Opinion
G043474
09-20-2011
THE PEOPLE, Plaintiff and Respondent, v. ERVIN ELI VEGA, Defendant and Appellant.
Robert Booher, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Barry Carlton and Felicity Senoski, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 06NF3241)
OPINION
Appeal from a judgment of the Superior Court of Orange County, Lance Jensen, Judge. Reversed in part and remanded.
Robert Booher, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Barry Carlton and Felicity Senoski, Deputy Attorneys General, for Plaintiff and Respondent.
A jury found defendant Ervin Eli Vega guilty of criminal threats (Pen. Code, § 422; all further statutory citations are to the Penal Code unless otherwise noted), stalking (§ 646.9, subd. (a)), burglary (§ 459), kidnapping (§ 207, subd. (a)) with personal use of a firearm (§ 12022.53, subd. (b)), and assault with a firearm (§ 245, subd. (b)). He contends there was insufficient evidence of asportation to sustain the kidnapping conviction, the trial court erred by failing to instruct the jury it could consider whether the movement of the victim for kidnapping was incidental to the commission of another crime, the court erred by failing to instruct on self-defense concerning the criminal threats charge, and the court erred by failing to stay punishment (§ 654) on the burglary charge. For the reasons expressed below, we conclude the trial court prejudicially erred by failing to instruct the jury it could consider whether the movement of the victim was incidental to the commission of another crime, which requires reversal of Vega's kidnapping conviction. But, we reject Vega's other arguments to overturn his remaining convictions.
I
FACTUAL AND PROCEDURAL BACKGROUND
Shirley and Vega met in 1992. They lived together as romantic partners, breaking up and reuniting on numerous occasions. In 2005, Vega lived in Shirley's Anaheim home as a tenant, and often helped Shirley work on her home remodeling project. In late 2005, Shirley asked Vega to move out because he was "increasingly possessive, jealous, controlling, [and] demanding," and he was "forceful and rude" to her and her family and friends. Shirley made it clear she no longer wanted a personal or intimate relationship with him. She described their status in January 2006 as "professional" and "just friends."
The trial transcript refers to the victim only as Shirley.
Shirley testified that on the evening of January 12, 2006, Vega came over to complete work on one aspect of her remodeling project. She informed him a male friend from Italy soon would be staying with her. Vega ended up spending the night, and Shirley allowed him to sleep in her bed, but they did not have sexual relations. She claimed Vega began acting strangely during the night, mentioning other women he had killed and warning her she needed protection from him. The next morning, as she was getting ready for work, Vega attacked her in the foyer, forced her into a bedroom, and raped her three times after tying her hands with a scarf. During the incident, she cried and screamed, and he threatened "'if you don't shut up, I'll kill you.'" She reported the incident to her sister and the police, but ultimately declined to prosecute because the police wanted her to speak with Vega to elicit a confession, but she was "overwhelmed and ill" and "didn't want to hear his voice."
Shirley moved out of her home, and changed her locks and cell phone number. Vega nevertheless acquired her new number, later explaining to her he "had his ways" and that she would "be surprised how much information you can get about people." He repeatedly phoned and left messages either threatening her or pleading with her to get back together. His messages suggested he had been going by her house.
On the afternoon of September 9, 2006, Shirley and her friend, Jose Velasquez, stopped at her house to check on her cat and to retrieve items for a barbeque. The house was dark, and the doors and windows had been covered with paper and bed sheets. Shirley spotted an old photograph of her and Vega on the kitchen counter and became alarmed because she had not placed the photo there. Frightened, she left her residence to speak with a neighbor. She returned home, telling Velasquez they should call the police, and asked Velasquez to accompany her while she retrieved an item from the bedroom.
As she walked down the hallway, Velasquez screamed. Vega had emerged from his hiding place, pointed a gun at Velasquez's head, and warned him not to move. Velasquez ran into a bathroom. Vega ordered him to come out or he would shoot, and warned him not to call the police. Velasquez complied, and Vega forced him at gunpoint down the hallway to the bedroom Shirley had entered to hide from Vega. Estimates of the distance varied; Velasquez believed he was moved 13 feet. At the point where they stopped by the bedroom door, Velasquez could not safely exit the house "because [Vega] was right there by the door. Which means, I would have to go past him, run down the hallway and out the front door. It wouldn't make any sense."
According to Shirley, when Vega first emerged he pointed a gun at her and said, "'Honey, I'm glad you['re] home.'" She ran to the bedroom, locked herself in the room and called 911. Vega pounded and kicked on the bedroom door and warned her to "'open the fucking door,'" or he would shoot. Vega fired a gunshot through the midsection of the door, striking the wall in front of Shirley. Vega fled the scene.
Police officers arrived on the scene. During their investigation, Shirley received a call from Vega, who denied shooting at her, claiming it was "somebody else trying to frame him." He proclaimed his love for her, and announced he would find her wherever she went because he had placed a tracking device on her car. He also boasted "he knew . . . high technology and ways to not incriminate himself."
Investigators found a Winchester .38 caliber casing outside the bedroom, and five identical rounds in a trash can at Vega's Norwalk apartment, where he was apprehended several hours later. They also found a letter, possibly a suicide note, dated about a week before the September incident. The gun was never recovered.
Vega testified he and Shirley had consensual sex on the occasion in January when Shirley claimed he raped her. He explained Shirley became upset when he told her he believed he had a financial interest in her home. She struck him on the back and they briefly struggled. He grabbed her wrists, but did not strike her. He told her to stop screaming or he would "knock [her] the fuck out." He later helped with painting the residence and worked on other home improvements at Shirley's request.
In early September 2006, he began sleeping at the house without Shirley's permission while she was away. According to Vega, he was just "trying to enjoy the house a little bit[.]" He claimed he found the gun in a bedroom and took it to his apartment in Norwalk because he did not "know what [Shirley] was planning to do with" it and "didn't want her to hurt [him] with it." He removed some bullets.
On the day of the September incident, he took the gun with him, planning to return it to Shirley's house after visiting some clients. He hid in his car when he arrived and watched as Shirley spoke to the neighbor. He tried phoning her several times, but grew angry when she did not answer.
He followed Shirley and Velasquez into the house and initially hid under the pool table. Emerging, Vega told Shirley it was nice she was home. Velasquez came out of the bathroom and covered his eyes, but Vega assured him "it had nothing to do with him." When Velasquez pleaded "'don't shoot me[,]'" Vega replied, "'I ain't here for you[,]'" and explained he just wanted to talk to Shirley. He claimed the gun discharged accidentally as he banged on the bedroom door.
Following a trial in December 2009 and January 2010, the jury acquitted Vega of several counts involving Shirley, including three counts of rape, false imprisonment by violence, and attempted murder. It convicted him of the other charges noted above. In March 2010, the trial court imposed an aggregate prison term of 17 years and eight months, comprised of a five-year midterm for kidnapping Velasquez, a 10-year enhancement for gun use, a consecutive 16-month term (one-third of the midterm) for burglary, a consecutive eight-month term (one-third of the midterm) for stalking, and a consecutive eight-month term (one-third of the midterm) for criminal threats. The court stayed (§ 654) punishment for assault with a firearm against Velasquez.
II
DISCUSSION
A. Substantial Evidence Supports Vega's Kidnapping Conviction
Vega challenges the sufficiency of the evidence to support his conviction for kidnapping Velasquez. He argues that directing Velasquez at gunpoint 13 feet down the hallway fails to show he moved Velasquez a "substantial distance," a necessary element of simple kidnapping.
Our review of this issue is limited to determining whether substantial evidence supports the verdict. Substantial evidence is defined as evidence that is reasonable, credible, and of solid value. (People v. Elliot (2005) 37 Cal.4th 453, 466.) A reviewing court faced with a claim of insufficient evidence must determine "'"whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt."'" (People v. Crabtree (2009) 169 Cal.App.4th 1293, 1321-1322.) A defendant is not entitled to a reversal even if the facts would support an acquittal. (People v. Bean (1988) 46 Cal.3d 919, 932-933.) Consequently, a defendant "bears an enormous burden" when challenging the sufficiency of the evidence. (People v. Sanchez (2003) 113 Cal.App.4th 325, 330.)
Section 207, subdivision (a), provides, "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." The prosecution must prove (1) a person was moved by use of physical force or fear, (2) the person did not consent to the movement, and (3) the person was moved a substantial distance. (People v. Jones (2003) 108 Cal.App.4th 455, 462; People v. Rayford (1994) 9 Cal.4th 1, 14.)
In People v. Martinez (1999) 20 Cal.4th 225 (Martinez), the Supreme Court held that "factors other than actual distance are relevant to determining asportation . . . in all cases involving simple kidnapping. [Citation.]" (Id. at p. 235.) "[T]he movement must be 'substantial in character,'" but "the trier of fact may consider more than actual distance." (Ibid.)The jury also must consider the "'scope and nature' of the movement and the increased risk of harm to the victim. [Citation.]" (Id. at p. 236.) "[A] primary reason forcible asportation is proscribed by the kidnapping statutes is the increase in the risk of harm to the victim because of the diminished likelihood of discovery, the opportunity for the commission of additional crimes, and the possibility of injury from foreseeable attempts to escape. [Citations.]" (Ibid.)Thus, "in determining whether the movement is "'substantial in character'" [citation], the jury should consider the totality of the circumstances. [I]n a case where the evidence permitted, the jury might properly 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." (Id. at p. 237, fn. omitted.)
The parties agree that under former case law, the movement involved in this case would not constitute a substantial distance.
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Martinez explained the jury need not find "the movement substantially increased the victim's vulnerability or risk of harm. While the jury may consider a victim's increased risk of harm, it may convict of simple kidnapping without finding an increase in harm, or any other contextual factors. Instead, as before, the jury need only find that the victim was moved a distance that was 'substantial in character.' [Citations.] To permit consideration of 'the totality of the circumstances' is intended simply to direct attention to the evidence presented in the case, rather than to abstract concepts of distance. At the same time, we emphasize that contextual factors, whether singly or in combination, will not suffice to establish asportation if the movement is only a very short distance."(Martinez, supra, 20 Cal.4th at p. 237.)
Here, Vega increased Velasquez's vulnerability when he moved him from the bathroom at gunpoint some 13 feet down the hallway. As the Attorney General notes, the "forced movement increased Velasquez's danger above that which existed prior to the asportation because with Velasquez relocated near Shirley, [Vega] could control both of them better, and had a greater capacity to inflict harm, as he had both of them effectively in one spot." As Velasquez explained, after the movement he could not safely exit the house "because [Vega] was right there by the door. Which means, I would have to go past him, run down the hallway and out the front door. It wouldn't make any sense." The jury reasonably could determine the movement increased the risk of harm to Velasquez above that which existed before the asportation, increased the danger inherent in any escape attempt by Velasquez, and provided Vega with an enhanced opportunity to commit additional crimes. Substantial evidence therefore supports the kidnapping conviction. B. The Trial Court Erred by Failing to Instruct the Jury to Consider Whether Velasquez's Movement Was Incidental to Commission of an Associated Crime
Vega next argues the trial court erred by failing to instruct the jury to consider whether Velasquez's movement was incidental to the commission of associated crimes, including stalking and attempting to murder Shirley and assaulting Velasquez. As noted above, Martinez held that for simple kidnapping the movement must be "substantial in character" and that the trier of fact may consider more than actual distance. Martinez noted it would be proper for the court to instruct that in determining whether the movement is "substantial in character," the jury should consider the totality of the circumstances: "Thus, in a case where the evidence permitted, the jury might properly 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." (Martinez, supra, 20 Cal.4th at p. 237, fn. omitted.) The jury need not find particular "contextual factors" present, for example, "that the movement substantially increased the victim's vulnerability or risk of harm." (Ibid.)In cases involving an associated crime, "the jury should be instructed to consider whether the distance a victim was moved was incidental to the commission of that crime in determining the movement's substantiality." (Ibid.)This "consideration is relevant to determining whether more than one crime has been committed, and is amply supported by the case law. [Citations.]" (Martinez, at pp. 237-238.)
The kidnapping instruction, CALCRIM No. 1215, currently provides in part: "Substantial distance means more than a slight or trivial distance. In deciding whether the distance was substantial, you must consider all the circumstances relating to the movement. [Thus, in addition to considering the actual distance moved, you may also consider other factors such as [whether the distance the other person was moved was beyond that merely incidental to the commission of [insert associated crime]], whether the movement increased the risk of [physical or psychological] harm, increased the danger of a foreseeable escape attempt, or gave the attacker a greater opportunity to commit additional crimes, or decreased the likelihood of detection.]" (Italics added.) Vega complains the court erred by failing to include the italicized portion.
In People v. Bell (2009) 179 Cal.App.4th 428, 434-435 (Bell), we held the trial court prejudicially erred when it denied the defendant's request to include the portion of the instruction italicized above, and we addressed the issue of what constitutes an "'associated crime.'" (Id. at p. 437.) We concluded an "associated crime" as used in Martinez 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." (Bell, at pp. 438-439, original italics.) In Bell, we determined the charge of recklessly evading a police officer was associated with the kidnapping charged in that case: "The evidence supported a finding that defendant intended to evade the police and did so recklessly. And from the evidence, the jury could have found that in the course of the evasion, Jennings was moved by force or fear against her will. Under these facts, the court should have instructed the jury that, in determining whether defendant's movement of Jennings was substantial, they could consider whether the movement was merely incidental to the crime of evasion (as one factor among others). Because defendant's reckless flight from the police was an associated crime to simple kidnapping, the court erred by failing to instruct the jury with regard to the movement's substantiality in relation to the evasion." (Id. at p. 439.)
The Attorney General asserts Vega's failure to request a clarifying instruction forfeited the claim. She also argues kidnapping was Vega's main purpose, and there were no "associated crimes." We disagree. The trial court has a sua sponte duty to instruct the jury on the essential elements of an offense, general principles of law governing the case, and principles of law commonly or closely and openly connected with the facts of the case before the court. (People v. Flood (1998) 18 Cal.4th 470, 504.) The jury could have determined Velasquez's movement was merely incidental to criminal acts the prosecution argued Vega intended to commit against Velasquez or Shirley, including assault and murder, especially given the short distance. (See Cotton v. Superior Court (1961) 56 Cal.2d 459, 464 [movement of the victim about 15 feet only incidental to assault and rioting].) As in Bell, the court's failure to instruct on this point precluded jurors from considering whether the kidnapping was merely incidental to other crimes, and the error may not be deemed harmless beyond a reasonable doubt. (Bell, supra, 179 Cal.App.4th at pp. 439-440; Flood, at p. 504 [appellate court considers whether it appears beyond a reasonable doubt that instructional error removing an issue from the jury's consideration did not contribute to the jury's verdict].) The failure to instruct on whether the movement was incidental to an associated crime was prejudicial and therefore requires reversal of Vega's simple kidnapping conviction. C. The Trial Court Did Not Err by Failing to Instruct the Jury Sua Sponte on Self-Defense Concerning the Criminal Threats Charge
The information charged Vega with making a criminal threat (§ 422) on January 13, 2006. Shirley testified that as she prepared to leave for work, Vega gazed at her strangely, announced "this is the end of a long relationship," embraced her and refused to let go. When Vega removed plastic zip ties from his pocket, Shirley struggled and screamed. Vega pushed her to the floor, choked her, yelled at her to stop screaming, and threatened "'if you don't shut up, I'll kill you.'" She pleaded for her life.
Vega testified that as they left the house, he asked Shirley when she would repay him the $75,000 he had invested in her house. She reacted angrily and when she struck him in the back, he turned around and bear hugged her. When she kept hitting him, he grabbed her wrists, and he told her to stop screaming or he would "knock [her] the fuck out."
Section 422 provides in relevant part, "Any person who willfully threatens to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement, made verbally, in writing, or by means of an electronic communication device, is to be taken as a threat, even if there is no intent of actually carrying it out, which, on its face and under the circumstances in which it is made, is 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, and thereby causes that person reasonably to be in sustained fear for his or her own safety or for his or her immediate family's safety, shall be punished by imprisonment in the county jail not to exceed one year, or by imprisonment in the state prison."
A court has a duty to instruct on defenses where there is substantial evidence to support the defense and it is not inconsistent with defendant's theory of the case. (People v. Breverman (1998) 19 Cal.4th 142, 157; People v. Maury (2003) 30 Cal.4th 342, 424.) Substantial evidence is sufficient evidence on which a "reasonable [jury] could conclude the particular facts underlying the instruction existed." (People v. Oropeza (2007) 151 Cal.App.4th 73, 78.)
Vega claims the court had a sua sponte duty to provide self-defense instructions because he "spoke in self-defense." Assuming a person may defend himself with a threat, there was no evidence in this case to support self-defense instructions. Under Vega's version of the facts, Vega uttered the threat in response to Shirley's screaming. When he made the threat, he was not in imminent danger of suffering bodily injury or an unlawful touching. He had, by his own admission, physically subdued Shirley. Indeed, Vega's trial lawyer conceded a guilty verdict on the criminal threats count "makes sense." We discern no error. D. Vega's Claim the Trial Court Erred in Not Staying Punishment on His Burglary Conviction is Moot
Vega contends the trial court erred by failing to stay punishment for the burglary conviction because he "entertained the same intent in entering the home and committing the assault and kidnapping." We need not decide the issue because Vega is entitled to a new trial on the kidnapping charge. Sentencing would become moot should the trial court acquit Vega under section 1118 or if the jury returns a not guilty verdict because the movement of Velasquez merely was incidental to the associated crimes of assault and stalking. Under these circumstances, the trial court may reconsider its sentencing choices, provided the aggregate sentence does not exceed the original sentence. (People v. Burbine (2003) 106 Cal.App.4th 1250, 1257-1258.)
III
DISPOSITION
The judgment is reversed. The matter is remanded for a possible retrial on the kidnapping charge and for resentencing.
ARONSON, J.
WE CONCUR:
RYLAARSDAM, ACTING P. J.
IKOLA, J.