Filed 1/22/16 P. v. Diaz CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                       E062324

v.                                                                       (Super.Ct.No. INF1302087)

LUIS RAUL DIAZ,                                                          OPINION

         Defendant and Appellant.



         APPEAL from the Superior Court of Riverside County. Harold W. Hopp, Judge.

Affirmed.

         Eric S. Multhaup, under appointment by the Court of Appeal, for Defendant and

Appellant.

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

General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr., Lise Jacobson and

Susan Elizabeth Miller, Deputy Attorneys General, for Plaintiff and Respondent.




                                                             1
       Andrew De Los Santos suspected that Shane Ayala (the victim) was the

perpetrator of a robbery at De Los Santos’s condominium during which De Los Santos’s

girlfriend was tied up. De Los Santos beat the victim. Thereafter, he walked the victim

at gunpoint to a waiting car driven by defendant and appellant Luis Raul Diaz.

Defendant drove De Los Santos and the victim to a remote desert area where De Los

Santos shot and killed the victim. They left the body to decompose in the desert; his

bones were eventually discovered by hikers.

       Defendant was found guilty of first degree felony murder, and the special

circumstance of murder committed during the commission of a kidnapping. Defendant

makes the following claims on appeal:

       1.      He was deprived of his federal constitutional rights to due process, effective

assistance of counsel, and a fair trial by the trial court’s failure to instruct the jury on the

lesser included offense of false imprisonment for the predicate offense of kidnapping for

felony murder, and the failure to instruct on the lesser included offenses of second degree

murder and voluntary manslaughter for the first degree murder charge.

       2.      He was deprived of his federal constitutional rights to due process and a

fair trial by the omission of an element of kidnapping in CALCRIM No. 1215 that was

given to the jury.

       3.      His federal constitutional rights to due process, a fair trial, and effective

assistance of counsel were violated by trial counsel’s stipulation that he had been

convicted of a felony and had served a prior prison term—the trial court erred by denying

defendant’s motion for new trial based on ineffective assistance of counsel.


                                                2
       4.       He received ineffective assistance of counsel, and was deprived of his due

process and fair trial rights, by his counsel’s failure to make timely objections to

inadmissible hearsay testimony.

       We affirm the judgment in its entirety.

                       FACTUAL AND PROCEDURAL HISTORY

       A.       PROCEDURAL HISTORY

       Defendant was charged in the information with a violation of Penal Code section

1871 as he “did willfully, unlawfully, and with deliberation, premeditation, and malice

aforethought murder [the victim].” Defendant was further charged with the special

circumstance that the murder was committed while he was engaged in the commission of

kidnapping, in violation of section 207, within the meaning of section 190.2, subdivision

(a)(17)(B).2 Defendant was also charged with having suffered a prior serious felony

conviction (§ 667, subd. (a)) and having served a prior prison term (§ 667.5, subd. (b)).

       The jury found defendant guilty of first degree murder on the theory of felony

murder and found the special circumstance true. After waiving his right to a jury trial,

and in a bifurcated court trial, the trial court found that defendant had suffered the prior




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

       2 In addition, he was charged with personally and intentionally discharging a
firearm and proximately causing great bodily injury or death of another person within the
meaning of section 12022.53, subdivision (d), and personal firearm use within the
meaning of section 12022.5, subdivision (a). These allegations were dismissed by the
People prior to trial.


                                               3
serious felony conviction within the meaning of section 667, subdivision (a). The People

dismissed the prior prison term allegation in the interests of justice.

       The trial court sentenced defendant to life without the possibility of parole plus

five years for the section 667, subdivision (a) prior.

       B.     FACTUAL HISTORY

              1.     DISAPPEARANCE OF THE VICTIM AND DISCOVERY OF HIS

                     SKELETAL REMAINS

       Destiny Ayala was the victim’s sister. She last saw the victim in July 2011. She

exchanged text messages with him in August 2011. She became concerned in early

September when she had not heard from him. She went to his house in Palm Springs but

he was not there. She filed a missing person’s report with the Palm Springs Police

Department.

       On December 19, 2011, a Riverside County Sheriff’s deputy responded to a call

that skeletal remains had been found in the area of Sky Valley. In order to access the

area, the deputy had to use a dirt road. The area where the skeletal remains were found

was remote, open desert. The remains were scattered, most likely due to animal activity.

There were two burn areas near the remains. A melted belt buckle, a fired projectile, a

live round of ammunition, and a burned T-shirt were found by the remains.

       Sergeant Deborah Gray of the Riverside County Coroner’s Office was a forensic

anthropologist trained to examine skeletal remains. She was called to the Sky Valley

area to examine the skeletal remains. She determined that all the bones found belonged




                                              4
to one person. The person had been deceased between two weeks and six months. The

person was likely male, White or Hispanic, and between 20 to 23 years old.

       Riverside County Sheriff’s Investigator Martin Alfaro was the lead investigator on

the case. Based on DNA identification and dental comparison, it was determined the

remains belonged to the victim. An autopsy was performed on the victim’s remains. The

victim had a semicircular defect in his skull, which was likely the result of a bullet

wound.

              2.     ASHLEY PRIETO’S TESTIMONY

       Ashley Prieto was living in Morongo during the summer of 2011. She knew De

Los Santos from high school. After they graduated, Prieto started buying drugs from De

Los Santos. She had known the victim since 2010; she had purchased drugs from him.

She also knew defendant because he dated her friend, Christina Arthur.

       In August 2011, Prieto received a telephone call from the victim. He told her that

he was in a car with De Los Santos and defendant on the way to Las Vegas. She was

concerned because defendant and De Los Santos were heavily involved in drug sales and

the victim was not as heavily involved. The victim went missing.

       Several months later, in approximately October, Prieto was in Palm Springs with

De Los Santos. She and De Los Santos were smoking marijuana. She asked him what

had happened to the victim. De Los Santos told her that he believed the victim had

broken into his house and tied his girlfriend up during a robbery. As a result, De Los

Santos told Prieto that he took the victim out to the desert and shot him in the head. De

Los Santos told her that the victim had confessed to being involved in the robbery of De


                                              5
Los Santos’s girlfriend so he deserved to be killed. Prieto felt that De Los Santos was

proud to have killed the victim.

       On December 28, 2011, Investigator Alfaro interviewed Prieto. Prieto told him

that De Los Santos had told her he shot the victim in the head. The information that the

victim had been shot in the head had not been released to the public. Prieto would not

have known the information from another source.

              3.     WALDO BARKER’S TESTIMONY

       Waldo Barker3 was arrested during an automobile theft investigation; he told the

arresting officer that he knew about a murder involving defendant and De Los Santos.

Investigator Alfaro interviewed him. Barker was made no promises of leniency in the

automobile theft case.4

       Barker met De Los Santos in 2011. Barker was a mechanic and he worked on De

Los Santos’s car. Barker and De Los Santos used drugs together. Barker had met

defendant through De Los Santos.

       Sometime in August 2011, around 4:00 a.m., Barker went to a condominium in

Cathedral City, where De Los Santos lived, to eat and get “high.” Defendant was with

De Los Santos. While Barker was at the house, the victim called De Los Santos looking




       3  Barker was unavailable for trial because he invoked his Fifth Amendment right
not to testify; his preliminary hearing testimony was read to the jury.

       4 Barker had a 2004 conviction for burglary, a conviction for automobile theft,
and a conviction for possession of methamphetamine.


                                            6
for heroin. Around 5:30 a.m., De Los Santos left the house to get the heroin and Barker

went home. Barker was unsure if defendant also went home.

        De Los Santos called Barker around 7:30 a.m. and told him to come back to the

condominium. When Barker got to the condominium, he saw that the front door jamb

had been broken and the place was ransacked. De Los Santos was upset. He had a

handgun in his waistband. De Los Santos asked Barker where he had been since he had

left the house. De Los Santos told Barker that he had been robbed. Barker advised De

Los Santos that he had been working; De Los Santos told him that he believed him. He

said he knew who had done it and that he already had him.

        De Los Santos took Barker to his bedroom. The room was ransacked. In a nearby

bathroom, he saw the victim; the victim had a split lip and a black eye. The victim

repeatedly told De Los Santos that he had not committed the burglary. De Los Santos

had Barker sit with the victim while he went to do something. The victim had blood on

his shirt.

        De Los Santos returned and told the victim to put on a hooded sweatshirt, a hat

and sunglasses. He told the victim that he was going to take him home. The victim

continued to plead with De Los Santos, advising him he had not committed the burglary.

De Los Santos told Barker to watch the house for him because the front door was broken.

        De Los Santos walked the victim out of the house while holding the handgun. De

Los Santos told the victim not to do anything stupid and not be loud, and “everything will

be cool.” De Los Santos gave Barker a look that Barker interpreted “like a wink,” that he

was not going to take the victim home.


                                             7
       De Los Santos and the victim left in a green sedan that was driven by defendant.

Defendant had been outside waiting in the car; De Los Santos and the victim got in the

backseat.

       Barker observed spots of blood on the hallway floor. De Los Santos called Barker

and asked him to try to clean up the blood. Barker tried to clean up the blood but was

unsuccessful. Barker went home around 8:45 a.m. De Los Santos was still not home.

       Barker saw De Los Santos and defendant several days later. Barker told defendant

that the victim’s girlfriend was worried that she had not heard from the victim.

Defendant told Barker that they had driven the victim out to the desert in Sky Valley.

The victim kept asking De Los Santos not to hurt him. Defendant claimed he tried to

convince De Los Santos not to hurt the victim, and to convince the victim to tell the truth

about the burglary. Defendant claimed that De Los Santos “snapped.” Defendant walked

away and De Los Santos shot the victim. De Los Santos told Barker that the victim had

“told more truth than he should have” and had admitted his involvement in the burglary.

De Los Santos admitted to Barker that he had lost it and shot the victim. They left the

victim’s body tied to a post.

       Barker directed Investigator Alfaro to the condominium where De Los Santos had

lived. De Los Santos’s no longer lived in the condominium. The front door jamb

showed signs of damage. There were bleach stains on the carpet. Chemical tests were

done on some of the walls and carpet, and were presumptive for blood. During a search

of De Los Santos’s car, police found shotgun shells. Police also found a loaded rifle, and

.40-caliber ammunition in De Los Santos’s new apartment.


                                             8
              4.     CHRISTINA ARTHUR’S TESTIMONY

       Arthur was defendant’s girlfriend in 2010 and 2011. She and defendant used

drugs when they were dating, including heroin and methamphetamine. Arthur and

defendant moved into an apartment together in Palm Springs. The victim would come to

the apartment approximately once each week. They would all do drugs together. Arthur

met De Los Santos in high school; he was her drug supplier. In 2011, defendant drove

several different cars, including his mother’s Toyota sedan. At the time of the victim’s

murder, defendant had been working with De Los Santos selling drugs for him.

       The last time Arthur saw the victim was in August 2011; she became concerned

when she had not heard from him in a week. Arthur asked defendant whether he had

talked to the victim recently. Defendant told her he had not talked to the victim and that

she was not to mention the victim any more. She thought this was strange because they

had been friends. Arthur heard rumors about what had happened to the victim. Arthur

asked defendant if he had killed the victim, and he claimed he had nothing to do with it.

In a pretrial interview, Arthur had claimed that when she asked defendant about the

victim, he told her to “stay the fuck out” of the disappearance and was adamant that she

not mention the victim’s name.

       During the investigation, Detective Alfaro discovered that defendant was in

prison. No search of defendant’s home could be made because of his incarceration. The

parties stipulated that defendant pleaded guilty in Riverside County on September 30,

2011, to one felony count of possession for sale of a controlled substance. He was

sentenced to two years eight months in prison.


                                             9
                                       DISCUSSION

       A.     LESSER INCLUDED OFFENSE INSTRUCTIONS

       Defendant insists that he received ineffective assistance of counsel based on his

counsel’s failure to request that the trial court instruct the jury on the lesser included

offense of false imprisonment for the predicate offense of kidnapping for felony murder.

He additionally claims that his rights to due process and a fair trial were violated by the

trial court’s failure to instruct the jury on the lesser included offenses of second degree

murder and manslaughter for the first degree murder charge.

              1.      INSTRUCTIONS

       Here, the jury was instructed only on felony murder and that defendant aided and

abetted the kidnapping, which resulted in the murder of the victim. The jury was

instructed that in order to find defendant guilty, it had to find that he “committed or aided

and abetted kidnapping,” that he “intended to commit or intended to aid and abet the

perpetrator in committing kidnapping,” and that even if he “did not personally commit

kidnapping, [t]hen a perpetrator, whom the defendant was aiding and abetting, personally

committed kidnapping, and while committing kidnapping, the perpetrator caused the

death of another person.” The jury was instructed, “the defendant must have intended to

or aided and abetted the felony of kidnapping before or at the time that he caused the

death. It’s not required the defendant be present when the death occurs.”




                                              10
       The jury was also instructed on the special circumstance intent requirement for an

accomplice when considering the special circumstance of kidnapping. The jury was

advised, “If you decide the defendant is guilty of first degree murder but was not the

actual killer, then when you consider the special circumstance of kidnapping, you must

also decide whether the defendant acted either with intent to kill or with reckless

indifference to human life.” The jury was instructed that in order to find the special

circumstance true, it had to find as follows: “1. That the defendant’s participation in the

crime began before or during the killing; [¶] 2. The defendant was a major participant in

the crime; and [¶] 3. When the defendant participated in the crime, he acted with reckless

indifference to human life.” The jury was advised as to the special circumstance that

defendant either aided and abetted or committing the kidnapping, that a perpetrator did an

act that caused the death of another person, and that the act causing death and the

kidnapping were part of one continuous transaction.

       The jury was also instructed on kidnapping as follows: “The Information alleges

that the murder charged in Count 1 occurred during the commission of kidnapping or

attempted kidnap[ping]. [¶] To prove that the defendant is guilty of this allegation, the

People must prove that: [¶] 1. The defendant took, held or detained another person by

using force or instilling reasonable fear; [¶] 2. Using that force or fear, the defendant

moved the other person a substantial distance; and [¶] 3. The other person did not

consent to the movement.” No lesser offense instructions were given to the jury.




                                             11
              2.     FALSE IMPRISONMENT

       “‘In criminal cases, even absent a request, the trial court must instruct on general

principles of law relevant to the issues raised by the evidence. [Citation.] This obligation

includes giving instructions on lesser included offenses when the evidence raises a

question whether all the elements of the charged offense were present, but not when there

is no evidence the offense was less than that charged. [Citation.] The trial court must so

instruct even when, as a matter of trial tactics, a defendant not only fails to request the

instruction, but expressly objects to its being given.’” (People v. Moye (2009) 47 Cal.4th

537, 548.)

       “To justify a lesser included offense instruction, the evidence supporting the

instruction must be substantial—that is, it must be evidence from which a jury composed

of reasonable persons could conclude that the facts underlying the particular instruction

exist.” (People v. Blair (2005) 36 Cal.4th 686, 744-745, rejected on other grounds in

People v. Black (2014) 58 Cal.4th 912.)

       Defendant frames his claim on appeal as an ineffective assistance of counsel claim

for failing to request the lesser included instruction of false imprisonment for the

predicate offense of kidnapping for felony murder. In order to establish ineffective

assistance under the Sixth Amendment, a defendant “must demonstrate both deficient

performance under an objective standard of professional reasonableness and prejudice

under a similarly objective standard of reasonable probability of an adverse effect on the

outcome. [Citation.] To establish ineffective assistance under the counsel clause of

article I, section 15 of the California Constitution, he must do the same.” (People v.


                                              12
Waidla (2000) 22 Cal.4th 690, 718; see Strickland v. Washington (1984) 466 U.S. 668,

687-696; People v. Ledesma (1987) 43 Cal.3d 171, 215-218.)

       Section 207, subdivision (a), provides a definition of kidnapping as follows:

“Every person who forcibly, or by any other means of instilling fear, steals or takes, or

holds, detains, or arrests any person in this state, and carries the person into another

country, state, or county, or into another part of the same county, is guilty of kidnapping.”

“False imprisonment is the unlawful violation of the personal liberty of another.”

(§ 236.) Personal liberty is violated when the victim is compelled to remain where he

does not wish to remain, or to go where he does not wish to go. (People v. Reed (2000)

78 Cal.App.4th 274, 280.) “It is the restraint of a person’s freedom of movement that is at

the heart of the offense of false imprisonment.” (Ibid.)

       False imprisonment is a lesser included offense of simple kidnapping. (People v.

Magana (1991) 230 Cal.App.3d 1117, 1120-1121.) Kidnapping “requires a degree of

asportation not found in the definition of false imprisonment. Indeed, false imprisonment

can occur with any movement or no movement at all.” (People v. Reed, supra, 78

Cal.App.4th at p. 284, fn. omitted.) Here, there was no evidence the offense committed

was less than kidnapping.

       Defendant was waiting just outside De Los Santos’s condominium in his vehicle.

Barker had been summoned to De Los Santos’s condominium after the robbery. It is

reasonably deduced that defendant was also summoned by De Los Santos, or if defendant

stayed, he was advised to wait in his car. De Los Santos walked the victim to the car at

gunpoint, after clearly beating him up. Once inside the car, defendant drove De Los


                                              13
Santos and the victim to a remote part of the desert. Based on this evidence alone, it was

clear that defendant aided and abetted a kidnapping. There was no evidence of false

imprisonment, as the victim was driven, against his will, to a remote area of the desert.

       Defendant contends that based on “pervasive ambiguity” about his knowledge of

and participation in the victim’s kidnapping, an instruction on false imprisonment was

required. He specifically argues that the victim consented to going in the car with him

and De Los Santos. He points to the evidence that De Los Santos assured the victim that

he was going to take him home and that the victim would be okay as long as he stayed

quiet. No reasonable person would consent to going with a person who he had just been

beat by, and who was holding a gun.

       Further, defendant argues that the jury could have reasonably determined that

defendant believed the victim had voluntarily gotten into the car with De Los Santos.

Such argument is completely without any merit. Defendant was waiting outside De Los

Santos’s apartment in his car. De Los Santos then walked the victim to the car holding a

gun. Thereafter, defendant drove them to a remote desert where De Los Santos shot the

victim in the head. The only reasonable determination was a kidnapping.

       Defendant points to the evidence that he was trying to convince the victim to tell

the truth during the ride to the desert, and that he was telling De Los Santos not to hurt

the victim, as evidence that the lesser offense of false imprisonment should have been

given to the jury. This showed that the victim was “a voluntary participant in the

discussion.” To the contrary, this evidence showed that defendant was aware that De Los




                                             14
Santos was going to hurt the victim. Despite this knowledge, he continued to drive them

to a remote desert area.

       Finally, defendant claims the jury could have found that there was a reasonable

doubt whether defendant knew that the victim was kidnapped at the outset of the drive,

and could view the evidence as showing defendant aided and abetted false imprisonment

when they got out of the car in the desert. As set forth at length ante, the only reasonable

interpretation of the evidence was that defendant was involved in the kidnapping and that

no reasonable person would conclude that the victim consented to go in the car with De

Los Santos and defendant. No instruction on false imprisonment was supported by the

evidence. As such, defendant did not receive ineffective assistance of counsel by his

counsel failing to request the instruction.

              3.     INSTRUCTION WITH LESSER OFFENSE INSTRUCTIONS FOR

                     MURDER

       It is without dispute that defendant was charged with first degree murder. It is

well established that the crimes of second degree murder and voluntary manslaughter are

lesser included offenses of first degree murder. (People v. Seaton (2001) 26 Cal.4th 598,

672 [second degree murder]; People v. Randle (2005) 35 Cal.4th 987, 994, overruled on

other grounds in People v. Sarun Chun (2009) 45 Cal.4th 1172 [manslaughter].) Second

degree murder is “an unpremeditated killing with malice aforethought.” (Seaton, at p.

672.) Voluntary manslaughter is an intentional, unlawful killing committed without

malice aforethought. (People v. Rios (2000) 23 Cal.4th 450, 458.) Defendant insists that

since he was charged with first degree murder in the information, the trial court should


                                              15
have sua sponte instructed the jury on the lesser offenses of first degree murder despite

the People proceeding only a felony murder theory.

       Here, we need not decide whether the trial court had a sua sponte duty to instruct

the jury on the lesser offense instructions of second degree murder and manslaughter, as

the failure to instruct the jury with these lesser offenses was clearly harmless.

       “The erroneous failure to instruct on a lesser included offense generally is subject

to harmless error review under the standard of People v. Watson (1956) 46 Cal.2d 818, at

pages 836-837. Reversal is required only if it is reasonably probable the jury would have

returned a different verdict absent the error or errors complained of.” (People v. Rogers

(2006) 39 Cal.4th 826, 868, fn. omitted.) “In applying this test, we are instructed to

‘focus[] not on what a reasonable jury could do, but what such a jury is likely to have

done in the absence of the error under consideration. In making that evaluation, an

appellate court may consider, among other things, whether the evidence supporting the

existing judgment is so relatively strong, and the evidence supporting a different outcome

is so comparatively weak, that there is no reasonable probability the error of which the

defendant complains affected the result.’” (People v. Anderson (2006) 141 Cal.App.4th

430, 450.) “When the evidence points indisputedly to a homicide committed in the

course of a felony . . . the court is justified in advising the jury that the defendant is either

innocent or guilty of first degree murder.” (People v. Turner (1984) 37 Cal.3d 302, 327,

overruled on other grounds in People v. Anderson (1987) 43 Cal.3d 1104, 1115.)




                                               16
       Here, the evidence that defendant aided and abetted the kidnapping of the victim,

and that the murder of the victim was committed during the course of the kidnapping,

was overwhelming. Defendant was waiting in a car right outside De Los Santos’s

apartment. De Los Santos had called Barker back to his apartment after the robbery at

De Los Santos’s condominium, and the jury could reasonably conclude that De Los

Santos also called defendant or had instructed defendant to wait in his car. De Los

Santos walked the victim to defendant’s waiting car while holding a handgun. Defendant

told Barker he drove the victim and De Los Santos out to the desert. Although defendant

stated that he tried to convince De Los Santos not to hurt the victim, defendant continued

to drive them out to the desert. Defendant never indicated that De Los Santos forced him

to keep driving. Further, defendant clearly knew De Los Santos intended to harm the

victim, yet he continued to drive them out to a remote area of the desert.

       Once in the desert, they exited the car and De Los Santos shot the victim in the

head. Defendant actively participated in the kidnapping of the victim. The evidence of

felony murder was overwhelming. Defendant’s only defense was that he was not

involved at all—not that he did not believe De Los Santos kidnapped the victim. There

was strong evidence presented that defendant was involved, including Prieto’s and

Barker’s testimonies, which were corroborated by other evidence.

       Defendant relies on this court’s case People v. Campbell (2015) 233 Cal.App.4th

148 (Fourth Dist., Div. Two) (Campbell) to support his claim that the failure to instruct

on the lesser offense of second degree murder and voluntary manslaughter was

prejudicial. In Campbell, we concluded that the jury should have been instructed on the


                                            17
lesser offenses of second degree murder and voluntary manslaughter for first degree

murder (prosecuted under the theory of felony murder only) based on a robbery, because

there was substantial evidence from which the jury could have concluded that the

defendant (who was the shooter) did not aid and abet the robbery that led to the shooting.

(Id. at pp. 163-165.) We found the instructional error was prejudicial.

       First, we rejected the argument that the fact that the jury found the defendant

guilty of the special circumstance of murder during the commission of robbery rendered

the instructional error harmless. We found that when the jury is only instructed on felony

murder, the additional finding of the special circumstance is compelled by that decision.

Further, that “the special circumstance finding may indicate nothing more than that the

jury did not want to acquit the defendant of murder, not that they found the killing was

first degree felony murder.” (Campbell, supra, 233 Cal.App.4th at p. 168.)

       Several California Supreme Court cases were then examined, wherein the

Supreme Court found the failure to instruct with the lesser offenses of murder, rather than

only on felony murder, was harmless. (Campbell, supra, 233 Cal.App.4th at pp. 167-

172.) We discerned the following from these cases: “It is clear from our examination of

the cited cases that the rule . . . cannot be applied without consideration of the factual

context and the other instructions given to the jury. In each case, the jury was offered

alternative grounds for finding first degree murder. Significantly, it was patently clear

from the facts in each case that an underlying felony had been committed by the

perpetrator of the murder. In three of the cases the only defense raised was that it was not

the defendant who committed the crimes.” (Id. at p. 172.)


                                              18
       While here the jury was not given an alternative theory to convict defendant of

first degree murder, it was clear from the evidence that De Los Santos kidnapped the

victim and that defendant aided and abetted the kidnapping by driving them out to the

remote desert. Finally, there was absolutely no evidence—other than defendant’s

speculation on appeal—that he believed the victim consented to driving to the remote

desert area. Moreover, like the cases examined by this court in Campbell, defendant’s

only defense was that he was not involved in any way. Any conceivable errors

occasioned by the trial court’s failure to sua sponte instruct the jury with the lesser

offenses of voluntary manslaughter or second degree murder was clearly harmless.

       B.     CALCRIM NO. 1215—KIDNAPPING INSTRUCTION

       Defendant contends that his due process rights and right to a fair trial were

implicated due to the failure of the trial court to completely instruct the jury on

kidnapping.

       Defendant did not object to the trial court’s giving of CALCRIM No. 1215. We

set forth the kidnapping instruction, in part, ante. The jury was further instructed on

consent to kidnapping that, “In order to consent, a person must act freely and voluntarily

and know the nature of the act.” Further, “The defendant is not guilty of kidnapping if

the other person consented to go with the defendant. [¶] The other person had consented

if he: [¶] 1. Freely and voluntarily agreed to go with or be moved by the defendant; [¶]

2. Was aware of the movement; and [¶] 3. Had sufficient maturity and understanding to

choose to go with the defendant. [¶] The People have the burden of proving beyond a

reasonable doubt that the other person did not consent to go with the defendant. If the


                                              19
People have not met this burden, you must find the defendant not guilty of this crime—or

for the special circumstances not true.”

       The trial court did not give the bracketed part of CALCRIM No. 1215 that

provides as follows: “The defendant did not actually and reasonably believe that the

other person consented to the movement.” The instruction further provides a definition

of good faith belief in consent, which was not given to the jury as follows: “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.”

       “A ‘criminal defendant is entitled to adequate instructions on the defense theory of

the case’ if supported by the law and evidence.” (People v. Eid (2010) 187 Cal.App.4th

859, 879.) “[T]he defendant’s reasonable good faith belief that the victim has voluntarily

consented to accompany him constitutes a complete defense to the charge of

kidnapping.” (People v. Isitt (1976) 55 Cal.App.3d 23, 28.) The trial court has a sua

sponte duty to instruct on the defendant’s reasonable and actual belief in the victim’s

consent to go with the defendant, if supported by the evidence. (People v. Greenberger

(1997) 58 Cal.App.4th 298, 375; see Bench Notes to CALCRIM No. 1215.)

       Here, there was no evidence supporting that defendant reasonably and actually

believed the victim consented to getting into defendant’s car with De Los Santos. The

evidence established that De Los Santos had a handgun in his hand while he walked the

victim to defendant’s waiting car. It was no coincidence that defendant was waiting

outside in his car. Clearly, De Los Santos had called or told defendant to wait in his car


                                            20
outside. Defendant told Barker that he drove the victim and De Los Santos to a remote

part of the desert. He insisted that during the drive he tried to convince the victim to tell

the truth. Defendant also stated that the victim kept asking De Los Santos not to hurt

him. Even if the jury believed defendant tried to convince De Los Santos not to hurt the

victim, the evidence clearly established the victim was not free to leave the car that was

being driven by defendant to the remote desert.

       Defendant insists that the victim consented to going with defendant and De Los

Santos because they were all friends. He claims they were just “driving around” talking

about the robbery at De Los Santo’s house, and that defendant did not have any reason to

believe that the victim was an unwilling passenger. There is simply nothing in the record

to support such claims. Defendant was waiting in a car near De Los Santos’s

condominium when the victim was taken to the car by gunpoint. The evidence

establishes they drove to a remote area in the desert. No reasonable person would

consider that the victim consented to this movement. There was no instructional error.

       C.     INEFFECTIVE ASSISTANCE OF COUNSEL—STIPULATION TO

              PRIOR FELONY CONVICTION AND PRISON TERM

       Defendant contends that his counsel provided ineffective assistance of counsel by

stipulating to the fact he had suffered a prior felony conviction of possession for sale of a

controlled substance and that he was serving a prison term for the conviction;

consequently, the trial court erroneously denied defendant’s motion for new trial.




                                              21
              1.     ADDITIONAL FACTUAL BACKGROUND

       After defendant was convicted, he retained counsel to file a motion for new trial.

Retained counsel complained that trial counsel had stipulated defendant had a prior

felony conviction and that defendant had spent time in prison. There was no limiting

instruction given. Retained counsel proclaimed, “When I inquired of defense counsel

why on Earth the jury would be told, in the guilt phase, that defendant was a felon who

went to prison, counsel wrote that ‘I have no idea.’ When I inquired of the prosecutor, he

said it was to explain why the police could not execute a warrant at his residence [which

is of course, not a jury question].” Defendant’s retained counsel argued it was highly

prejudicial for the jury to be advised defendant was a convicted felon. Retained counsel

argued that the motion for new trial should be granted on the grounds of ineffective

assistance of counsel.

       The People filed a response. First, the People noted that the prior serious felony

alleged pursuant to section 667, subdivision (a)—a robbery—was bifurcated from the

trial proceedings. Further, the People argued the admission of defendant’s controlled

substance conviction was not prejudicial under Strickland, supra. There was other

testimony regarding defendant’s drug use.

       The trial court noted that it had read the motion for new trial, the People’s

opposition and the reply to the opposition. The trial court assumed there was error in

allowing the stipulation to a felony conviction. However, the trial court did not see how

there was prejudice. The trial court found Barker’s testimony was compelling and that it

was corroborated. The trial court concluded that there was “overwhelming, powerful


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evidence of [defendant]’s guilt, and therefore, even evaluating the evidence

independently from what the jury found, I find that there is no basis for a new trial.”

              2.     INEFFECTIVE ASSISTANCE OF COUNSEL

       As previously stated, in order to show ineffective assistance of counsel, a

defendant must demonstrate both deficient performance under an objective standard of

professional reasonableness and prejudice under a similarly objective standard of

reasonable probability of an adverse effect on the outcome. (People v. Waidla, supra, 22

Cal.4th at p. 718.) “If the defendant fails to establish the prejudice component of the

ineffectiveness claim, a reviewing court need not determine whether counsel’s

performance was deficient.” (People v. Hayes (1990) 52 Cal.3d 577, 608.)

       Defendant cannot show prejudice. Here, there was other evidence showing that

defendant was a prolific drug user. Prieto testified that defendant was heavily involved in

drug sales. Arthur testified that she and defendant used drugs, and that at the time of the

victim’s disappearance, defendant was working with De Los Santos selling drugs. The

fact the jury was advised that defendant had a drug conviction did not give the jury a

different impression of him. Moreover, as previously stated, there was ample evidence

showing defendant aided and abetted the kidnapping of the victim and that the victim was

murdered during the commission of the kidnapping. Defendant has failed to show he

received ineffective assistance of counsel.




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       D.     INEFFECTIVE ASSISTANCE OF COUNSEL—FAILURE TO OBJECT

       Defendant contends that his counsel was ineffective for failing to object to Prieto’s

“prejudicial” hearsay testimony and “other lapses of advocacy.” We have set forth the

standard of review for ineffective assistance of counsel claims, ante.

       Defendant fails to acknowledge in his opening brief that prior to trial the People

filed a brief seeking to admit statements made to Prieto and Barker by defendant and De

Los Santos. The trial court addressed the request prior to trial. Defense counsel argued

that the statements were not admissible because they were clearly hearsay; De Los Santos

was not a party to the proceeding. Further, his statements to Prieto and Barker were

unreliable. The trial court felt that defendant’s statements were not testimonial. The trial

court found that Evidence Code section 1230 was applicable. The trial court inquired of

Prieto prior to her testimony. She advised the trial court that De Los Santos told her that

he killed the victim. She did not remember if De Los Santos mentioned defendant being

involved. She was allowed to testify.

       Defendant’s claim in his opening brief, that his counsel failed to object to the

hearsay statements, is devoid of merit. A complete review of the record shows that his

counsel did object and was certainly not obligated to object during the trial. (People v.

Diaz (1992) 3 Cal.4th 495, 562 [failure to object to admissible evidence does not

constitute ineffective assistance when to do so would have been futile].) Defendant

claimed that he was prejudiced by “counsel’s failure to object to prejudicial hearsay from

Ashley Prieto” but he provides no further argument as to the prejudice he received. Nor

does he provide detailed facts to support his claim that his counsel’s “other lapses in


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advocacy” resulted in prejudice.5 Once again, defendant has failed to show he received

ineffective assistance of counsel.

                                          DISPOSITION

       We affirm the judgment in its entirety.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS



                                                        MILLER
                                                                                            J.


We concur:


HOLLENHORST
                       Acting P. J.


KING
                                     J.




       5  After the People noted in its respondent’s brief that defendant’s counsel had
objected to Prieto’s testimony prior to trial, defendant made additional arguments in his
reply brief—that counsel had preserved the hearsay objection and that such hearsay was
prejudicial. We will not consider new arguments made in the reply brief, especially in
the situation here where the record showed that counsel had objected, e.g., he cannot
show good cause for failing to raise a proper claim in his opening brief. (See People v.
Failla (2006) 140 Cal.App.4th 1514, 1519, fn. 3 [Fourth Dist., Div. Two].)


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