Opinion
H045433
06-23-2020
THE PEOPLE, Plaintiff and Respondent, v. ERVEY JESUS HERNANDEZ LUNA, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Monterey County Super. Ct. No. SS161907)
A jury convicted defendant Ervey Luna of kidnapping; making criminal threats; inflicting corporal injury on a spouse or cohabitant; and assault with force likely to cause great bodily injury. Defendant contends the trial court gave an incomplete jury instruction on kidnapping, imposed multiple punishments for the same conduct, and incorrectly calculated his presentence custody credit. We agree defendant is due additional custody credit. We will therefore order the abstract of judgment amended to accurately reflect presentence custody credit, and otherwise affirm the judgment.
I. BACKGROUND
Defendant and his girlfriend, Jane Doe, argued at home one morning in the fall of 2016. The argument continued as they drove to the store with their infant daughter in the backseat. When they got there, Doe went in to buy milk then returned to the car, assuming they would be going home. But after driving toward their house, defendant exited the freeway, stopped the car on the roadside, and dragged Doe out by her hair. He threw her to the ground and punched her in the back of the head. Doe pleaded with him to take her home but he refused, saying he was tired of her and was "going to do something about it." He pulled her back inside the car by her hair and drove off.
He drove for another 15 or 20 minutes, on isolated rural roads, yelling at Doe that he was going to kill her and was looking for a tree to hang her. When he parked, Doe jumped out and tried to flag down passing cars, without success. She decided to get back in the car because her daughter was still inside. Defendant told her she "fucked up this time," and he was going to kill her. He held onto her arm to prevent another escape. After driving for another five minutes or so, he parked and again dragged Doe from the car. He punched and kicked her as she lay on the ground. Back inside the car, he choked her in the backseat. Doe was eventually able to escape. She locked defendant out of the car and drove away with the baby.
Defendant was charged with kidnapping (Pen. Code, § 207, subd. (a); making criminal threats (Pen. Code, § 422(a)); inflicting corporal injury on a spouse or cohabitant (Pen. Code, § 273.5(a); assault with force likely to cause great bodily injury (Pen. Code, § 245, subd. (a)(4); and child endangerment (Pen. Code, § 273a, subd. (b)). He testified at trial and denied assaulting or threatening Doe, or even taking her on a long car ride. Defense counsel argued Doe made up the story to exact revenge for defendant communicating with other women on social media and because she wanted to retain custody of their child.
The jury found defendant guilty on all charges except child endangerment. He was sentenced to four years, eight months in prison (the lower term of three years for the kidnapping, a consecutive year for inflicting corporal injury, a consecutive eight months for the criminal threats, and a concurrent two-year term for the assault).
II. DISCUSSION
Defendant contends the trial court gave an incomplete jury instruction on kidnapping, violated Penal Code section 654 by punishing him more than once for the same conduct, and incorrectly calculated his custody credits.
A. JURY INSTRUCTIONS
Kidnapping consists of using force or fear to move someone without consent and for a " ' "substantial distance."' " (Pen. Code, § 207, subd. (a); People v. Arias (2011) 193 Cal.App.4th 1428, 1434.) To decide whether the distance is substantial, "a trier of fact may consider 'not only the actual distance the victim is moved, but also such factors as whether that movement increased the risk of harm above that which existed prior to the asportation, decreased the likelihood of detection, and increased both the danger inherent in a victim's foreseeable attempts to escape and the attacker's enhanced opportunity to commit additional crimes.' " (Ibid., citing People v. Martinez (1999) 20 Cal.4th 225, 237, overruled on a different ground by People v. Fontenot (2019) 8 Cal.5th 57, 70.)
When kidnapping is charged together with another crime that was concurrently committed, an additional factor to be considered in evaluating the substantiality of movement is whether the movement was "incidental" to committing an associated crime. (People v. Martinez, supra, 20 Cal.4th at p. 237.) An associated crime is "any criminal act the defendant intends to commit where, in the course of its commission, the defendant also moves a victim by force or fear against his or her will." (People v. Bell (2009) 179 Cal.App.4th 428, 438-439.) If the victim was moved solely to accomplish a different crime, the defendant cannot properly be convicted of both that crime and kidnapping, because the intent required for kidnapping would be lacking. (Id. at p. 437.) Defendant contends the associated crime here is making criminal threats. He argues that moving the victim was incidental to threatening her because he took her to remote areas solely to make his threats to kill her and hang her from a tree more credible. He notes that an element of the criminal threats offense is an "immediate prospect of execution of the threat." (Pen. Code, § 422, subd. (a).)
Using CALCRIM No. 1215, the trial court instructed the jury on the elements of kidnapping as follows: "To prove that the defendant is guilty of this crime, the People must prove that one, the defendant took, held, or detained another person by using force or by instilling reasonable fear; two, using that force or fear, the defendant moved the other person or made the other person move a substantial distance; three, the other person did not consent to the movement; four, the defendant did not actually and reasonably believe that that other person consented to the movement. [¶] In order to consent, a person must act freely and voluntarily and know the nature of the act. [¶] Substantial distance means more than slight or trivial distance. In deciding whether the distance was substantial, you must consider all of the circumstances relating to the movement. []"
Defendant asserts the trial court erred by not including the following optional language from the form kidnapping instruction, designed for use when an associated crime is charged: "[I]n addition to considering the actual distance moved, you may also consider other factors such as [whether the distance the other person was moved was beyond that merely incidental to the commission of [the associated crime].]" (CALCRIM No. 1215.) We note that the optional language does not add a new element, but expands the instruction's definition of "substantial distance." (Id.)
Defendant did not request the additional language in the trial court nor object to the instruction given. He asserts on appeal that the trial court had a sua sponte duty to include the language. (See People v. Bell, supra, 179 Cal.App.4th 428, 434 [sua sponte duty to give associated crime instruction where supported by the evidence].) The Attorney General argues that the court had no sua sponte instructional duty because a victim need not be moved to complete the offense of making criminal threats and, as a result, it is not properly considered an associated crime to kidnapping.
The definition of associated crime is not so restrictive as to encompass only crimes where movement of the victim is an element. It is a far broader concept, extending to any criminal act where the defendant moves the victim by force or fear in the course of its commission. (People v. Bell, supra, 179 Cal.App.4th at p. 439.) Applying that broad understanding, we agree with defendant that the criminal threats charge here qualifies as an associated crime. In the course of making criminal threats, defendant moved the victim using force and fear. The trial court therefore should have included the associated crime language in its kidnapping instruction.
Having reached that conclusion, we must determine whether defendant was prejudiced by the error. The parties disagree about the appropriate standard for evaluating prejudice in this context. The Attorney General urges the more forgiving standard for state law error under People v. Watson (1956) 46 Cal.2d 818, 836. Defendant maintains this error is equivalent to failing to instruct on an essential element, triggering application of the constitutional standard under Chapman v. California (1967) 386 U.S. 18, 24 (which requires reversal unless the prosecution shows the error is harmless beyond a reasonable doubt). We need not resolve the issue in this case because even under the standard urged by defendant, he was not prejudiced. We are satisfied to the requisite level of certainty that had the jury been instructed to consider whether moving the victim was incidental to defendant conveying the seriousness of his threats, it would not have changed the verdict.
Movement attributable to the commission of a different, contemporaneous crime is but one factor in deciding whether the distance the victim was moved was "substantial" for purposes of the kidnapping charge. Even if instructed to consider whether driving the victim for miles on isolated roads was incidental to defendant's threats, no reasonable jury could have concluded the movement in this case was less than substantial, as required to prove kidnapping. Defendant drove the victim around against her will for at least an hour, traveling some 10 miles. He took away the victim's phone and at one point held her arm to prevent her escape. The primary defense theory was that the victim was lying, but the jury obviously found the victim's description of events credible. On those facts, it is not conceivable that a properly instructed jury would have concluded defendant only intended to threaten the victim and lacked the intent to commit kidnapping. The instructional error was therefore harmless beyond a reasonable doubt and reversal is not required.
The cases defendant relies on where the failure to give an associated crime instruction was found to be prejudicial only support our conclusion. In People v. Bell, supra, 179 Cal.App.4th 428, 433, the victim was taken in a car against her will as the defendant tried to flee police, but he stopped and let her out after traveling no more than 70 yards. Such a short distance would readily allow a jury to find that the movement was incidental to the other offenses charged, and is in stark contrast to the miles-long journey the victim described here. And People v. Delacerda (2015) 236 Cal.App.4th 282, 295 involved a victim who was moved 40 feet in the course of a robbery. The substantiality and incidental nature of the movement was a closer question in those cases, while here it was not.
B. MULTIPLE PUNISHMENTS
Defendant contends the prison terms imposed for the criminal threats, corporal injury, and assault counts violated Penal Code section 654 because in committing those crimes he had the same intent and objective he had in committing the kidnapping. Penal Code section 654 prohibits multiple punishments when a defendant is convicted of several crimes based on a single act (People v. Coleman (1989) 48 Cal.3d 112, 162) or when an indivisible course of conduct violates multiple statutes (People v. Brown (1958) 49 Cal.2d 577, 590-591). The ultimate purpose of Penal Code section 654 is to ensure punishment is commensurate with culpability. (People v. Trotter (1992) 7 Cal.App.4th 363, 367.) For that reason, "where a course of conduct is divisible in time it may give rise to multiple punishment[s] even if the acts are directive to one objective. [Citation.] If the separation in time afforded [] an opportunity to reflect and to renew [] intent before committing the next crime, a new and separate crime is committed." (People v. Louie (2012) 203 Cal.App.4th 388, 399.)
Application of section 654 requires the trial court to make factual determinations at the time of sentencing. (People v. Braz (1997) 57 Cal.App.4th 1, 10.) On review, we will uphold those findings so long as they are supported by substantial evidence. (Ibid.) That includes implied findings—those not expressly made by the trial court but necessary to support the conclusion that separate crimes were committed. (People v. Osband (1996) 13 Cal.4th 622, 730-731.)
Substantial evidence in the record supports the implied finding that defendant had time to reflect before committing each criminal act, such that each one can be considered a separate crime subject to separate punishment. The offenses took place over the course of an hour, during which time multiple assaults were separated by sustained periods of driving. Similarly, defendant made multiple threats separated by significant time. And the violent attacks and threats occurred well after he initially detained the victim in the car. There was clearly time for defendant to reflect and form new intent between the discrete acts. Multiple prison terms therefore do not violate Penal Code section 654. (See People v. Trotter, supra, 7 Cal.App.4th 363, 367 [Defendant separately sentenced for three assaults for firing three shots at a police officer; "Each shot required a separate trigger pull. All three assaults were volitional and calculated, and were separated by periods of time during which reflection was possible. None was spontaneous or uncontrollable. 'Defendant should ... not be rewarded where, instead of taking advantage of an opportunity to walk away from the victim, he voluntarily resumed his ... assaultive behavior.' "]
C. PRESENTENCE CUSTODY CREDIT
The parties agree that defendant spent 322 actual days in custody before he was sentenced, and was credited with 269 total days against his prison term. Defendant contends that was error. The Attorney General maintains the trial court correctly calculated the credit due because the days for which defendant was not given credit here were credited in another case. At sentencing, the trial court also pronounced sentence in an unrelated matter in which defendant had apparently previously pleaded no contest. The court imposed a 60-day county jail term in that case, to be served concurrently with the sentence imposed in this matter.
Citing Penal Code section 2900.5, subdivision (b) (credit for time in custody "shall be given only once for a single period of custody attributable to multiple offenses for which a consecutive sentence is imposed"), the Attorney General argues defendant is not entitled to credit for time spent in custody on the unrelated case. We initially note that the statute does not apply on its face, because the sentences here are concurrent, not consecutive. But regardless, the relevant distinction is whether the time spent in custody on the unrelated matter was presentence or postsentence. (People v. Kunath (2012) 203 Cal.App.4th 906, 908 ["under Penal Code section 2900.5[], when concurrent sentences are imposed at the same time for unrelated crimes, the defendant is entitled to presentence custody credits on each sentence, provided he is not also in postsentence custody for another crime."]
Here, defendant received concurrent sentences in both cases at the same time. He is therefore entitled to credit in both cases for all presentence days in custody. The correct presentence custody credit in this case is 370 days (322 actual days, plus 15 percent of that [48 days] in conduct credits under Penal Code section 2933.1). We will order the abstract of judgment amended accordingly.
III. DISPOSITION
The judgment is modified to correct the amount of presentence custody credit. The Clerk of the Superior Court is ordered to amend the abstract of judgment to reflect a total of 370 days in presentence custody credit (322 actual days, plus 48 days conduct credit), and transmit a copy of the amended abstract to the Department of Corrections and Rehabilitation.
As modified, the judgment is affirmed.
/s/_________
Grover, J.
WE CONCUR:
/s/_________
Greenwood, P. J. /s/_________
Danner, J.