendant “made it less likely for others to
discover the crime and decreased the odds of detection”]; People v. Aguilar (2004) 120
Cal.App.4th 1044, 1049 [“Courts have held that moving a victim to a more isolated open
area which is less visible to public view is sufficient.”].) And the manner in which
appellant forced Ms. Doe to move to the new location, at the point of a knife, increased
the risk that she would be wounded or killed beyond that inherent in rape alone, thus
satisfying the second prong of the Daniels test. (See Vines, supra, 51 Cal.4th at pp. 870–
871 [ “[While] defendant’s forcible movement of the victims was limited to movement
inside the premises of the Watt Avenue McDonald’s [citation] . . . , the movement . . .
took Zaharko—and ultimately the other victims—from the front of the store, down a

“substantial” increase in risk. (Id. at p. 454, fn. 5; see Martinez, supra, 20 Cal.4th at
p. 232, fn. 4.)

                                               7
hidden stairway, and into a locked freezer. Under these circumstances, we cannot say the
‘scope and nature’ of this movement was ‘merely incidental’ to the commission of the
robbery.”] (Original italics.).)
       Relying on People v. Washington (2005) 127 Cal.App.4th 290 (Washington),
appellant argues that since he moved Ms. Doe within the confines of the parking garage,
the asportation required for aggravated kidnapping was insufficient.3 In Washington, the
defendants, in the course of robbing a bank, took the branch manager and a teller from
their work stations, a distance of approximately 25 feet and 45 feet, respectively, to the
vault to open it for the robbers. (Id. at pp. 296, 299.) After the vault was opened, the
robbers had the teller lie on the ground as the manager removed the money and gave it to
them. The robbers placed the money in a bag and then left. (Id. at p. 296.) The court of
appeal found those movements to be insufficient to support a conviction of kidnapping
for robbery because they were incidental to the commission of the robbery. The
movements occurred entirely within the bank, each victim was moved the shortest
distance possible to the vault, and the victims’ movement was necessary to open the vault

       3
          The foundation of this line of argument is Daniels, where our Supreme Court
observed that “when, in the course of a robbery a defendant does no more than move his
victim around inside the premises in which he finds him—whether it be a residence, as
here, or a place of business or other enclosure—his conduct generally will not be deemed
to constitute the offense proscribed by section 209.” (Daniels, supra, 71 Cal.2d at
p. 1140.) From Daniels, Washington and other kidnap-robbery cases appellant discerns
what he suggests is, in effect, a “rebuttable presumption” that movement within a single
structure is insufficient for purposes of section 209, whether the target crime is robbery or
rape. We disagree that there is any such “single structure” rule. (See James, supra, 148
Cal.App.4th 446, 456 [“There is no rigid “indoor-outdoor” rule by which moving a
victim inside the premises in which he is found is never sufficient asportation for
kidnapping for robbery while moving a victim from inside to outside (or the reverse) is
always sufficient.”] (Original italics.).) That reading of the law runs contrary to the
contextual, totality of the circumstances approach governing asportation that has been
applied consistently by our Supreme Court in recent years. (See Vines, supra, 51 Cal.4th
at pp. 869–870; Martinez, supra, 20 Cal.4th at p. 233; Dominguez, supra, 39 Cal.4th at
p. 1151.)


                                             8
and complete the robbery. (Id. at p. 300.) On the evidence adduced in this case, unlike
Washington—where “there was no excess or gratuitous movement of the victims over
and above that necessary to obtain the money in the vault” (id. at p. 299)—the jury could
reasonably have concluded that appellant moved Ms. Doe towards her car because he
thought that was a better place to avoid detection and prevent escape.4
       This case is more akin to People v. Jones (1999) 75 Cal.App.4th 616 (Jones) than
to Washington. In Jones, the female victim, who had just stepped out of her car in a
school parking lot to meet her boyfriend for lunch, was seized by the defendant and
forcibly moved about 40 feet back to her car, where he made her open the door and get
back in. As the defendant entered the car to rob her, the victim escaped through the other
side door. (Id. at p. 622.). The appellate court upheld a conviction for kidnapping to
commit robbery, explaining “Appellant’s forcing Watkins to move 40 feet within the
parking lot from her boyfriend’s truck to her car—by no means an insubstantial
distance—if considered alone did not substantially increase the harm to her. The critical
factor which substantially increased the risk of harm to Watkins occurred when he forced
her to move the 40 feet in order to then push her into her car. Although the car alarm was
sounding, once he pushed her into the car, she was no longer in public view as when she
was in plain sight with appellant holding his hand over her mouth—a situation which
would have aroused concern in any onlookers.” (Id. at pp. 629–630.).


       4
         In addition to Washington, appellant relies on People v. Daly (1992) 8
Cal.App.4th 47 (Daly), and People v. Sheldon (1989) 48 Cal.3d 935 (Sheldon). But those
cases involved simple kidnapping, not aggravated kidnapping, and focused on whether
the distance at issue was substantial enough. (See Daly, supra, 8 Cal.App.4th at p. 56
[“Daly was convicted of simple kidnapping, a violation of Penal Code section 207,
subdivision (a).”]; Sheldon, supra, 48 Cal.3d at p. 952–953 [in capital case simple
kidnapping conviction in Nevada that involved asportation “too minor to constitute
kidnapping” under California law deemed improper to submit to the jury as a penalty
phase aggravating circumstance under section 190.3, subdivision (b)].) The Daniels test
was not implicated in either case.


                                            9
       A “ ‘rape . . . does not necessarily require movement to complete the crime.’ ”
(Shadden, supra, 93 Cal.App.4th at p. 169, quoting People v. Salazar (1995) 33
Cal.App.4th 341, 348, fn. 8.) Where “a defendant drags a victim to another place, and
then attempts a rape, the jury may reasonably infer that the movement was neither part of
nor necessary to the rape.” (Shadden, supra, 93 Cal.App.4th at p. 169). Here, there was
more than just a gratuitous movement, unnecessary to the target crime of rape. Appellant
forcibly moved Ms. Doe twice the distance at issue in Jones, pushing her along at knife-
point, and in the ensuing struggle, she tried to escape, escalating the danger to her safety
as appellant tried to corral her, more than once pointing his knife at her throat. That
aspect of what happened in this case is “the essence of aggravated kidnapping.”
(Dominguez, supra, 39 Cal.4th 1141, 1152; see In re Earley (1975) 14 Cal.3d 122, 131–
132 [“The ‘risk of harm’ test is satisfied when the victim is forced to travel a substantial
distance under the threat of imminent injury by a deadly weapon. . . . [¶] ‘Clearly any
substantial asportation which involves forcible control of the robbery victim such as that
occurring in this case exposes her to grave risks of harm to which she would not have
been subject had the robbery occurred at the point of initial contact.’ ”].) The increased
peril was equal to if not greater than that faced by the victim in Jones when she was
pushed into a car. Ms. Doe managed to survive the attack, but the “fact that [the] dangers
[associated with the asportation] do not in fact materialize does not, of course, mean that
the risk of harm was not increased.” (Rayford, supra, 9 Cal.4th at p. 14; accord Vines,
supra, 51 Cal.4th at p. 870.)
       We find sufficient evidence to support the aggravated kidnapping conviction.

B.     Failure to Instruct Sua Sponte on Lesser Included Offense of False
       Imprisonment with Force or Violence

       Appellant next contends his conviction for aggravated kidnapping must be
reversed because, although the trial court instructed the jury on the offense of false
imprisonment with force or violence (§§ 236, 237, subd. (a)), it erred in failing to instruct


                                             10
the jury sua sponte on this crime as a lesser included offense. “ ‘ “We apply the
independent or de novo standard of review to the failure by the trial court to instruct on
an assertedly lesser included offense.” ’ ” (People v. Campbell (2015) 233 Cal.App.4th
148, 158.) A lesser offense is necessarily included in the charged offense only if it meets
either the “elements test” or the “accusatory pleading test.” (People v. Lopez (1998) 19
Cal.4th 282, 288.) The “elements test” is satisfied when “ ‘ “all the legal ingredients of
the corpus delicti of the lesser offense [are] included in the elements of the greater
offense.” ’ ” (Ibid.) The “accusatory pleading test” is satisfied “ ‘ “if the charging
allegations of the accusatory pleading include language describing the offense in such a
way that if committed as specified the lesser offense is necessarily committed.”
[Citation.]’ ” (Id. at pp. 288–289.)
       “Generally, to prove the crime of kidnapping, the prosecution must prove three
elements: (1) a person is unlawfully moved by 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.) To establish
the crime of false imprisonment by force or violence, the prosecution must prove the
defendant intentionally and unlawfully restrained, or confined, or detained someone by
violence or menace and made the other person stay or go somewhere against that
person’s will. (CALCRIM No. 1240.) “ ‘Violence . . . [is] the exercise of physical force
used to restrain over and above the force reasonably necessary to effect such restraint
(People v. Babich (1993) 14 Cal.App.4th 801, 806, italics omitted), and “menace” is a
threat of harm express or implied by word or act (People v. Matian (1995) 35
Cal.App.4th 480, 484). Because all of the elements of false imprisonment by force or
violence are included in the elements of kidnapping, the crime of kidnapping necessarily
includes the crime of false imprisonment effected by violence. (Shadden, supra, 93
Cal.App.4th at p. 171; People v. Cooks (1983) 141 Cal.App.3d 224, 333.)
       “ ‘ “[A] trial court must instruct on lesser included offenses, even in the absence of
a request, whenever there is substantial evidence raising a question as to whether all of
the elements of the charged offense are present.” ’ [Citation.] Conversely, even on


                                             11
request, the court ‘has no duty to instruct on any lesser offense unless there is substantial
evidence to support such instruction.’ ” (People v. Cole (2004) 33 Cal.4th 1158, 1215;
see also People v. Breverman (1998) 19 Cal.4th 142, 154 (Breverman).) Substantial
evidence exists where there is evidence from which a jury composed of reasonable
persons could conclude that the appellant was guilty of the lesser crime. (People v.
Breverman, supra, at p. 162.) It is evidence that “must reach a level sufficient to
‘ “deserve consideration by the jury, i.e., ‘evidence from which a jury composed of
reasonable [people] could have concluded’ ” ’ that the particular facts underlying the
instruction did exist. [Citations.] Thus, a trial court need not instruct sua sponte [on
lesser] offenses unless the evidence would justify a conviction of such offenses.” (People
v. Turner (1983) 145 Cal.App.3d 658, 679, disapproved on other grounds in People v.
Majors (1998) 18 Cal.4th 385, 411.) On the record presented here, there was substantial
evidence to support a finding that appellant was only guilty of false imprisonment,
mandating that the jury be instructed on this lesser offense. (Breverman, supra, 19
Cal.4th at pp. 148, 154–155; see People v. Webster (1991) 54 Cal.3d 411, 443.)
       Although it was error for the court not to instruct on false imprisonment as a lesser
included offense to aggravated kidnapping, we find the error to be harmless. The court
gave instructions on attempted aggravated kidnapping as a lesser included offense. And
despite having this option, the jury declined to take it. Since attempted aggravated
kidnapping, like false imprisonment, does not require asportation (People v. Cole (1985)
165 Cal.App.3d 41, 50), the jury’s choice of aggravated kidnapping over attempted
aggravated kidnapping shows that, when given the option of convicting appellant of a
lesser included charge that did not require asportation, the jury decided upon the more
serious offense. We see no reason why its decision to pass on a lesser included crime
would have been any different if false imprisonment had been available as an alternative
in addition to attempted aggravated kidnapping. Thus, we find no reasonable probability
that the jury would have reached a result more favorable to appellant had it been properly




                                             12
instructed. (Breverman, supra, 19 Cal.4th at p. 178; People v. Watson (1956) 46 Cal.2d
818, 836 (Watson).)5
       In a variation on this argument, appellant argues in the alternative that we must
reverse his independent conviction under section 237 for false imprisonment. If false
imprisonment is found to be a lesser included offense of aggravated kidnapping, he
contends, that offense is necessarily subsumed within the greater section 209, subdivision
(b)(1) offense, requiring reversal of the count 3 conviction for violation of section 237.
The Attorney General concedes the point. We agree with her concession, and
accordingly will reverse the conviction on count 3.
C.     Failure to Clarify the Difference Between the Asportation Element of
       Aggravated Kidnapping and the Asportation Element of Simple Kidnapping
       Finally, appellant argues that, given the nature of the defense he pursued in this
case, and the evidence presented, the court’s instruction on the asportation element of
aggravated kidnapping when compared to its instruction on the asportation element of
simple kidnapping left the jury incapable of understanding crucial distinctions between
these two crimes. To avoid forcing the jury into arbitrary decisionmaking, he argues, the
court was duty-bound to provide a sua sponte clarifying explanation on asportation.
Appellant emphasizes that he does not contend the instructions on asportation misstated
the law, just that the difference between aggravated kidnapping asportation and simple


       5
         Appellant argues that California appellate courts have not yet decided “the
standard by which prejudice flowing from the failure to instruct the jury on all applicable
lesser included offenses should be evaluated—the federal constitutional Chapman
standard [Chapman v. California (1967) 386 U.S. 18, 24] or the state law standard of
Watson.” For this contention, he cites People v. Milbrook (2014) 222 Cal.App.4th 1122
and People v. Moye (2009) 47 Cal.4th 537. But those cases arose in the context of failure
to instruct on a crime of passion manslaughter theory in a murder case, a scenario that
arguably may be characterized as one resulting in incomplete instructions on the elements
of the offense charged—malice murder. Whether the Chapman or the Watson standard
of prejudice applies in that situation, at least in a non-capital case, was a question left
open in Breverman (see Milbrook, supra, 222 Cal.App.4th at p. 1144, citing Breverman,
supra, 19 Cal.4th at p. 170, fn. 19), but it is not implicated here.



                                             13
kidnapping asportation, on this record, was so difficult to grasp and so consequential to
him that it was a violation of due process for the court not to give a clarifying instruction.
       The instructions at issue were taken unmodified from CALCRIM No. 1203
(Aggravated Kidnapping for Rape) [“As used here, substantial distance means more than
a slight or trivial distance. The movement must have increased the risk of physical or
psychological harm to the person beyond that necessarily present in the rape. In deciding
whether the movement was sufficient, consider all the circumstances relating to the
movement.”], and CALCRIM No. 1215 (Simple Kidnapping) [“Substantial distance
means more than a slight or trivial distance. In deciding whether the distance was
substantial, you must consider all of 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 distance the other person was moved was beyond that merely
incidental to the commission of rape, whether the movement increased the risk of
physical or psychological harm, increased the danger of a foreseeable escape attempt, or
gave the attacker a greater opportunity to commit additional crimes, or decreased the
likelihood of detection.”]. Appellant does not point to any particular deficiency in these
instructions. He simply contends they were hard to understand and apply in the context
of this case without further guidance. We do not agree. When the instructions are read
as a whole, the distinction between asportation for purposes of simple kidnapping, on the
one hand, and asportation for purposes of aggravated kidnapping, on the other hand, was
phrased plainly enough for the jury to grasp.
       We see nothing on this record to overcome “the usual presumption that jurors are
able to correlate, follow, and understand the court’s instructions . . . .” (People v. Ibarra
(2007) 156 Cal.App.4th 1174, 1190.) The jury asked no questions, and nothing in its
verdicts suggests confusion or lack of comprehension. Appellant points out that the
prosecutor told the jury in closing argument that simple kidnapping and aggravated
kidnapping contain “essentially the same elements but without the purpose of intending
to commit rape.” But if the prosecutor made a misleading argument to the jury about the
applicable law, appellant’s trial counsel should have objected and sought a curative


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instruction. He failed to do so and therefore waived any ability to raise the issue on
appeal. (See People v. Wilson (2008) 44 Cal.4th 758, 800 [“To preserve a claim of
prosecutorial misconduct, a defendant must make a timely and specific objection. Failure
to do so forfeits the issue for appeal.”].) Given the force and weight of the evidence
against appellant, we fail to see how a more fulsome explanation of asportation would
have improved his chances of avoiding conviction for aggravated kidnapping.
                                  III.   DISPOSITION
       Appellant’s conviction on count 3, for false imprisonment by force or violence, is
reversed. In all other respects, the judgment is affirmed.




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                                   _________________________
                                   Streeter, J.


We concur:


_________________________
Ruvolo, P.J.


_________________________
Rivera, J.




A142077/People v. Velasquez


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