Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. RIF129088 Carl E. Davis, Judge. (Retired judge of the San Bernardino Super. Ct., assigned by the Chief Justice pursuant to art. VI, § 6, of the Cal. Const.)
Brett Harding Duxbury, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Steve Oetting and Emily R. Hanks, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
King, J.
I. INTRODUCTION
A. Charges and Convictions
Defendant, Robert Cabada, was charged with aggravated kidnapping (Pen. Code, § 209, subd. (b)(1); count 1), forced oral copulation (§ 288a, subd. (c)(2); count 2), and criminal threats (§ 422; count 3). The jury found defendant guilty as charged on all three counts and found he used a deadly or dangerous weapon in the commission of counts 1 and 2. (§§ 12022, subd. (b)(1), 12022.3, subd. (a).) The jury also found true several one-strike circumstances regarding count 2, namely, simple kidnapping, aggravated kidnapping, and dangerous weapon use. (§ 667.61, subds. (d)(2), (e)(1) & (4).)
All further statutory references are to the Penal Code unless otherwise indicated.
Defendant was sentenced to an aggregate prison term of 26 years to life, calculated as follows: (1) 25 years to life on count 2; (2) a concurrent term of seven years to life on count 1; (3) a consecutive term of one year for the section 12022, subdivision (b)(1) enhancement on count 1; and (4) a concurrent term of two years on count 3. Defendant appeals.
B. Contentions and Arguments of Defendant
Defendant claims: (1) insufficient evidence supports the jury’s finding that the weapon he used in counts 1 and 2, a BB gun, was a dangerous or deadly weapon; (2) insufficient evidence supports the jury’s aggravated kidnapping finding; (3) the trial court erroneously failed to give a unanimity instruction on the aggravated kidnapping charge, in violation of his federal due process rights; and (4) the trial court erroneously failed to stay punishment on his aggravated kidnapping and criminal threats convictions relative to the sentence on his oral copulation conviction, pursuant to section 654. We find these claims without merit, and affirm the judgment.
II. FACTS AND PROCEDURAL HISTORY
A. Prosecution Evidence
On Saturday, March 4, 2006, defendant, then age 24, met the victim, Norman, then age 21, in an Internet chat room designed for gay or sexually curious people. Norman and defendant began communicating via instant message, and discussed meeting to engage in oral sex. They agreed to meet in the parking lot of a Sav-on drugstore in Norco, and exchanged cell phone numbers. Norman left his home in Lakewood around 5:15 p.m., and arrived at the Sav-on parking lot around 6:45 p.m.
Defendant approached Norman’s car on foot and got into the passenger seat. The two men drove to a residential area a short distance away, parked in a dark location, and climbed into the backseat of the car. Defendant removed his pants and Norman voluntarily began orally copulating him. After a few minutes, Norman told defendant he was fearful that people driving by might see them, and he stopped the sex act.
Defendant did not become angry with Norman and agreed to stop the sex act. He told Norman to wait in the car while he retrieved a compact disc from a nearby house. Defendant returned to the car approximately three minutes later. He got back into the passenger seat of the car, pulled out a black BB gun, and held it four to five inches from Norman’s right temple. Norman was unfamiliar with guns and believed the BB gun was a real handgun. The BB gun looked like a Beretta semiautomatic handgun.
Defendant appeared to be very angry. He yelled at Norman to be quiet and told Norman he was going to kill him. Defendant said someone from Glendale had offered him $500 to kill Norman. Norman did not know anyone from Glendale. Terrified, Norman offered defendant all the money he had in the bank, about $600, not to kill him. Defendant agreed and Norman drove to a nearby ATM. Defendant followed Norman to the ATM but stood to the side of the machine to avoid being caught on the surveillance camera. Defendant still had the gun but was hiding it from view. There were people in the area, but they were far away. The ATM was off-line and Norman was unable to withdraw money from it.
The men returned to the car. Defendant demanded the car keys and told Norman that he (defendant) was going to drive because Norman had been driving so poorly it might attract suspicion. Norman got into the passenger seat, and defendant had the gun in his hand as he drove. Norman was crying. Defendant told Norman to be quiet and not to do anything stupid or he would kill him.
Defendant drove to Corona, taking Interstate 15 to the 91 freeway. While driving, defendant unzipped his pants and told Norman to masturbate him. Norman complied out of fear for a few minutes, then he again suggested paying defendant money not to kill him. Defendant took the Green River exit off the 91 freeway, drove to an industrial complex, and parked. It was dark outside and there were no cars or people present. All businesses in the area were closed.
Defendant allowed Norman to get out of the car to urinate. At that point, Norman considered trying to escape but was afraid to because defendant still had the gun and was watching him. When Norman returned to the car, defendant told him to get into the backseat and orally copulate him. Defendant still had the gun in his hand. Norman did not want to comply but did so out of fear. After a few minutes, Norman stopped the sex act and suggested they go to another ATM to get money. That way, Norman thought he could get to an area where people were present. Defendant agreed and began driving again, with Norman in the front passenger seat. It was around 8:00 p.m.
Shortly after they left the business complex, Norman’s cell phone began to vibrate. Norman accidentally activated the loudspeaker, and both men heard the voice of Norman’s mother asking Norman where he was, before Norman hung up. Defendant began screaming at Norman and told him he would kill him if he did not hand over the phone. Norman refused because the phone contained his and his family’s personal information.
While defendant was yelling at Norman to hand over his phone, defendant drove by a gas station and some fast food restaurants near the 91 freeway. Defendant slowed for a stop sign, and at that point Norman jumped out of the car. Norman was able to flag down Cynthia Vega and her husband as they were driving by. Norman was crying and yelling that someone was trying to kill him. Ms. Vega called 911 on her cell phone. Norman told the operator a man he had met online threatened to kill him with a gun and stole his car.
After Norman jumped out of the car, defendant sped away. He returned Norman’s car to the neighborhood near the Sav-on drugstore where the men initially met, and walked home.
Police examined Norman’s computer and cell phone, and learned that the phone number Norman called that night belonged to defendant. Detective Edward Fanchin called defendant and asked him to come to the Corona Police Department to discuss the case. Defendant voluntarily came to the station and was interviewed. A DVD of the interview was played for the jury and admitted into evidence.
During the interview, defendant told Detective Fanchin that Norman was behaving strangely as if he was on drugs, and that Norman wanted to go to an ATM to withdraw money for himself. He asked defendant to accompany him because he did not know the area, and defendant reluctantly agreed. When the ATM did not work, Norman asked defendant to drive to a second ATM. Norman then asked defendant to take the Green River exit so he could urinate in the bushes near an industrial complex. As they were driving back to the 91 freeway, Norman went crazy and jumped out of the car. After that, defendant drove back to the area near the drugstore, parked the car, and walked home.
Defendant admitted he used the screen name “Busonmymind” to chat online. After initially denying that anything sexual had occurred, defendant admitted that Norman orally copulated him in the residential area near the Sav-on drugstore, but he denied any further sexual contact. After Detective Fanchin told defendant his story was unbelievable and he would be arrested, defendant told him Norman was going to give him $20 for oral sex and that was the reason they went to the ATM.
Defendant gave Detective Fanchin permission to search his home. He lived in the residential area near the Sav-on with his mother, brothers, and sisters. While searching the home on March 15, Detective Fanchin spoke to defendant’s brother, Steven Cabada.
Steven told Detective Fanchin, and testified at trial, that he saw defendant leave the house between 6:00 p.m. and 7:00 p.m. on March 4, 2006. Defendant had a BB gun with him and claimed he was going to help a friend collect some money from someone. He returned home around 9:00 p.m. He was nervous, panicky, and was vomiting. He told Steven he pulled the BB gun on “the guy” he was to collect money from and the guy jumped out of the car. He had never seen anyone more frightened. He did not get any money and threw the BB gun away. He was worried the police would be looking for him, so he told Steven that if the police asked about him, Steven should say he (defendant) was home all night on March 4. On cross-examination, Steven testified that the BB gun defendant took from the house that night was inoperable. On redirect, Steven admitted he had no personal knowledge that the BB gun was inoperable; he only knew that defendant told him the BB gun did not work.
Detective Fanchin seized a computer from defendant’s home. Another detective examined the computer’s hard drive and recovered the contents of several Internet chats on March 4, 2006, between the screen names defendant and Norman were using. The first chat began at 4:28 p.m. The last chat took place around 5:30 p.m., and was conducted between defendant’s computer and a cell phone.
The BB gun was never discovered. There was no usable surveillance footage of the crime.
B. Defense Evidence
David Cabada, defendant’s youngest brother, testified in defendant’s defense. He claimed that, in the courthouse shortly after Steven testified at trial, Steven told him that his (Steven’s) statements to Detective Fanchin and his trial testimony were false. According to David, Steven said he made up the story he gave to police because he was under the influence of cocaine when he was interviewed by Detective Fanchin, the detective found out, and Steven did not want to go to jail. Steven said Detective Fanchin told him he would be arrested for cocaine possession and taken to jail unless he gave a statement that the police wanted to hear.
C. Prosecution Rebuttal
Steven testified on rebuttal that he never told David he lied to the police or that he lied during his trial testimony. Steven was not under the influence of cocaine on the day he spoke to Detective Fanchin. Steven said that David and other members of the Cabada family were angry with him for testifying against defendant.
Elia Joseph, the defense investigator, testified that when she interviewed Steven in June 2007, he confirmed that the statements he made to Detective Fanchin were accurate. Detective Fanchin testified it did not appear to him that Steven was under the influence of cocaine at the time they spoke. Detective Fanchin never threatened to arrest Steven.
III. DISCUSSION
A. Substantial Evidence Supports the Jury’s Finding That the BB Gun Was a Dangerous Weapon
Defendant contends that insufficient evidence supports the jury’s findings that the BB gun he used in the commission of counts 1 and 2 was a “dangerous” weapon within the meaning of section 12022, subdivision (b) and, by extension, section 667.61, subdivision (e)(4). He points out there was no evidence that the BB gun he used was in working order or capable of inflicting serious or great bodily injury. We conclude that substantial evidence supports the jury’s findings—even if the BB gun was wholly inoperable and incapable of expelling metal projectiles.
Section 12022, subdivision (b)(1) provides for an enhanced sentence of one year for persons who use a “deadly or dangerous weapon” in the commission of a felony, unless the use of a dangerous or deadly weapon is an element of the felony. This enhancement was found true relative to defendant’s aggravated kidnapping conviction in count 1.
1. Standard of Review
In reviewing a criminal conviction for sufficiency of evidence, “an appellate court reviews the entire record in the light most favorable to the prosecution to determine whether it contains evidence that is reasonable, credible, and of solid value, from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt.” (People v. Kipp (2001) 26 Cal.4th 1100, 1128.) In making this determination, the appellate court must presume every fact in support of the judgment which the jury could have reasonably deduced from the evidence. (People v. Rayford (1994) 9 Cal.4th 1, 23.) The same standard applies in determining whether there is sufficient evidence to support a sentencing enhancement. (People v. Ortiz (1997) 57 Cal.App.4th 480, 484.)
2. Applicable Law and Analysis
First, and as defendant acknowledges, the terms “deadly” and “dangerous” are used disjunctively in section 12022 and are not synonymous. “[A] deadly weapon is any instrument that is capable of being used to inflict death or great bodily injury and a firearm is unquestionably a deadly weapon.” (People v. Dixon (2007) 153 Cal.App.4th 985, 1002, italics added, citing People v. Aguilar (1997) 16 Cal.4th 1023, 1029.) But a “dangerous” weapon is not necessarily a “deadly” weapon. (People v. Brookins (1989) 215 Cal.App.3d 1297, 1305-1306; In re Bartholomew D. (2005) 131 Cal.App.4th 317, 322 (Bartholomew D.), citing People v. Sherman (1967) 251 Cal.App.2d 849, 856 [“[I]t is not necessary to show that the weapon is deadly so long as it can be shown that it is dangerous”].)
Still, “the distinction between deadly weapons on the one hand and dangerous ones on the other has not always been made explicit or even drawn at all.” (People v. Brookins, supra, 214 Cal.App.3d at p. 1305.) Instead, courts of this state have traditionally drawn a distinction between two types of “dangerous or deadly weapons”—those that are inherently deadly or dangerous, including guns or firearms, and those that may be used in a deadly or dangerous manner. (E.g., People v. Graham (1969) 71 Cal.2d 303, 327-328, citing People v. Raleigh (1932) 128 Cal.App.105, 108-109.)
In People v. Graham, supra, 71 Cal.2d 303, the state Supreme Court articulated and applied the distinction, first articulated in the 1932 Raleigh decision, between inherently dangerous or deadly weapons, on the one hand, and weapons that may be used in a deadly or dangerous manner, on the other hand, in determining whether a steel-toed shoe constituted a deadly or dangerous weapon. Quoting People v. Raleigh, supra, 128 Cal.App. at pages 108 and 109, the court observed, “‘a distinction should be made between two classes of “dangerous or deadly weapons[.]” There are, first, those instrumentalities which are weapons in the strict sense of the word, and, second, those instrumentalities which are not weapons in the strict sense of the word, but which may be used as such. The instrumentalities falling in the first class, such as guns, dirks and blackjacks, which are weapons in the strict sense of the word and are “dangerous or deadly” to others in the ordinary use for which they are designed, may be said as a matter of law to be “dangerous or deadly weapons.” This is true as the ordinary use for which they are designed establishes their character as such. The instrumentalities falling into the second class, such as ordinary razors, pocket-knives, hatpins, canes, hammers, hatchets and other sharp or heavy objects, which are not weapons in the strict sense of the word and are not “dangerous or deadly” to others in the ordinary use for which they are designed, may not be said as a matter of law to be “dangerous or deadly weapons.” When it appears, however, that an instrumentality other than one falling within the first class is capable of being used in a “dangerous or deadly” manner, and it may be fairly inferred from the evidence that its possessor intended on a particular occasion to use it as a weapon should the circumstances require, we believe that its character as a “dangerous or deadly weapon” may be thus established, at least for the purposes of that occasion.’” (People v. Graham, supra, 71 Cal.2d at pp. 327-328.)
In one relatively recent decision, the court observed, “There are two classes of dangerous or deadly weapons: instrumentalities that are weapons in the strict sense, such as guns and blackjacks; and instrumentalities which may be used as weapons but which have nondangerous uses, such as hammers and pocket knives. [Citation.] Instrumentalities in the first category are ‘“dangerous or deadly”’ per se. [Citation.] An instrumentality in the second category is only ‘“dangerous or deadly”’ when it is capable of being used in a ‘“dangerous or deadly”’ manner and the evidence shows its possessor intended to use it as such. [Citation.]” (People v. Burton (2006) 143 Cal.App.4th 447, 457, citing People v. Raleigh, supra, 128 Cal.App. at pp. 108-109.)
A BB gun falls into the first category and constitutes a dangerous weapon within the meaning of section 12022, subdivision (b) as a matter of law, even if it is inoperable. (Bartholomew D., supra, 131 Cal.App.4th at p. 326.) In reaching this conclusion, the court in Bartholomew D. reasoned that a BB gun is a “weapon” in the strict sense of the word because it is designed to expel metal projectiles and, as such, is dangerous to others in the ordinary use for which it was designed. (Ibid.) Furthermore, the BB gun the defendant in Bartholomew D. used looked just like a semiautomatic handgun, and the victim testified he was certain the weapon was a semiautomatic handgun. Also, the “appearance” of the BB gun “provoked the desired reaction [from the robbery victim]: submission to appellant’s criminal enterprise and demands.” (Ibid.) For these reasons, the court concluded that the BB gun the defendant used was a dangerous weapon as a matter of law “even in the absence of evidence of its capacity to be used in a dangerous manner.” (Ibid., italics added.)
Other courts have concluded that a BB or a pellet gun is a dangerous weapon, but have not discussed whether an inoperable BB gun is a dangerous weapon. (People v. Dixon, supra, 153 Cal.App.4th at p. 1001; People v. Schaefer (1993) 18 Cal.App.4th 950, 951; People v. Montalvo (1981) 117 Cal.App.3d 790, 797; People v. Sherman, supra, 251 Cal.App.2d at p. 857.)
Defendant maintains that Bartholomew D. “rests on an erroneous fixation on the reasonable perception of a BB gun’s capacity to inflict great injury rather than its actual capacity to inflict such.” We disagree that the Bartholomew D. court’s so-called “fixation” on the reasonable perception of the victim—that the BB gun the defendant used to rob him was a real handgun—was erroneous or misplaced. Indeed, and as the court in Bartholomew D. concluded, a BB gun that looks like a real handgun is a dangerous weapon—regardless of whether the BB gun is in working order or capable of expelling metal projectiles. (Bartholomew D., supra, 131 Cal.App.4th at p. 326.)
The Bartholomew D. court relied in part on In re Arturo H. (1996) 42 Cal.App.4th 1694, 1697. There, a minor was found to have possessed a pellet gun on school grounds in violation of section 626.10, subdivision (a), and challenged the finding on the grounds there was no evidence his pellet gun was operable. The court concluded it did not matter whether the pellet gun was operable, because the pellet gun “gave the reasonable appearance of a shooting capability” and looked like a real pellet gun. (In re Arturo H., supra, at p. 1698.) Moreover, the court observed, “many cases have interpreted the laws prohibiting possession and use of firearms to apply even if the gun in question is inoperable,” and identified “what has been called ‘an important common thread of perceived fear in . . . the underlying purpose of The Dangerous Weapons’ Control Law [§ 12000 et seq.].)’ [Citation.]” (Id. at pp. 1697-1698, italics added & cases cited.)
“‘[T]he [Dangerous Weapons’ Control Law, specifically section 12022.5] seeks to deter both physical harm and conduct which produces fear of harm. The fear may arise either from a gun that really shoots or from one which is designed to shoot and gives the appearance of shooting capability. Persons held at gunpoint have no stomach for inquiry. Danger radiates not only from the weapon, but from the defensive reactions of others. In response to the lawbreaker’s weapon, operable or not, a victim or law officer may himself resort to a firearm. Further, a demand for affirmative proof of operability would allow the defendant to frustrate the statute by getting rid of the gun or concealing it. . . . [I]t is enough that the prosecution produce evidence of a gun designed to shoot and which gives the appearance of shooting capability.’” (In re Arturo H., supra, 42 Cal.App.4th at p. 1698, italics added, quoting People v. Hayden (1973) 30 Cal.App.3d 446, 452.)
The same considerations apply here. The BB gun defendant used was a dangerous weapon within the meaning of section 12022, subdivision (b) regardless of whether it was operable, because it looked just like a real gun and Norman reasonably believed it was a real gun. Defendant’s brother, Steven, also testified that the BB gun looked like a black Beretta semiautomatic handgun. The evidence that the BB gun looked like a real handgun, and that Norman perceived it to be a real handgun, was sufficient to support the true findings on the dangerous weapon use allegations in counts 1 and 2.
In view of the evidence that the BB gun looked like a real handgun, it was unnecessary for the prosecution to present additional evidence that (1) the BB gun was operable, (2) if operable, whether the BB gun was capable of inflicting serious or great bodily injury or whether defendant intended to aim it directly at Norman’s eye, or (3) if inoperable, whether defendant intended to strike Norman with it. (People v. Graham, supra, 71 Cal.2d at pp. 327-328 [instruments not qualifying as dangerous or deadly weapon by design will so qualify if defendant intends to use them as such].)
Defendant relies on People v. Lochtefeld (2000) 77 Cal.App.4th 533 for the proposition that the prosecution was required to show that the BB gun he used was operable and capable of inflicting serious or great bodily injury. Lochtefeld is inapposite, however. There, the court concluded the defendant was properly convicted of “‘assault with a deadly weapon or instrument, other than a firearm, or by any means likely to produce great bodily injury’” in violation of section 245, subdivision (c), because the weapon he used was an operable pellet gun capable of inflicting great bodily injury. (People v. Lochtefeld, supra, at pp. 535, 541-542.)
The Lochtefeld court observed that the “determinative question” was whether the pellet gun was capable of inflicting great bodily injury. (People v. Lochtefeld, supra, 77 Cal.App.4th at p. 540.) But here, defendant was not charged with violating section 245, subdivision (c), and the “determinative question” was not whether the BB gun defendant used was capable of inflicting great bodily injury.
For the reasons discussed, the jury’s true findings on the dangerous weapon use allegations in counts 1 and 2 did not require a showing that the BB gun was operable or capable of inflicting great bodily injury. The BB gun was a dangerous weapon within the meaning of section 12022, subdivision (b), because substantial evidence showed it looked like a real handgun. (Bartholomew D., supra, 131 Cal.App.4th at p. 326.) No additional showing regarding the BB gun’s capacity to inflict great bodily injury or operability was required.
B. Substantial Evidence Supports Defendant’s Aggravated Kidnapping Conviction and One-strike Circumstance Finding
Defendant next claims insufficient evidence supports his aggravated kidnapping conviction in count 1 and the aggravated kidnapping one-strike circumstance finding in count 2. He maintains that his movement of Norman did not increase the risk of harm to Norman beyond the risk that was necessarily present in the commission of the underlying, intended crimes of robbery and forced oral copulation, and was merely incidental to the commission of those offenses. We disagree.
The crime of aggravated kidnapping requires “movement of the victim [that] is beyond that merely incidental to the commission of, and [which] increases the risk of harm to the victim over and above that necessarily present in, the intended underlying offense.” (§ 209, subd. (b)(2); People v. Dominguez (2006) 39 Cal.4th 1141, 1153 (Dominguez); see also People v. Rayford, supra, 9 Cal.4th at p. 12, People v. Daniels (1969) 71 Cal.2d 1119, 1130-1131.) The same requirements apply to aggravated kidnapping, one-strike circumstance findings. (§ 667.61, subd. (d)(2); People v. Diaz (2000) 78 Cal.App.4th 243, 245-246.) An appellate court will uphold a jury’s guilty verdict on the substantive charge and its true finding on the enhancement allegation if they are supported by substantial evidence. (Dominguez, supra, at p. 1153; People v. Diaz, supra, at p. 249.)
There were two interrelated inquiries the jury had to consider. The first was whether the movement of Norman was a substantial distance and not merely incidental to the intended underlying crime. This required the jury to consider the “scope and nature” of the movement as well as “‘the context of the environment in which the movement occurred.’” (Dominguez, supra, 39 Cal.4th at pp. 1151, 1153, italics omitted; People v. Rayford, supra, 9 Cal.4th at p. 12.) An incidental movement means “‘that the asportation play[s] no significant or substantial part in the planned [offense], or that it be a more or less “‘trivial change[] of location having no bearing on the evil at hand.’”’ [Citation.]” (People v. James (2007) 148 Cal.App.4th 446, 454.) No minimum distance of movement is required, and the actual distance of the movement is relevant though not determinative of this inquiry. (Dominguez, supra, at p. 1152.)
The jury was properly instructed on the elements of the aggravated kidnapping charge in accordance with Judicial Council of California Criminal Jury Instructions, CALCRIM No. 1203 (Kidnapping: For Robbery, Rape, or Other Sex Offenses (§ 209, subd. (b)) and on the elements of the aggravated kidnapping one-strike circumstance finding in accordance with CALCRIM No. 3175 (Sex Offenses: Sentencing Factors—Aggravated Kidnapping (§ 667.61, subd. (d)(2)).
The second inquiry was whether the movement substantially increased the risk of harm to Norman above and beyond that inherent in the underlying crime. (Dominguez, supra, 39 Cal.4th at pp. 1151-1152; People v. Rayford, supra, 9 Cal.4th at p. 12.) “This includes consideration of such factors as the decreased likelihood of detection, the danger inherent in a victim’s foreseeable attempts to escape, and the attacker’s enhanced opportunity to commit additional crimes. [Citations.] The fact that these dangers do not in fact materialize does not, of course, mean that the risk of harm was not increased. [Citations.]” (People v. James, supra, 148 Cal.App.4th at p. 454.)
As noted, “[t]he two elements of the test are related; ‘whether the victim’s forced movement was merely incidental to the [underlying offense] is necessarily connected to whether it substantially increased the risk to the victim.’ [Citation.] ‘[E]ach case must be considered in the context of the totality of its circumstances.’ [Citation.]” (People v. James, supra, 148 Cal.App.4th at p. 454.)
Defendant maintains that his movement of Norman “from the drug store parking lot, to an ATM kiosk, onto the freeway, to an industrial parking stall, and towards another ATM—was all incidental to the aggravated crimes . . . of robbery and forced oral copulation.” He argues that the robbery “necessarily involved movement,” because Norman did not have any money with him, and when the first ATM did not work, it was necessary to find another ATM—and Norman suggested they look for another ATM during the forced oral copulation. He further argues that the forced oral copulation necessarily “required movement as well” because “[t]he perpetrator of a sex crime must move the victim to a place of comparative privacy to avoid detection . . . . Such movement can only be viewed as ‘incidental’ to the commission of the crime.”
We disagree with defendant’s view of the evidence. First, the movement of Norman from the residential street in Norco—where defendant first pulled what appeared to be a real semiautomatic handgun on Norman—to the deserted industrial complex in Corona, was without question a substantial distance. Moreover, the jury could have reasonably inferred that the movement substantially increased the risk of harm to Norman above the risk inherent in the forced oral copulation, and was not merely incidental to the commission of that offense. (Dominguez, supra, 39 Cal.4th at p. 1153.)
At the residential street in Norco, people and cars were passing by and Norman was relatively safe. But the Corona industrial complex was in an isolated location. All of the businesses in the area were closed and no people or cars were present. The movement thus changed Norman’s environment from a relatively open and safe area to a very secluded area where Norman was substantially less safe. At the Corona industrial complex, the odds that the forced oral copulation would be discovered or that Norman could successfully escape were substantially reduced. Finally, the movement was not merely incidental to the forced oral copulation. It was by no means necessary to move Norman such a substantial distance and to such an isolated, unsafe location in order to carry out the forced oral copulation.
For the same reasons, the jury could have reasonably inferred that the movement of Norman for the purpose of committing the robbery—specifically, the movement to the first ATM in Norco in combination with the later movement in search of a second ATM following the forced oral copulation—was a substantial distance, was not merely incidental to the intended robbery, and substantially increased the risk of harm to Norman above the risk inherent in the robbery. (Dominguez, supra, 39 Cal.4th at p. 1153.) The movements in search of the ATMs were inseparable from the movement to the secluded industrial complex in Corona, and the movement to Corona was by no means merely incidental to the commission of the robbery.
C. No Unanimity Instruction Was Required on the Aggravated Kidnapping Charge or the Aggravated Kidnapping One-strike Circumstance Allegation
Defendant next claims that the trial court prejudicially erred in failing to give a unanimity instruction sua sponte on the aggravated kidnapping charge and aggravated kidnapping one-strike circumstance allegation. He maintains that the trial court had a duty to instruct the jury sua sponte that it had to unanimously find one or both of the following: (1) he kidnapped Norman with the intent to rob him, or (2) he kidnapped Norman with the intent to force him into oral copulation. We disagree.
The trial court has a duty to give a unanimity instruction sua sponte where the circumstances of the case warrant it. (People v. Riel (2000) 22 Cal.4th 1153, 1199.) In a criminal case, “the jury must agree unanimously the defendant is guilty of a specific crime. [Citation.] Therefore, cases have long held that when the evidence suggests more than one discrete crime, either the prosecution must elect among the crimes or the court must require the jury to agree on the same criminal act. [Citations.]” (People v. Russo (2001) 25 Cal.4th 1124, 1132, second italics added.) The unanimity requirement is designed to “‘eliminate the danger that the defendant will be convicted even though there is no single offense which all the jurors agree the defendant committed.’” (Ibid., italics added.)
“On the other hand, where the evidence shows only a single discrete crime but leaves room for disagreement as to exactly how that crime was committed or what the defendant’s precise role was, the jury need not unanimously agree on the basis or, as the cases often put it, the ‘theory’ whereby the defendant is guilty. [Citation.]” (People v. Russo, supra, 25 Cal.4th at p. 1132.) Stated another way, “a unanimity instruction is not required if the evidence shows only a single crime, albeit committed in several possible ways.” (People v. Wolfe (2003) 114 Cal.App.4th 177, 185 & cases cited.) More to the point: discrete crimes require unanimity instructions, theories of the case do not. (People v. Russo, supra, at p. 1132.)
For example, if a jury unanimously agrees that the defendant is guilty of a specific murder, it need not agree whether the defendant is guilty of the murder based on the theory of premeditation or the theory of felony murder. (People v. Pride (1992) 3 Cal.4th 195, 249-250.) Similarly, a jury need not agree whether a defendant who commits a single burglary entered the residence with the intent to commit, for example, forced oral copulation or felony assault. (People v. Failla (1966) 64 Cal.2d 560, 567-568.)
Here, the evidence showed that defendant committed one aggravated kidnapping, not two. Aggravated kidnapping requires the defendant to commit an act (forced movement of another person) with the specific intent to commit an underlying felony (e.g., robbery, rape, spousal rape, oral copulation). (§ 209, subd. (b)(1); CALCRIM No. 1203.) The fact that defendant was alleged to have kidnapped Norman in order to commit both robbery and forced oral copulation does not mean he committed two aggravated kidnappings. There was only one act of forced movement of Norman; thus, there was only crime of kidnapping. (§ 209, subd. (b)(1); CALCRIM No. 1203.)
It follows that the jury did not have to unanimously agree whether defendant intended to commit robbery, forced oral copulation, or both during the kidnapping—even if, as defendant argues, reasonable jurors could have disagreed whether defendant intended to commit either or both crimes during the kidnapping. The underlying crime defendant intended to commit during the kidnapping constituted the “theory” of the kidnapping; it did not constitute the crime itself. (See People v. Beardslee (1991) 53 Cal.3d 68, 92 [jury unanimity requirement typically applies to acts that could have been charged as separate offenses].)
D. Separate Terms Were Properly Imposed on Counts 1 and 3 Relative to Count 2
Defendant was sentenced to an aggregate prison term of 26 years to life, calculated as follows: (1) 25 years to life on count 2 (forced oral copulation); (2) a concurrent term of seven years to life on count 1 (aggravated kidnapping); (3) a consecutive term of one year for the section 12022, subdivision (b)(1) enhancement on count 1; and (4) a concurrent term of two years on count 3 (criminal threats).
Defendant claims the trial court erroneously failed to stay, pursuant to section 654, the consecutive and concurrent terms it imposed on counts 1 and 3, respectively, relative to his 25-year-to-life sentence on count 2 for forced oral copulation. He claims he kidnapped Norman (count 1) and criminally threatened him (count 3) in order to facilitate the oral copulation (count 2) and for no other purpose. We find no error.
1. Section 654
Section 654, subdivision (a) provides, in pertinent part, that “[a]n act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision. . . .”
“Section 654 precludes multiple punishments for a single act or indivisible course of conduct. [Citation.]” (People v. Hester (2000) 22 Cal.4th 290, 294.) “The purpose of section 654 is to prevent multiple punishment for a single act or omission [or indivisible course of conduct], even though that act or omission [or indivisible course of conduct] violates more than one statute and thus constitutes more than one crime. . . .” (People v. Liu (1996) 46 Cal.App.4th 1119, 1135; People v. Harrison (1989) 48 Cal.3d 321, 335.) Section 654 is intended to ensure that a defendant’s punishment is “commensurate with his culpability.” (People v. Perez (1979) 23 Cal.3d 545, 551.)
“It is defendant’s intent and objective, not the temporal proximity of his offenses, which determine whether the transaction is indivisible.” (People v. Harrison, supra, 48 Cal.3d at p. 335.) If the defendant’s crimes “were merely incidental to, or were the means of accomplishing or facilitating one objective, [the] defendant may be found to have harbored a single intent and therefore may be punished only once.” (Ibid., citing Neal v. State of California (1960) 55 Cal.2d 11, 19.) Multiple punishment is proper, however, where the defendant entertained multiple criminal objectives which were independent of each other. (People v. Harrison, supra, at p. 335, citing People v. Beamon (1973) 8 Cal.3d 625, 639.)
Whether a defendant harbored a single intent and objective is generally a factual question. (People v. Harrison, supra, 48 Cal.3d at p. 335, citing People v. Perez, supra, 23 Cal.3d at p. 552, fn. 5.) An implied finding that the crimes were divisible must be upheld on appeal if substantial evidence supports it. (People v. Blake (1998) 68 Cal.App.4th 509, 512.) When, however, the relevant facts are undisputed, the application of section 654 is a question of law which we review de novo. (Neal v. State of California, supra, 55 Cal.2d at p. 17.)
2. Analysis
In sentencing defendant to separate terms on all three counts, the trial court implicitly determined that defendant harbored separate criminal intents and objectives in committing all three crimes, and substantial evidence supports its determination. First, separate terms were properly imposed on counts 1 (aggravated kidnapping) and 2 (forced oral copulation). Although the aggravated kidnapping was committed for the purpose of forced oral copulation, it was also committed for the purpose of robbery. Defendant is more culpable than he would be had he kidnapped Norman for the sole purpose of committing forced oral copulation. (See People v. Douglas (1995) 39 Cal.App.4th 1385, 1393 [separate terms properly imposed for (1) kidnapping for robbery and rape and (2) kidnapping for forced oral copulation].)
Furthermore, a separate term was also properly imposed on count 3 (criminal threats), because the evidence showed that defendant intended to terrorize Norman by continually threatening him with the BB gun, separate and apart from his intent and objective in robbing Norman and forcing Norman into oral copulation. In short, defendant harbored three separate criminal intents and objectives in committing counts 1, 2, and 3: (1) robbing Norman, (2) forcing Norman into oral copulation, and (3) terrorizing Norman for its own sake.
IV. DISPOSITION
The judgment is affirmed.
We concur: Richli, Acting P.J., Miller, J.
Pursuant to section 667.61, any person who is convicted of forced oral copulation in violation of section 288a, subdivision (c)(2), and who kidnaps the victim and uses a “dangerous or deadly weapon” in the commission of the crime, in violation of section 12022, shall be sentenced to 25 years to life. (§ 667.61, subds. (a), (e)(1) & (4).) This “one-strike circumstance” sentence enhancement was found true relative to defendant’s forced oral copulation conviction in count 2.