Opinion
For Opinion on Hearing, see 129 Cal.Rptr. 438, 548 P.2d 1110.
Opinions on pages 938-948 omitted.
References To This Case
Glen H. Schwartz, Venice, under appointment by the Court of Appeal, for defendant and appellant Raven.
[123 Cal.Rptr. 772]F. Elaine Easley, Los Angeles, under appointment by the Court of Appeal, for defendant and appellant Camden.
Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., S. Clark Moore, Asst. Atty. Gen., Juliet H. Swoboda, David R. Chaffee, and William R. Weisman, Deputy Attys. Gen., for plaintiff and respondent.
KINGSLEY, Associate Justice.
Because both of the above entitled cases involve one important issue in common, we deal with both in this one opinion.
Facts--Camden Appeal (Crim. 26496)
Defendant Camden was charged with and, after a trial by jury, was convicted of, kidnapping in violation of section 207 of the Penal Code. He was sentenced to state prison; he has appealed; we modify the judgment and affirm it as modified.
The victim was walking home after a visit to an employment agency. While so engaged, defendant, whom she had seen at the agency, drove up and offered her a ride to her home. She accepted and entered his car. Instead of driving her to her home, defendant drove in a different direction. In spite of the victim's demands to be taken home or let her out of the car, defendant restrained her by force. Ultimately, she was able to jump out of the car as it rounded a corner, receiving physical injuries in her fall. During the ride, defendant offered the victim a drink, made improper touchings of her body, and told her that he intended to have sexual intercourse with her.
On this appeal defendant contends that he was not guilty of a violation of section 207 because the victim entered his car voluntarily, although he had thereafter transported her against her will. He also contends that he was denied the effective assistance of counsel because his trial counsel failed to raise crucial defenses.
Since the ineffectiveness of counsel relied on was his failure to raise the issue of whether the evidence showed kidnapping, and we modify the judgment in accordance with the contention made here, we need not pass on the issue of ineffective representation. Defendant has, by effective representation in this court, obtained all that trial counsel could have secured.
Facts--Raven Appeal (Crim. No. 26594)
Defendant Raven was charged with: (count I) assault with intent to commit rape, in violation of section 220 of the Penal Code; (count II) assault by means of force likely to produce great bodily injury, in violation of section 245 of the Penal Code; and (count III) kidnapping in violation of section 207 of the Penal Code. After a jury trial, defendant was convicted on all three counts. He was sentenced to state prison, the sentences on counts I and II being suspended according to the Niles formula. He has appealed; we reverse [123 Cal.Rptr. 773] the judgment and remand for further proceedings.
People v. Niles (1964) 227 Cal.App.2d 749, 39 Cal.Rptr. 11.
The victim had visited a friend during the evening of June 25, 1974. At about midnight, her expected transportation home having failed, she walked to a street corner, where she 'thumbed' a ride with defendant and his brother. Although she asked to be taken to her home, defendant drove past the proper turn-off for that destination and drove her, over her protests, for some distance. Ultimately she was allowed to get out of the car. During the ride, defendant and his brother hit her several times, threw her to the floor of the vehicle, kicked her, forceably restrained her from leaving the vehicle, and defendant told her that he intended to have sexual intercourse with her.
On this appeal, defendant contends that the evidence was insufficient to support the verdicts on any of the three counts, and that the trial court failed to give the standard cautionary instruction.
The Kidnapping Counts
Section 207 of the Penal Code provides, insofar as is here pertinent, as follows:
'Every person who forcibly steals, takes, or arrests any person in this state, and carries him into another . . . part of the same county . . . is guilty of kidnapping.'
In People v. Stephenson (1974) 10 Cal.3d 652, 111 Cal.Rptr. 556, 517 P.2d 820 defendant, pursuant to a scheme to rob, induced passengers alighting at an airport to accept rides from him on his promise to drive them to their homes. Instead of so doing, he robbed them and then forced them from his car at a point far distant from their desired destination. The Supreme Court held that, in the case of the victims who had voluntarily entered defendant's car, no kidnapping had occurred, since the defendant had not used force in order to get them to enter his car. The People seek to distinguish Stephenson on the ground that, in that case, the victims were not forceably restrained from leaving the car, whereas in the two cases at bench, such forceable restraint had occurred. They rely on the language in People v. Gallagher (1958) 164 Cal.App.2d 414, at page 420, 330 P.2d 464, at page 467, where the court said: 'It is settled that where the victim has at first willingly accompanied the accused, the latter may nevertheless be guilty of kidnaping if he subsequently restrains his victim's liberty by force and compels the victim to accompany him further.' The statement of the offense in 1 Witkin, California Crimes (1963) section 315, page 322, is the same.
We conclude that the later statement in Stephenson is controlling and that the kidnapping convictions cannot stand.
Since we modify the judgment in the Raven case for the reason set forth in the text, we need not consider the contention made by his appellate counsel that the transportation of the victim was merely incidental to the assaults. (Cf. People v. Stanworth (1974) 11 Cal.3d 588, 599, 114 Cal.Rptr. 250, 522 P.2d 1058.)
However, it is clear that both victims were restrained of their liberty within the meaning of sections 236 and 237 of the Penal Code. The offense of false imprisonment, as therein defined, is a lesser and included offense with the crime of kidnapping. (People v. Morrison (1964) 228 Cal.App.2d 707, 39 Cal.Rptr. 874.) Accordingly the judgments must be modified to judgments of conviction of false imprisonment, in violation of sections 236 and 237 of the Penal Code, in place of judgments of conviction of kidnapping.
The Assault Counts in Raven
Defendant contends that the evidence does not support the two assault counts. We disagree. Although defendant Raven had not succeeded in raping his victim, nor in beginning an actual rape, the jury could find, from his remarks, his conduct,, [123 Cal.Rptr. 774] and the force used to prevent the victim's escape, that he intended to achieve sexual intercourse by means of whatever force was necessary. Whether the force used on the victim was likely to cause 'great bodily injury' was for the jury; we do not redetermine their conclusion. (People v. Wells (1971) 14 Cal.App.3d 348, 92 Cal.Rptr. 191.)
The Failure to Give CALJIC 10.22
Defendant Raven contends that it was error not to give CALJIC 10.22, the standard cautionary instruction in cases involving rape. However, the failure to give that instruction is not prejudicial where the evidence against the defendant is strong. Here the victim's testimony was corroborated not only by the condition of her clothing, the personal injuries suffered, and the testimony of a witness who had seen her struggles to leave the car and had followed defendant's car until he ultimately released her. No ground for reversal for the failure to instruct according to CALJIC 10.22 exists.
Cf. People v. Rincon-Pineda (1975) Cal., 123 Cal.Rptr. 119, 538 P.2d 247.
Since we direct the modification of the kidnapping counts to convictions of false imprisonment, it follows that the trial court's application of the Niles formula in the Raven case is incorrect, and we must remand that case to the trial court both to make the necessary modification and to reconsider the relationship of the offenses for the purpose of sentencing.
In case No. 26496, the judgment is modified by deleting the reference therein to the offense of kidnapping and substituting therefor the statement that defendant is convicted of false imprisonment, in violation of sections 236 and 237 of the Penal Code, a lesser and included offense within the offense charged in the information. As so modified, the judgment is affirmed.
In case No. 26594, the judgment as entered is reversed and the case is remanded to the trial court with instructions to enter a new judgment in accordance with this opinion.
FILES, P. J., and JEFFERSON, J., concur.
Retired Justice of the Court of Appeal, assigned by the Chairman of the Judicial council.