Opinion
E054747
02-14-2013
THE PEOPLE, Plaintiff and Respondent, v. DOUGLAS SCOTT ENBORG, Defendant and Appellant.
Richard de la Sota, 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, James D. Dutton, Michael T. Murphy and Charles C. Ragland, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super.Ct.No. FSB1002762)
OPINION
APPEAL from the Superior Court of San Bernardino County. Duke D. Rouse, Judge. (Retired judge of the San Bernardino Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed in part; reversed in part.
Richard de la Sota, 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, James D. Dutton, Michael T. Murphy and Charles C. Ragland, Deputy Attorneys General, for Plaintiff and Respondent.
I
INTRODUCTION
All statutory references are to the Penal Code unless stated otherwise.
A jury convicted defendant Douglas Scott Enborg of five crimes: kidnapping; simple battery on a cohabitant; false imprisonment by violence; making criminal threats; and assault likely to produce great bodily injury. (§§ 207, 236, 245, 273.5, and 422.) The jury also found true that defendant had sustained two strike convictions, two felony convictions, and two convictions for which he served separate prison terms. (§§ 667, subds. (a)-(i), and 667.5, subd. (b).) On the principal term of aggravated kidnapping, the court sentenced defendant to an aggregate term of 32 years to life.
On appeal, defendant challenges the sufficiency of the evidence for his convictions on counts 1, 3, and 4 for kidnapping, false imprisonment, and making criminal threats, and also the instruction given on count 1. We hold there was sufficient evidence on all counts. Additionally, because the jury was instructed on both kidnapping and false imprisonment, based on the same facts, no additional instruction was required on false imprisonment as a lesser included offense of kidnapping. The People concede—and we agree—the conviction on count 3 for false imprisonment should be reversed. Otherwise, we affirm the judgment.
II
STATEMENT OF FACTS
1. Jane Doe's Testimony at Trial
Jane Doe met defendant in February 2010 and they were involved in a sexual relationship while maintaining separate residences. She characterized their relationship before June 27, 2010, as not perfect but not violent. Jane Doe testified as a reluctant witness, blaming herself and offering justifications for defendant's conduct.
On June 26, 2010, Jane Doe went to defendant's residence to help with a move and to have a conversation with defendant about their relationship. Jane Doe brought two pieces of luggage because she was planning to stay for a week. The next day, they shared a bottle of Captain Morgan rum and had sex multiple times, during which defendant choked and bit Jane Doe and pulled her hair. Then they engaged in an angry conversation about whether defendant was cheating on Jane Doe. Jane Doe threatened to leave the house and find the other women. Defendant grabbed her by the shirt because she had stuffed his wallet and keys in her brassiere. Jane Doe claimed she returned to the house willingly where they continued to argue.
Bruises and scratches were a common aspect of their sexual interaction.
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Jane Doe contended that she deliberately intended to antagonize defendant and provoke a reaction. Jane Doe locked herself in the bedroom and screamed for help from the window so a neighbor would respond. She falsely reported to the police that defendant threatened to "kick your ass" to stop her from screaming.
Jane Doe admitted the police photographed her crying with a scraped elbow on June 27, 2010. She claimed she had injured her elbow when she fell while running in high heels, eluding defendant who was trying to recover his wallet and keys. The police also photographed injuries to her arm and back. She claimed an injury to her leg was razor burn. She described other injuries as "natural bruising." She thought she had injured her shin by tripping and falling while drinking.
When Jane Doe was interviewed by the police, she maintained she did not feel threatened or afraid for her life. Instead, she had asked defendant to prevent her from getting in trouble when she had been drinking. As retaliation for him cheating on her, Jane Doe had told the police defendant had caused her injuries although he had not really done so. She exaggerated what she told the police because she wanted defendant to be arrested but she did not want to press charges against him.
2. Testimony of the Conway Neighbors
John Conway, defendant's neighbor, testified he observed an altercation outside the house between defendant and Jane Doe. While they argued, defendant grabbed her by the hair and dragged her violently into the house, slamming her head on a wall. Conway could see the shadows of figures fighting inside the house and he heard loud voices. Jane Doe pushed open a screen window and screamed for help, that defendant was "[g]oing to kill me, something to that effect." Conway's wife called the police. After Jane Doe climbed out the window, Conway's son ran across the street and intervened between defendant and Jane Doe.
3. Testimony of Officer Newton
A police officer, Roael Newton, testified that, when he contacted Jane Doe, she was scared and crying. She denied having been drinking. She repeatedly stated that defendant had "banged her head against the wall, he choked her, and he threatened to kick her ass." When she had fled outside the house, defendant had grabbed her by the hair and throat and dragged her inside, hitting her head on the door frame. She tried to resist but he managed to pull her inside.
They struggled in the house. Jane Doe was kicking, screaming, biting, and hitting but defendant overpowered her. He hit her head on the floor and bit her lower back. He went outside to retrieve her luggage and warned, "no one is going to know that you're here," so she felt she had to escape. She tried to scream for help and climb out the bedroom window but he blocked her. She screamed again and saw her neighbors were coming to help. Defendant also choked her, covered her mouth, and threatened her, to "shut up before I kick your ass and make you not scream anymore." Jane Doe told the officer she was frightened about what defendant might do.
Officer Newton observed that Jane Doe had abrasions on her elbows, knees, shin, and lower back. When he asked her about prosecuting defendant, she said she wanted defendant to go to jail for a year or so.
III
KIDNAPPING
The necessary movement or "asportation" element of kidnapping requires forcibly carrying away a victim against her will. (§ 207, subd. (a).) In his opening brief, defendant recites the principle that the asportation required for a simple kidnapping is less stringent than that required for an aggravated kidnapping. (People v. Rayford (1994) 9 Cal.4th 1, 14.) Defendant argues that the short distance he dragged Jane Doe—from outside a residence to indoors—cannot constitute substantial evidence required for simple kidnapping. No specific distance was offered in evidence but the testimony suggests it was only a matter of feet, which defendant contends was insignificant.
An appellate court reviews the record in the light most favorable to the judgment below. (People v. Johnson (1980) 26 Cal.3d 557, 576-578.) The test is whether substantial evidence supports the verdict, not whether the evidence proves guilt beyond a reasonable doubt. (People v. Crittenden (1994) 9 Cal.4th 83, 139.) It is the jury's exclusive province to assess the credibility of the witnesses, resolve conflicts in the testimony, and weigh the evidence. (People v. Sanchez (2003) 113 Cal.App.4th 325, 330.) The fact that circumstances can be reconciled with a contrary finding does not warrant reversal of the judgment. (People v. Bean (1988) 46 Cal.3d 919, 932-933.) Ultimately, a defendant "bears an enormous burden" when challenging the sufficiency of the evidence. (Sanchez, at p. 330.)
Kidnapping requires that the perpetrator move the victim in a substantial manner by use of force or fear, without the person's consent. (People v. Arias (2011) 193 Cal.App.4th 1428, 1434-1435; see People v. Martinez (1999) 20 Cal.4th 225, 235.) In assessing whether the movement of the victim was substantial rather than slight or trivial, "the trier of fact may consider more than actual distance." (Ibid.)The jury may consider the totality of the circumstances surrounding the movement, including such factors as whether the movement increased the risk of harm to the victim, decreased the likelihood of detection, increased the danger inherent in a victim's foreseeable attempts to escape, or enhanced the attacker's opportunity to commit additional crimes. (Id. at p. 237.) In addition, the jury should consider whether the movement was merely incidental to an associated crime committed by the defendant. (Ibid.)
In Arias, the court found that the movement of the victim 15 feet from outside to inside his apartment "increased his risk of harm in that he was moved from a public area to the seclusion of his apartment" and made it "less likely defendant would have been detected if he had committed an additional crime. These factors support the asportation requirement for kidnapping. (See People v. Shadden (2001) 93 Cal.App.4th 164, 168-169, [movement of nine feet to the back of a store meets asportation requirement of kidnapping]; People v. Smith (1995) 33 Cal.App.4th 1586, 1594 [movement of victim from driveway 'open to street view' to camper increased risk of harm to victim].) [¶] . . . Unlike aggravated kidnapping, asportation for simple kidnapping does not require a finding of an increase in harm to the victim or other contextual factors. [Citations.] . . . the increase of harm and other contextual factors may be considered in determining whether asportation for simple kidnapping has been proved. [Citation.]" (People v. Arias, supra, 193 Cal.App.4th at pp. 1435-1436.)
Here, the record amply supports the jury's kidnapping verdict. Officer Newton testified that Jane Doe told him she had walked out of the door and "was walking down the sidewalk" when defendant grabbed her and forced her back inside the house. Defendant moved Jane Doe several feet against her will. In addition, by forcibly moving Jane Doe from an outside public area into the house, defendant significantly enhanced his opportunity to commit additional crimes and decreased the likelihood of observation by neighbors. The movement was not merely incidental to assaulting Jane Doe, as argued by defendant. (People v. Salazar (1995) 33 Cal.App.4th 341, 348 [risk of harm increased where the defendant moved victim from outside walkway of motel to room]; People v. Moreland (1970) 5 Cal.App.3d 588, 594 [moving victims from front lawn into house substantially increased risk of violence].) We hold sufficient evidence supported the kidnapping conviction. Additionally, as we discuss below, the court did not need to instruct the jury on false imprisonment as a lesser included offense of kidnapping.
IV
FALSE IMPRISONMENT
We recognize that defendant contends his kidnapping conviction should be reversed because the court should have instructed that false imprisonment is a lesser included offense of kidnapping. Because defendant was separately charged and convicted of false imprisonment based on the same conduct supporting the kidnapping conviction, and because false imprisonment is a lesser included offense of kidnapping, the People assert his false imprisonment conviction should be reversed. (People v. Binkerd (2007) 155 Cal.App.4th 1143, 1147 ["A defendant cannot be convicted of both an offense and a lesser offense necessarily included within that offense, based upon his or her commission of the identical act."].) However, because there was sufficient evidence of kidnapping, no additional instruction on false imprisonment was required.
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 she does not wish to remain, or to go where she does not wish to go. (People v. Reed (2000) 78 Cal.App.4th 274, 280.) False imprisonment is a lesser included offense of simple kidnapping, the only difference being the element of asportation necessary to prove kidnapping. (People v. Magana (1991) 230 Cal.App.3d 1117, 1120-1121; People v. Gibbs (1970) 12 Cal.App.3d 526, 547; see 1 Witkin & Epstein, Cal. Criminal Law (4th ed. 2012) Crimes, § 273, pp. 1121-1122.)
Here the prosecutor relied on the same acts of defendant to establish both the kidnapping charge and the false imprisonment charge. With respect to the kidnapping charge, the prosecutor argued that defendant's acts of grabbing Jane Doe by the hair and forcibly moving her into the house proved the element of kidnapping which requires the defendant to take or detain another person by using force or instilling fear. (See § 207, subd. (a); CALCRIM No. 1215.) The prosecutor also identified these same acts, in addition to others, as proof that defendant unlawfully restrained Jane Doe's liberty, a required element of false imprisonment. (See § 236; CALCRIM No. 1240.) The jury was instructed on both kidnapping and false imprisonment on the same facts but elected to convict on both offenses. The trial court's decision under section 654 to stay execution of the sentence imposed for the false imprisonment conviction reflects that it too believed both offenses rested on the same acts of defendant. (See § 654 [prohibiting punishment for a single act under more than one provision of law].)
Under these circumstances the kidnapping conviction stands but, the false imprisonment conviction should be vacated. (People v. Magana, supra, 230 Cal.App.3d at pp. 1120-1121; People v. Ratcliffe (1981) 124 Cal.App.3d 808, 819-821.)
V
MAKING CRIMINAL THREATS
Defendant finally contends insufficient evidence supported his conviction for making a criminal threat. To prove a violation of section 422, the following elements must be established: (1) that the defendant willfully threatened to commit a crime which will result in death or great bodily injury to another person, (2) that the defendant made the threat with the specific intent that the statement is to be taken as a threat, even if there is no intent of actually carrying it out, (3) that the threat was on its face and under the circumstances in which it was made so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat, (4) that the threat actually caused the person threatened to be in sustained fear for his or her own safety, and (5) that the threatened person's fear was reasonable under the circumstances. (People v. Toledo (2001) 26 Cal.4th 221. 227-228.)
Although defendant concedes there was substantial evidence that he threatened Jane Doe, and that his threat caused her to fear for her safety, he argues she did not experience "sustained fear," i.e., fear that extends "beyond what is momentary, fleeting, or transitory." (People v. Allen (1995) 33 Cal.App.4th 1149, 1156.) For example, defendant asserts that, because Jane Doe did not call the police, she was not in sustained fear. But the neighbors called police when Jane Doe was screaming for help as she tried to escape through a bedroom window. The jury was free to make its own reasonable inferences to conclude that Jane Doe did not stop to call the police because she was screaming for the neighbors to help her and trying to flee to safety. Although defendant speculates on other possible inferences a jury might have made, a reviewing court does not reweigh the evidence and draw its own conclusions about the credibility of witnesses and the significance of evidence. (People v. Cochran (2002) 103 Cal.App.4th 8, 13.) A reviewing court must draw all reasonable inferences from the evidence in support of the judgment, and affirm the jury's verdict if supported by substantial evidence even if other evidence supports a contrary conclusion. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 947.)
Jane Doe reported to the police, immediately after the incident, that defendant, while choking her and smothering her mouth, threatened her by saying something to the effect of, "shut up before I kick your ass and make you not scream anymore." After defendant retrieved Jane Doe's luggage, he told her, "no one is going to know that you're here." Conway saw Jane Doe trying to crawl out a window while screaming for help because defendant was trying to hurt or kill her. After the police arrived, Jane Doe was crying and appeared scared and frightened.
The jury could reasonably conclude that Jane Doe experienced sustained fear. Even if the evidence arguably supported other inferences, it does not undermine the jury's verdict. (People v. Farnum (2002) 28 Cal.4th 107, 143.) Therefore, the jury's verdict should not be disturbed on appeal.
VI
DISPOSITION
We reverse the conviction on count 3 for false imprisonment. Otherwise, we affirm the judgment.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J.
We concur: HOLLENHORST
Acting P. J.
KING
J.