Filed 11/6/14 P. v. Louie CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D065964

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. FSB1201283)

DANNY LOUIE,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Bernardino County,

R. Glenn Yabuno, Judge. Affirmed in part; reversed in part with directions.


         Law Office of Allison H. Ting and Allison H. Ting, under appointment by the

Court of Appeal, for Defendant and Appellant.

         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, William M. Wood and Marvin E.

Mizell, Deputy Attorneys General, for Plaintiff and Respondent.
       Danny Louie appeals from a judgment convicting him of witness intimidation,

kidnapping during carjacking, and other offenses, with gang enhancements. Challenging

the gang enhancements, he asserts there was instructional error and/or insufficient

evidence for two of the elements required for the enhancement (the primary activity

element and the gang benefit element). He also raises several challenges to his

kidnapping during carjacking conviction, including the court (1) erred in denying his

request for an instruction on the lesser offense of simple kidnapping; (2) did not instruct

the jury that the burden of proof for the defense of mistaken belief in consent was on the

prosecution, not the defense; and (3) erred in failing to instruct the jury that it should

view his admissions with caution. We reject these contentions of reversible error.

       The Attorney General acknowledges that two of defendant's convictions must be

reversed: (1) a gang participation count because defendant did not engage in the criminal

conduct with other gang members, and (2) a carjacking count because it is a lesser

included offense of kidnapping during carjacking. We agree, and accordingly reverse

and dismiss the gang participation and carjacking convictions. In all other respects, the

judgment is affirmed.

                   FACTUAL AND PROCEDURAL BACKGROUND

       The charged offenses arose from incidents that occurred on March 24 and 25,

2012. In the first incident, defendant threatened Erma Hollins that she would be killed if

she told police that her car had been stolen a few hours earlier. In the second incident the

following day, defendant, while fleeing from the police, committed a kidnapping and

carjacking against a second victim (identified at trial as John Doe). Defendant is a

                                               2
member of the Five Times Hometown Crip Gang ("Five Times"), and he has several

gang-related tattoos, including a tattoo of a five-point star on his cheek. His offenses

were committed in a neighborhood claimed by this gang.

Witness Intimidation of Hollins

       The March 24 witness intimidation occurred after a man (apparently defendant's

cousin) approached Hollins outside a liquor store and asked her for a ride to a location

about two blocks away. Hollins did not know the man, but she had seen him in the area

before. Although she felt a little nervous, she agreed to provide the ride because the

distance was not very far. When Hollins drove into an alley, the man told her to get out

of her car. Hollins complied because she was afraid, and the man drove away in her car.

       Hollins walked back to the liquor store; unsuccessfully tried to get someone to call

the police for her; waited a couple of hours hoping her car would be returned; and

eventually flagged down a police car. When defendant (who was getting into the

passenger seat of a van) saw the police car approaching, he told Hollins "if you tell the

police about my cousin stealing your car we're going to kill you." Defendant and the

driver of the van then left the area. Because of defendant's threat, Hollins was afraid to

report the crime, but she did so. Sometime later, the police found her car.

       A police officer who spoke with Hollins at the scene testified that she appeared

"pretty scared"; she was crying "off and on"; and she told the police she was "scared to

death." When contacted by the police, Hollins identified defendant as the person who

threatened her, but at trial she recanted this identification. Police witnesses testified that

when she was interviewed at the scene and when a detective interviewed her the next day,

                                               3
she stated the man who made the threat about killing her had a star tattooed on his face.

When the detective showed her a photo lineup of six men with star tattoos on their faces,

she identified defendant as the man who had threatened her.1 At trial, Hollins stated

defendant had a star tattoo on his face, and she had seen him at the liquor store on

previous occasions although she did not personally know him. However, she testified

defendant was not the man who threatened her and she merely told the police he was at

the liquor store and he might be able to help identify the person who took her car.

       To support that Hollins was afraid to identify the perpetrator of the threat, the

detective testified that at Hollins's request he interviewed her at a friend's apartment; she

told him she was staying with a friend because she feared the people involved in the case

would find her and harm or threaten her; and when she looked at the photo lineup she

appeared "very scared" and said "he's in there" but she was "afraid to get anybody in

trouble." An investigator for the district attorney's office testified Hollins told him she

was afraid to come to court; she knew defendant and did not want to get him in trouble;

and she wanted to give him a second chance. Although Hollins claimed at trial that she

did not know about a gang called Five Times, she acknowledged she told the police she

did not want the case prosecuted because she was afraid of gang retaliation.2


1      The detective also showed Hollins a photo lineup of possible suspects for the
taking of her car, but she was unable to make an identification.

2      Hollins also acknowledged that she had been approached by defendant's mother
and his girlfriend about defendant's case, and at the mother's request Hollins signed a
notarized statement stating defendant was not the person who took her car or who
threatened her.

                                              4
Kidnapping and Carjacking Against Doe

       The March 25 kidnapping/carjacking occurred while Doe, accompanied by his

nephew (David), was driving out of an apartment complex located near the liquor store

where Hollins was threatened. Police witnesses testified they were at the apartment

complex looking for defendant because he had been identified by Hollins as a suspect in

the incident the previous day. The police spotted defendant standing under a carport,

along with several other males including another member of the Five Times gang. As a

marked police vehicle approached the group of males, defendant and the other gang

member took off running. During an ensuing police pursuit, officers saw Doe's vehicle

speeding away from the area.

       Doe testified that as he was leaving the complex, defendant was running across the

parking lot and Doe slammed on the brakes to avoid hitting defendant. When defendant

noticed David sitting in the passenger seat of the car, defendant ran up to the passenger

door, spoke to David, and entered the car. Doe testified the radio was playing in the car

and he did not hear what defendant said when he spoke to David. According to a police

officer who interviewed Doe after the incident, Doe reported that defendant "jumped"

into the car and said "get the fuck out of here or I will fuck you up," and when Doe

refused to drive defendant said "just drive, motherfucker, get out of here."

       Doe testified he had never seen defendant before; he did not give defendant

permission to enter the car; and he "[a]t first was kind of puzzled" and did not "know

really what was going on." Because it appeared David knew defendant, Doe took his foot

off the brake and, without pressing the gas pedal, allowed the car to roll slowly through

                                             5
the parking lot as he tried to figure out what to do. When Doe saw police cars pass by, he

assumed defendant was running from the police and he repeatedly stopped the car and

told defendant to get out of the car. Defendant, who was lying down in the back seat in

an attempt to hide, did not comply.

       Defendant ordered Doe to drive "Motherfucker," and defendant and David were

repeatedly yelling at Doe to "go, go, go." Doe did not want to be involved with someone

who was running from the police and did not want to continue driving, but he felt he was

being forced to do so. He was afraid because defendant was "frantic, a little excited,

sweating and covered in tattoos"; he thought defendant was a gang member who was

being chased by the police; he did not know defendant and did not know what defendant

would do; and he was worried defendant might have a weapon.

       After driving for about one and one-half miles, Doe decided to try to escape from

defendant by going to a gas station because it was a public place with cameras. Doe

parked the car at the gas station, got out of the vehicle with the car keys, and walked

away towards a nearby market.3 Meanwhile (unbeknownst to Doe), the police had been

pursuing Doe's vehicle in an undercover vehicle. When the unmarked police vehicle

arrived at the gas station, the officers saw David and defendant leave the car and enter the

gas station store, while Doe walked away in another direction. The officers detained the

three males. When interviewed at the scene, Doe was "tearing up," "very emotional," and

"very upset," and he told the police he did not stop driving because he was afraid for his


3      Doe testified that at the time of the incident he was on summary probation and he
did not have a driver's license, but what concerned him was getting away from defendant.

                                             6
life. Doe testified he knew about the Five Times gang, and he was afraid to testify

because he did not want anything to happen to his friends or family.

Gang Expert's Testimony

       The prosecution's gang expert (Detective Nelson Carrington) testified that the Five

Times gang started in the 1980's (originally under a different name), and in March 2012

the gang had over 80 members. Five Times gang members used several special tattoos,

including a five-point star. By the late 1990's and early 2000's, the gang had become "so

violent" that the city imposed a gang injunction on it. The injunction, which can restrict

even "loitering in the neighborhood with another gang member," is placed only on gangs

that "are considered the worst." Defendant is one of the gang members listed on the gang

injunction.

       Detective Carrington testified he has investigated crimes committed by Five Times

gang members, including narcotics sales, robberies, firearm possession, and shootings,

and these crimes are the gang's primary activities. He has also investigated the crimes of

intimidation, threats, and vehicle theft committed by the gang's members. Detective

Carrington described several specific convictions incurred by Five Times gang members,

including convictions in May 2008 for carrying a concealed firearm; in October 2010 for

possession for sale of a controlled substance (methamphetamine); in August 2011 for

criminal threats; and in December 2011 for murder with personal discharge of a firearm.

       The carrying of a concealed firearm conviction involved a May 2008 incident in

which the police saw the gang member loitering with other persons in violation of the

Five Times gang injunction, and while fleeing from the police the gang member dropped

                                             7
a firearm which discharged when it hit the ground. The gang member was charged with

carrying a concealed firearm and resisting arrest, and he pled guilty to the concealed

firearm charge. The possession for sale conviction involved a July 2010 traffic stop

incident in which a gang member was found in possession of several individually pieced

packages of a controlled substance. The gang member was charged with possession for

sale of cocaine base and methamphetamine with gang benefit enhancements, and he pled

guilty to possession of methamphetamine for sale. The criminal threats conviction

involved an August 2011 domestic dispute during which the gang member threatened to

kill his ex-girlfriend's boyfriend, and when the police arrived the gang member yelled,

"fuck you, police, I'm Fifth Street Crip." The gang member was charged with making

criminal threats and resisting an officer with gang benefit enhancements, and he pled

guilty to the criminal threats charge. The murder conviction arose from a November

2010 incident in which a gang member shot a rival gang member in the back of the head

after a gang-related verbal confrontation at a party. After a jury trial, the gang member

was convicted of first degree murder with enhancements for personal discharge of a gun

and intent to benefit a gang, and the offense of gang participation.

       The gang expert testified that gang members want to instill fear in people to gain

respect, and they want their gang to have a reputation as being "the toughest of the

tough." They engage in conduct to frighten people who live in the area that they want to

claim for their gang, so that they can brazenly commit crimes in this neighborhood

without the people calling the police. Gang members can achieve this respect and fear by

marking their territory with gang graffiti, committing crimes openly in public, and

                                             8
threatening witnesses with physical harm or death if they contact the police. They also

instill fear by displaying their gang tattoos in a "blatant and public" manner, including on

their head or face, because "[m]ost people are afraid of a person they suspect to be a gang

member."

       The expert opined that when a gang member displaying gang tattoos commits a

crime by himself, this can benefit the entire gang because the people in the community

know the crime was committed by a gang member and they fear the entire gang and are

afraid to tell the police. The expert stated that defendant's gang tattoo on his face showed

how proud and bold he was about being a member of his gang and the tattoo would

intimidate people. The expert opined that intimidation benefiting a gang would occur if a

gang member with "tattoos blazing on the face" approached a carjacking victim in

territory claimed by the gang and threatened the person with injury if she reported the

crime. The expert explained the victim will know the person threatening to kill her is a

gang member because of the five-point star tattoo, and this "will intimidate almost

anybody."

Defense and Rebuttal

       Relevant to the carjacking/kidnapping allegations involving Doe, David testified

on behalf of the defense that when he saw defendant running at the apartment complex, it

appeared defendant was "fearing for his life." David rolled down the car window, yelled

out to defendant "what's going on," and defendant "told [David] can I get out of the

apartments." David unlocked the back door so defendant could get in the car. Doe asked

"what's going on? What is he doing? Like, where we going to go[?]" Without making

                                             9
any threats, defendant told Doe that he should "[j]ust drive him. Get him out of the

apartments." Doe continued driving, and as they were leaving the complex a police car

"zoomed" past them at a fast speed. Doe appeared to be shocked by the way the police

car sped by, but he continued driving out of the complex. When Doe noticed an officer

standing on a street corner, Doe said he was on probation and could not be "caught up in

anything," and he started speeding down the street.

       In rebuttal, an officer who interviewed David about the incident testified that

David told him that defendant said "drive motherfucker, get the fuck out of here" when

he got in the car. David told the officer that he feared for his life because this was

defendant's "hood" and "he had to live there," which the officer understood to mean that

David "went along with what . . . defendant . . . was telling him because he feared later

retaliation" given that they were in Five Times turf.

Jury Verdict and Sentence

       For the incident involving Hollins, defendant was convicted of witness

intimidation by force or threat (count 1, Pen. Code,4 § 136.1, subd. (c)(1)).5 For the

incident involving Doe, defendant was convicted of carjacking (count 3, § 215, subd. (a))

and kidnapping during a carjacking (count 4, § 209.5, subd. (a)). The jury found a gang

enhancement to be true for each of these counts. (§ 186.22, subd. (b)(1)(C).) Defendant




4      Subsequent unspecified statutory references are to the Penal Code.

5      Defendant was also charged with carjacking against Hollins (count 2), but the
court dismissed this count before the case was submitted to the jury.

                                             10
was also convicted of participating in a gang based on his conduct against Doe (count 5,

§ 186.22, subd. (a)).

       The court sentenced defendant to prison for a 13-year determinate term, plus an

indeterminate term of 15 years to life. The sentence consisted of three years for count 1

witness intimidation; 10 years for the gang enhancement on count 1; and 15 years to life

for count 4 kidnapping during a carjacking. Sentences for the remaining charges were

stayed.

                                       DISCUSSION

                          I. Reversal of Gang Participation Offense

       The Attorney General concedes that the count 5 gang participation conviction

(§ 186.22, subd. (a)), which was based on the incident involving Doe, must be reversed

because there is no evidence defendant committed the offenses against Doe with another

gang member. (See People v. Rodriguez (2012) 55 Cal.4th 1125, 1128, 1132.) We agree

and reverse the gang participation conviction.

                        II. Challenges to Gang Enhancement Findings

       The gang enhancement statute provides for increased punishment when the

defendant committed a crime to benefit a criminal street gang. (§ 186.22, subd. (b).)

Defendant raises sufficiency of the evidence and/or instructional challenges related to

two of the elements required for the gang enhancement: (1) the primary activity element,

and (2) the gang benefit (or gang-related) element.




                                             11
                                    A. Legal Principles

       The primary activity element concerns the threshold requirement that the gang

meet the statutory definition of a criminal street gang. To establish a group as a criminal

street gang, the prosecution must show the group has "as one of its primary activities the

commission of one or more" statutorily specified crimes. (§ 186.22, subd. (f).) The

commission of the statutorily enumerated crimes must be one of the group's principal

occupations; the occasional commission of the crimes by the group's members does not

suffice. (People v. Vy (2004) 122 Cal.App.4th 1209, 1222.) This element may be

established by evidence showing the group's members consistently and repeatedly have

committed statutorily enumerated offenses, or by testimony from a gang expert stating

the gang was primarily engaged in the commission of statutorily specified offenses. (Id.

at pp. 1222-1223.) Charged offenses in the current case can be included in the offenses

relied upon to establish the primary activity element. (Id. at p. 1225, fn. 10.)

       The gang benefit element is derived from the statutory requirement that the

charged crimes be "committed for the benefit of, at the direction of, or in association with

any criminal street gang, with the specific intent to promote, further, or assist in any

criminal conduct by gang members . . . ." (§ 186.22, subd. (b)(1).) To establish this

element, the prosecution must show that the crime was gang related. (People v. Albillar

(2010) 51 Cal.4th 47, 60.) The gang-related requirement may be shown by evidence

indicating the offense could benefit the gang by enhancing the gang's reputation for

violence and increasing the gang's stronghold on the neighborhood. (Id. at p. 63; see

People v. Gardeley (1996) 14 Cal.4th 605, 619.) However, "[n]ot every crime committed

                                             12
by gang members is related to a gang"; for example, an offense committed by gang

members as part of " 'a frolic and detour unrelated to the gang' " is not gang related.

(Albillar, supra, at pp. 60, 62.) Further, a defendant's mere membership in the gang does

not suffice to establish the gang enhancement. (Gardeley, supra, at pp. 623-624.) The

gang enhancement statute may be applied when a gang member commits a crime with no

showing that other gang members were involved; however, the record must show that the

gang member's criminal conduct is connected to the activities of the gang. (See People v.

Rodriguez, supra, 55 Cal.4th at pp. 1138-1139 [enhancement may be applied to lone

gang member who commits gang-related felony]; People v. Rios (2013) 222 Cal.App.4th

542, 562-563.)

       When reviewing defendant's challenges to the sufficiency of the evidence, we

examine the entire record in the light most favorable to the judgment and presume in

support of the judgment the existence of every fact the jury could reasonably deduce from

the evidence. (People v. Albillar, supra, 51 Cal.4th at pp. 59-60.) As to his claims of

instructional error, we inquire whether there is a reasonable likelihood the jury applied

the instructions in an erroneous manner. (People v. Butler (2010) 187 Cal.App.4th 998,

1013.) Generally, if the jury was erroneously instructed on the elements of the gang

enhancement allegation, reversal is required unless the record shows the error was

harmless beyond a reasonable doubt. (See People v. Sengpadychith (2001) 26 Cal.4th

316, 320, 326-327.)




                                             13
                      B. Challenges to the Primary Activity Element

       Offenses that qualify for the primary activity element include (among others) sale

or possession for sale of controlled substances, unlawful homicide, assault with a deadly

weapon or by means of force likely to produce great bodily injury, criminal threats and

witness intimidation. (§ 186.22, subds. (e)(1), (3), (4), (8), (24), (f).) The jury here was

instructed that the gang enhancement allegation required a showing that the group has as

one of its primary activities the commission of "drug sales, murder, assault, criminal

threats, [and] witness intimidation." The prosecution's gang expert testified the gang's

primary activities included (among others) narcotic sales and shootings.

       Challenging the sufficiency of the evidence for the primary activity element,

defendant argues the record does not support that Five Times consistently and repeatedly

(as opposed to occasionally) committed the statutorily delineated crimes that establish

this element. The contention is unavailing. The jury was presented with evidence that

the gang's primary activities included narcotic sales and shootings (i.e., assault with a

deadly weapon), and that Five Times gang members had been convicted of first degree

murder, criminal threats, and (based on the current case) witness intimidation. This

evidence supports that the gang regularly commits the qualifying crimes of controlled

substance sales, murder, assault with a deadly weapon, criminal threats and witness

intimidation.

       To support his claim that the group's commission of qualifying offenses is only

sporadic and occasional, defendant points out that the evidence showed the commission

of only one murder, one criminal threat, and one witness intimidation, and the gang

                                             14
expert did not opine that these particular offenses were among the primary activities of

the gang. These factors do not defeat the jury's finding on the primary activity element.

First, the fact that the gang expert did not refer to these specific crimes as among the

gang's primary activities did not preclude the jury from finding that the gang member's

convictions of these offenses reflected the types of activities the gang was primarily

involved in. Second, the jury was not required to find that the gang repeatedly engaged

in one particular qualifying offense; rather, a finding that the gang consistently and

repeatedly committed qualifying offenses could properly be based on the gang members'

commission of three different statutorily specified offenses on three separate occasions,

as well as the gang expert's opinion regarding the other qualifying offenses regularly

committed by the gang. (See People v. Sengpadychith, supra, 26 Cal.4th at p. 324

[primary activity element can be shown by evidence of consistent and repeated

commission of "criminal activity listed in the gang statute"].)

       Defendant also raises claims of error because in some instances the offenses

referred to in the prosecution's evidentiary presentation, the instructions, and the gang

enhancement statute did not match with each other; i.e., the prosecution's evidence

referred to narcotics sales, possession for sale of a controlled substance and shootings; the

instructions referred to drug sales and assault; and the statute refers to controlled

substance sales or possession for sale and assault with a deadly weapon. None of these

factors create reversible error. Based on the commonly understood meaning of the

words, we have no doubt the jury understood that narcotics sales, drug sales, and sale of

controlled substances all refer to the same type of criminal conduct. If the jury

                                              15
considered the possession-for-sale conviction to support the primary activity element,

there was no error because this offense qualifies under the statute. Also, the jury could

reasonably deduce that the shootings referred to by the expert meant assault with a deadly

weapon given the evidence about the gang's history of violence and commission of a

murder by shooting. Further, because the record contains no evidence that the gang

committed simple assault rather than aggravated assault, there is no reasonable possibility

the instructional reference to assault caused the jury to premise its finding on simple

assault.

       Defendant also challenges the foundational support for the gang expert's testimony

regarding narcotics sales, asserting the expert merely stated he had investigated this crime

but did not describe the results of his investigations. To the contrary, the expert (who

was a member of the police department's gang unit and very familiar with the Five Times

gang) testified he had investigated crimes committed by the gang, including narcotics

sales, and he further opined that narcotics sales was one of the gang's primary activities.

This testimony provided an adequate basis for the jury to conclude the gang regularly

committed the offense of narcotic sales.

                        C. Challenge to the Gang Benefit Element

       With respect to the gang benefit element, defendant asserts the record does not

support that the threat to Hollins and the kidnapping/carjacking of Doe were committed

for the benefit of the gang.




                                             16
       Although there was no showing that defendant acted with another gang member

when he committed the offenses, the record supports that his crimes were gang related.

The jury could reasonably deduce from the evidence that Hollins and Doe recognized that

defendant was a gang member; defendant's criminal conduct towards them caused them

to fear for their lives because of their fear of his gang; and defendant was using the

common gang modus operandi of instilling fear in the community and demanding

noncooperation with the police. The evidence showed that defendant sported a very

visible tattoo on his face that was associated with his gang, and he committed the crimes

in an area claimed by his gang. Both Hollins and Doe specifically noticed defendant's

tattoos: Hollins referred to his facial tattoo as the characteristic that allowed her to

recognize him, and Doe referred to his tattoos as a source of his fear that caused him to

continue driving. Drawing all inferences in favor of the jury's verdict, the record shows

that defendant engaged in aggressive, threatening conduct towards Hollins and Doe:

threatening Hollins that she would be killed if she reported the earlier carjacking to the

police, and as he was running from the police threatening to "fuck" up Doe if he did not

drive. Hollins acknowledged that she told the police that she did not want the case to be

prosecuted because she was afraid of gang retaliation, and her fear was severe enough to

cause her to be afraid to stay in her apartment. Doe told the police the area was

defendant's "hood," and he testified he knew about the Five Times gang; he complied

with defendant's order to keep driving because he thought defendant was a gang member

and he was afraid; and he was afraid to testify because he was concerned about possible

harm to his friends or family.

                                              17
       Considering all this evidence together, the jury could reasonably assess that the

victims knew the area where defendant committed the crimes was claimed by his gang as

its territory; the victims readily recognized him as a gang member by his facial tattoo;

defendant committed the crimes in a fashion that conveyed to the victims that they had

better obey him or they would suffer harm; and this criminal conduct was part and parcel

of the gang's activities of intimidation designed to allow the gang to operate freely

without police interference. The jury could also consider that the crimes involved

specific demands that the victims stay away from or evade the police, which supported

that defendant essentially communicated to the victims that given his status as a gang

member he was entitled to thwart people's cooperation with the police.

       We are not persuaded by defendant's suggestion that upholding the gang

enhancement finding in his case in effect means anytime a gang member with a visible

gang-related tattoo commits a crime in public in the gang's claimed territory, the crime

can automatically be deemed a gang-related offense. To the contrary, a gang

enhancement might not be supported if a gang member with a visible gang tattoo

commits a crime without instilling fear in the community about the gang or using the

crime to advance the gang's activities; for example, if the gang member steals an item for

his own personal use without being observed by or communicating with the victim. We

also reject defendant's contention that the gang-benefit element for the incident involving

Doe cannot be sustained because the expert did not explicitly address this count when

providing his opinion on gang-benefit conduct. The expert provided sufficient

information to the jury about the types of fear-instilling activities engaged in by gang

                                             18
members to support the jury's conclusion that defendant acted to benefit his gang during

the offense against Doe.

      The record supports that defendant's conduct of threatening Hollins and

committing the kidnapping/carjacking against Doe was gang related so as to support the

gang-benefit enhancement.6

      III. Reversal of Count 3 (Carjacking) as Lesser Included Offense of Count 4

                             (Kidnapping During Carjacking)

      Defendant argues, and the Attorney General agrees, that he may not be convicted

of both carjacking (count 3) and kidnapping during carjacking (count 4) because

carjacking is a lesser included offense of kidnapping during carjacking. We also agree.

      A defendant may not receive multiple convictions for a single act or course of

conduct based on lesser included offenses. (People v. Sanders (2012) 55 Cal.4th 731,

736.) An offense is a lesser included offense if the greater offense cannot be committed

without also necessarily committing the lesser offense. (Id. at p. 737.) Kidnapping

during carjacking is committed when the defendant commits a carjacking, and also

commits a kidnapping to facilitate the carjacking. (§ 209.5, subd. (a); People v. Medina

(2007) 41 Cal.4th 685, 693.) Because kidnapping during carjacking by definition cannot



6       In his appellate briefing, defendant focuses his arguments on the gang-related
prong of the gang enhancement statute, and he does not elaborate on the specific intent
prong. (See People v. Rios, supra, 222 Cal.App.4th at p. 564.) In any event, the
evidence supporting that defendant's conduct was designed to benefit his gang by
instilling fear in the community to allow gang activity to occur unimpeded by the police
likewise supports an inference that he intended his conduct to further the criminal
activities of gang members.

                                           19
be committed without necessarily committing carjacking, carjacking is a lesser included

offense of kidnapping during carjacking. (People v. Ortiz (2002) 101 Cal.App.4th 410,

415.) Accordingly, the carjacking conviction must be dismissed. (Ibid.)

               IV. Challenges to Count 4 Kidnapping During Carjacking

        A. Refusal To Instruct on Simple Kidnapping as Lesser Included Offense

       Defendant argues the court erred by declining his request that the jury be

instructed on simple kidnapping as a lesser included offense of kidnapping during a

carjacking.

       As stated, kidnapping during carjacking is committed when a defendant engages in

a kidnapping to facilitate a carjacking. (People v. Medina, supra, 41 Cal.4th at p. 693.)

Accordingly, simple kidnapping is a lesser included offense of kidnapping during

carjacking because kidnapping during carjacking cannot be committed without

necessarily committing kidnapping. (See People v. Ortiz (2012) 208 Cal.App.4th 1354,

1368; People v. Eid (2010) 187 Cal.App.4th 859, 868.)7

       A trial court is required to instruct on a lesser included offense when there is

substantial evidence raising a question as to whether all of the elements of the charged

greater offense are present. (People v. Ortiz, supra, 208 Cal.App.4th at p. 1367.)

Substantial evidence in this context is evidence from which reasonable jurors could



7      The trial court refused to instruct on simple kidnapping based on its conclusion
that simple kidnapping is not a lesser included offense of kidnapping during carjacking.
The Attorney General does not argue in support of the court's conclusion on this point,
but assumes arguendo that simple kidnapping is a lesser included offense of kidnapping
during carjacking.

                                             20
conclude that the lesser offense, but not the greater, was committed. (People v. Medina,

supra, 41 Cal.4th at p. 700.) The rationale for requiring instruction on lesser included

offenses is to avoid forcing the jury into an " 'unwarranted all-or-nothing choice' " which

creates the risk the jury will convict on the charged offense even though one of the

elements remains in doubt because " 'the defendant is plainly guilty of some

offense . . . .' " (People v. Hughes (2002) 27 Cal.4th 287, 365.)

       When evaluating whether a lesser included offense instruction should have been

given, we construe the evidence in the manner most favorable to the defendant and apply

an independent standard of review. (People v. Manriquez (2005) 37 Cal.4th 547, 584-

585; People v. Ortiz, supra, 208 Cal.App.4th at p. 1367.) There is no duty to instruct on

a lesser included offense when the evidence, even construed most favorably to the

defendant, is such that the defendant, if guilty at all, could only be guilty of the greater

offense; that is, when the evidence that the offense was less than that charged is

nonexistent or minimal and insubstantial. (Ortiz, supra, at p. 1367; People v. Smith

(2013) 57 Cal.4th 232, 240; People v. Cooksey (2002) 95 Cal.App.4th 1407, 1410.)

       On this record, there is no substantial evidence that, if defendant was guilty of

kidnapping, he was guilty of the lesser offense of simple kidnapping rather than the

greater offense of kidnapping during carjacking. Kidnapping is committed when the

defendant uses force or fear to move the victim. (People v. Ortiz, supra, 208 Cal.App.4th

at p. 1368; § 207, subd. (a); see People v. Martinez (1999) 20 Cal.4th 225, 237.)

Kidnapping during a carjacking is committed when the defendant commits a carjacking

(i.e., uses force or fear to take a vehicle from the victim); to facilitate the carjacking the

                                               21
defendant commits a kidnapping; and the kidnapping involves movement of the victim

beyond what is merely incidental to the carjacking, that is a substantial distance from the

vicinity of the carjacking, and that increases the risk of harm to the victim above that

present in the crime of carjacking. (§§ 215, 209.5; People v. Medina, supra, 41 Cal.4th at

p. 693.) If the jury credited the evidence showing defendant did not use fear to make Doe

drive, then defendant was guilty of neither kidnapping nor kidnapping during carjacking;

thus, there was no need to instruct the jury on simple kidnapping based on the evidence

that Doe drove the car voluntarily.

       On the other hand, if the jury credited the evidence showing defendant did use fear

to make Doe drive and concluded he committed a kidnapping, there was no reasonable

evidentiary basis for the jury to find that he committed merely simple kidnapping rather

than kidnapping during a carjacking. The evidence that defendant wanted to use the car

to get away was undisputed, and there was no evidence that defendant had any reason to

interact with Doe apart from making him drive the car. Further, it was undisputed that

Doe drove the car about one and one-half miles away from the point where defendant

first entered the vehicle, and under circumstances where defendant was fleeing from the

police. These circumstances exposed Doe to a risk of injury while he continued driving,

when he decided to park and get away from defendant, and when he was apprehended by

the police. Assuming the jury found defendant committed a kidnapping, the evidence

necessarily established all the elements of kidnapping during carjacking: defendant

committed a kidnapping to effectuate a carjacking, and the movement of Doe's person

was more than merely incidental to defendant's taking control of the vehicle, was a

                                             22
substantial distance from the vicinity of the carjacking, and increased the risk of harm to

Doe. Because the nature of the kidnapping necessarily satisfied the elements of

kidnapping during carjacking, the court was not required to instruct on the lesser offense

of simple kidnapping.

       Defendant argues the jury could have found him guilty of simple kidnapping but

not kidnapping during carjacking based on a finding that he merely wanted a ride away

from the apartment complex (thus he used fear to commit the kidnapping of Doe's person

for this purpose) but he had no intent to take Doe's car or exercise control over it (thus he

did not commit the offense of carjacking). The contention is unavailing. A carjacking

requires that the defendant intend to permanently or temporarily deprive the victim of

possession of the vehicle. (§ 215, subd. (a); People v. Medina, supra, 41 Cal.4th at

p. 693.) This taking of possession can occur when the defendant imposes his dominion

or control over the car by ordering the victim to drive. (People v. Duran (2001) 88

Cal.App.4th 1371, 1377.) Defendant's intent to obtain a ride from Doe through the use of

fear satisfied the intent-to-take element for carjacking because it showed he intended to

temporarily deprive Doe of control over the vehicle. The fact that defendant may not

have intended to keep the car in his possession or continue demanding a ride after he was

transported away from the police does not relieve him of culpability for carjacking.

       Alternatively, even assuming the court should have instructed on simple

kidnapping, the error was harmless because there is no reasonable probability the jury

would have found defendant guilty of simple kidnapping instead of kidnapping during

carjacking. (See People v. Prince (2007) 40 Cal.4th 1179, 1267 [reasonable probability

                                             23
of different outcome standard generally applies to erroneous failure to instruct on lesser

included offense].) Given the compelling evidence that the kidnapping was designed to

facilitate the carjacking and met the nonincidental/substantial distance/increased risk of

harm elements of the kidnapping during carjacking offense, there is no reasonable

likelihood the jury would have selected the lesser offense over the greater offense. (See

id. at pp. 1267-1268.)

       The lack of prejudice is also buttressed by the fact that the trial court did instruct

the jury on false imprisonment by violence or menace as a lesser included offense of

kidnapping during carjacking, and the jury did not select this lesser offense.8 The jury's

selection of the greater offense of kidnapping during carjacking rather than false

imprisonment supports that even if it had been instructed on simple kidnapping it would

have selected kidnapping during carjacking.

       Defendant argues that we should apply the stricter harmless-beyond-a-reasonable

doubt standard for federal constitutional error. (See People v. Prince, supra, 40 Cal.4th

at p. 1267 [recognizing there may be circumstances where failure to instruct on lesser

included offenses creates federal constitutional error].) Even under this standard, the

record shows no reasonable possibility the jury might have selected the lesser offense of

simple kidnapping rather than kidnapping during carjacking.




8      The jury was instructed that the lesser included offense of false imprisonment by
violence or menace is committed when the defendant "confined or detained" the victim
by violence or menace and made the victim "stay or go somewhere against" the victim's
will. (See CALCRIM No. 1240.)

                                              24
       B. Claim that Jury Was Not Instructed that the Prosecution, Not the Defense, Had

              the Burden of Proof for Defense of Mistaken Belief in Consent

       If a defendant has a mistaken belief in the victim's consent, he is not guilty of the

offense of kidnapping during carjacking. Defendant argues the trial court erred because it

did not instruct the jury that the prosecution had the burden to prove the absence of this

defense. Although defendant recognizes the court instructed the jury on the belief-in-

consent defense, he maintains the instruction was inadequate because instead of using the

language concerning this defense that is contained in the standard instruction on

kidnapping during carjacking (CALCRIM No. 1204), the court instructed the jury on the

defense based on a mistake-of-fact instruction set forth in CALCRIM No. 3406.

Defendant views the latter instruction as placing the burden of proof for the defense on

the defendant instead of on the prosecution. We reject this claim because the instructions

provided to the jury, including CALCRIM No. 3406, correctly informed the jury that it

was the prosecution's burden to prove the absence of this defense.

       Generally, for crimes that include an element that the victim did not consent, the

defendant may raise a defense based on the defendant's reasonable belief that the victim

consented. (People v. Mayberry (1975) 15 Cal.3d 143, 153-155.) A mistaken belief in

consent is premised on mistake of fact, which is deemed to negate the basic requirement

of wrongful intent that underlies criminal conduct. (Ibid.) The defendant need only raise

a reasonable doubt whether he or she had a reasonable belief in consent, and the ultimate

burden of persuasion remains on the prosecution to prove the nonexistence of this belief

beyond a reasonable doubt. (Id. at p. 157; People v. Howard (1996) 47 Cal.App.4th

                                             25
1526, 1533; People v. Eid, supra, 187 Cal.App.4th at p. 878 [reasonable belief in consent

is element of offense when there is evidence to support it]; see People v. Williams (1992)

4 Cal.4th 354, 361.) A trial court has a sua sponte duty to instruct the jury on the

allocation and weight of the burden of proof. (People v. Mower (2002) 28 Cal.4th 457,

483.)

        Here, the trial court gave the jury the standard instruction on kidnapping during

carjacking (CALCRIM No. 1204), which included the requirement that the prosecution

proves the victim "did not consent to the movement." CALCRIM No. 1204 also contains

language setting forth the defense of belief in consent, and the bench note for the

instruction states this language should be included when the defense is supported by the

evidence. This portion of CALCRIM No. 1204 states: "The defendant is not guilty of

kidnapping if [he] reasonably and actually believed that the other person consented to the

movement. The People have the burden of proving beyond a reasonable doubt that the

defendant did not reasonably and actually believe that the other person consented to the

movement. If the People have not met this burden, you must find the defendant not guilty

of this crime." (CALCRIM No. 1204, italics added.) When instructing the jury with

CALCRIM No. 1204, the trial court did not include this belief-in-consent language.

        Instead, the court instructed on the belief-in-consent defense using language from

CALCRIM No. 3406. The jury was told: "The defendant is not guilty of carjacking and

kidnapping for carjacking if he did not have the intent or mental state required to commit

the crime because he reasonably did not know a fact or reasonably and mistakenly

believed a fact. [¶] If the defendant's conduct would have been lawful under the facts as

                                             26
he reasonably believed them to be, he did not commit carjacking. If you find that the

defendant believed that he had consent and if you find that belief was reasonable, he did

not have the specific intent or mental state required for carjacking or kidnapping for

carjacking. [¶] If you have a reasonable doubt about whether the defendant had the

specific intent or mental state required for carjacking and kidnapping, you must find him

not guilty of those crimes." (Italics added.)

       Defendant argues the CALCRIM No. 3406 mistake-of-fact instruction provided to

the jury was deficient because—unlike the omitted paragraph in CALCRIM No. 1204—

the instruction failed to state that his lack of belief in the victim's consent was in effect an

element of the offense that the prosecution had the burden to prove beyond a reasonable

doubt. To review this claim, we inquire whether there is a reasonable likelihood the jury

misunderstood the burden of proof on the belief-in-consent issue. (See People v. Butler,

supra, 187 Cal.App.4th at p. 1013.) We consider the instructions as a whole and assume

the jurors are intelligent persons capable of understanding and correlating all the

instructions. (Ibid.)

       In the general instruction on burden of proof the jury was told: "[The]

presumption [of innocence] requires that the People prove a defendant guilty beyond a

reasonable doubt. Whenever I tell you the People must prove something, I mean they

must prove it beyond a reasonable doubt." (See CALCRIM No. 220.) The CALCRIM

No. 3406 mistake-of-fact instruction informed the jurors that they must find defendant

not guilty if they had a reasonable doubt about whether defendant had a reasonable belief

that the victim consented. Considering the general burden-of-proof instruction along

                                                27
with the mistake-of-fact instruction, the jurors would have understood that the

prosecution's duty to prove guilt beyond a reasonable doubt extended to the issue of

defendant's belief in consent because they were required to acquit him if they had a

reasonable doubt as to whether he reasonably believed the victim voluntarily consented.

The clear import of the mistake-of-fact instruction was if the prosecution did not prove

beyond a reasonable doubt that defendant did not have a reasonable belief in consent, he

was entitled to a not guilty verdict. (See, e.g., People v. Fiu (2005) 165 Cal.App.4th 360,

386 [prosecution's burden to disprove defense that aider and abettor withdrew is

adequately conveyed by instruction stating "that if the jury has a reasonable doubt

whether or not the defendant effectively withdrew, [it] should acquit"]; see also People v.

Smith (2005) 135 Cal.App.4th 914, 929 [general burden of proof instruction combined

with instruction on elements of defense were sufficient; court was not required to sua

sponte reiterate burden of proof for each particular defense].)

       To support his contention that the instructions were inadequate, defendant asserts

the instructions told the jury about belief in consent as a defense that he must prove,

rather than as a defense that the prosecution must disprove. There is no reasonable

likelihood the jury interpreted the mistake-of-fact instruction to mean defendant had the

burden to prove the defense. As set forth above, defendant need only raise a reasonable

doubt to support the belief-in-consent defense, and once this showing is made, the

prosecution has the burden to disprove defendant's belief in consent. The mistake-of-fact

instruction does not apprise the jury of these nuances of the law; i.e., it does not refer to

the belief-in-consent issue as a defense, and it says nothing about the initial burden

                                              28
placed on the defendant followed by the ultimate burden of proof on the prosecution.

Rather, the instruction affirmatively states defendant is not guilty if he did not have the

required mental state because of a mistaken belief in the victim's consent, and a

reasonable doubt on this issue requires a not guilty verdict. The reference to the

reasonable doubt standard is consistent with the prosecution's burden to disprove belief in

consent beyond a reasonable doubt. Further, during closing argument the parties made

no statements suggesting defendant had the burden to prove he believed the victim

consented; rather, they merely presented their differing views on whether he had the

intent to commit the crime based on his belief in the victim's consent.

       To support his contention, defendant cites the language in the mistake-of-fact

instruction stating "if you find" that defendant believed he had consent, and asserts this

terminology could have misled the jury to think he had the burden to prove the defense.

We are not persuaded. Given the explicit reference to the reasonable doubt standard,

there is no reasonable likelihood the jury thought a higher showing was required to

establish the defense.

       Considering the instructions as a whole, there is no reasonable likelihood the

jurors interpreted the instructions to mean defendant, rather than the prosecution, had the

burden of proof for the defense of mistaken belief in consent. Defendant's claim of

instructional error on this point is unavailing.




                                              29
             C. Failure To Instruct that Defendant's Admissions Should Be Viewed

                                           With Caution

       Defendant argues his kidnapping-during-carjacking conviction must be reversed

because the court failed to instruct the jury to view his admissions with caution. (See

CALCRIM No. 358.)9 The Attorney General does not dispute the instruction should

have been given, but asserts the error was harmless.

       A trial court has a sua sponte duty to instruct the jury that it must view evidence of

a defendant's oral admissions with caution. (People v. Dickey (2005) 35 Cal.4th 884,

905.) Because witnesses may inaccurately report a defendant's statements, the purpose of

the cautionary instruction is to assist the jury in determining if the statement was in fact

made. (Ibid.; People v. Bemis (1949) 33 Cal.2d 395, 399.) The failure to tell the jury to

view the evidence of the defendant's admissions with caution does not require reversal

unless the defendant shows it is reasonably probable the outcome would have been more

favorable had the instruction been given. (Dickey, supra, at p. 905.) Other instructions,

including thorough instructions on assessment of witness credibility, may adequately

alert the jury to view the evidence of defendant's omissions with caution so as to make


9       CALCRIM No. 358 states: "You have heard evidence that the defendant
made . . . oral or written statements . . . . You must decide whether the defendant made
any . . . statements, in whole or in part. If you decide that the defendant made
such . . . statements, consider the statements, along with all the other evidence, in
reaching your verdict. It is up to you to decide how much importance to give to the
statements. [¶] Consider with caution any statement made by . . . defendant tending to
show his . . . guilt unless the statement was written or otherwise recorded." (Italics
added; brackets and parentheses omitted.)

                                             30
the instructional omission harmless. (See People v. McKinnon (2008) 43 Cal.4th 610,

680; People v. Wilson (2008) 43 Cal.4th 1, 19, 20.)

       The evidence of defendant's admissions included the police officer's testimony that

Doe reported that defendant told him to drive or he would "fuck you up" as he entered the

car, and Doe's testimony and the officer's testimony that defendant ordered Doe to drive

"motherfucker." This testimony was contradicted by David's testimony that defendant

did not make any threats, and (arguably to some extent) by Doe's testimony that he did

not hear what defendant said to David when he arrived at the car. The jury needed to

make credibility determinations concerning the testimony and reports about defendant's

statements, as well as the import of his statements considering all the circumstances.

Although these matters required the jury to determine whether defendant's statements in

the car were accurately reported, the jury was thoroughly instructed on how to assess

credibility and the level of proof required to convict.

       The instructions on witness credibility told the jurors that they alone must judge

the believability of the witnesses, and set forth a lengthy, detailed list of the factors the

jury should consider, including ability to perceive and remember, bias, consistency, prior

statements, and reasonableness as compared to other evidence. (See CALCRIM Nos.

226, 318.) These instructions alerted the jury to critically evaluate the evidence provided

by the witnesses, which would include the testimony and statements supporting that

defendant threatened Doe. The jury also knew from the instructions that defendant was

presumed innocent, the prosecution had to prove him guilty beyond a reasonable doubt

(see CALCRIM No. 220) and that circumstantial evidence could not be relied upon to

                                              31
conclude a fact has been proven unless the prosecution has proven each fact essential to

the conclusion beyond a reasonable doubt (see CALCRIM No. 224). From these

instructions on the burden of proof and circumstantial evidence, the jurors would have

understood that they should not rely on the evidence of defendant's statements unless they

were convinced the statements were firmly established by the evidence.

       Given the detailed instructions telling the jury to consider numerous factors when

making its credibility determinations and to acquit unless guilt was proven beyond a

reasonable doubt, defendant has not shown it is reasonably probable the jury would have

reached a different result had it been explicitly told to view his admissions with

caution.10




10     Defendant does not claim the cautionary instruction was required for his
threatening statement to Hollins to support the witness intimidation count, based on case
authority holding that the instruction is not required when "the defendant's words
constitute the crime itself." (People v. Zichko (2004) 118 Cal.App.4th 1055, 1057, 1059-
1060.) We note the California Supreme Court has granted review in a case in which the
court disagreed with Zichko's holding. (People v. Diaz, S205145, rev. granted Nov. 20,
2012.) In any event, we would find the omission of the cautionary instruction to be
harmless with respect to defendant's statement to Hollins based on the credibility and
burden of proof instructions provided to the jury, plus the fact that the main dispute
concerning the witness intimidation count was not whether the statement was accurately
reported, but whether defendant was the person who made the statement. (See People v.
Wilson, supra, 43 Cal.4th at p. 20.)

                                             32
                              V. Claim of Cumulative Error

       Defendant argues the cumulative effect of error requires reversal. Apart from the

errors conceded by the Attorney General and which require reversal (i.e., the gang

participation and carjacking convictions), any additional errors were not so egregious as

to require reversal even viewed cumulatively. To the extent there were or may have been

errors, on this record there is no reasonable possibility that the jury relied on improper

matters for the primary activity element, that it would have selected simple kidnapping

rather than kidnapping during carjacking, or that it did not understand it should critically

evaluate the evidence of defendant's admissions.

                                      DISPOSITION

       The convictions for count 3 carjacking (§ 215, subd. (a)) and count 5 gang

participation (§ 186.22, subd. (a)) are dismissed. In all other respects, the judgment is

affirmed. The superior court is directed to prepare an amended abstract of judgment

removing the count 3 and count 5 convictions, and to forward a copy of the amended

abstract of judgment to the Department of Corrections and Rehabilitation.


                                                                      HALLER, Acting P. J.

WE CONCUR:


MCDONALD, J.


O'ROURKE, J.


                                             33
