Opinion
H029346
4-30-2007
THE PEOPLE, Plaintiff and Respondent, v. JACOB WENDELL CONWAY, Defendant and Appellant.
NOT TO BE PUBLISHED
Defendant Jacob Conway was convicted after jury trial of two counts of kidnapping to commit robbery (Pen. Code, § 209, subd. (b)), two counts of first degree burglary (§ 459), six counts of residential robbery in concert (§§ 211, 212.5, 213, subd. (a)(1)(A)), four counts of assault with a firearm (§ 245, subd. (a)(2)), and seven counts of false imprisonment by violence (§§ 236, 237, subd. (b)). The jury found true allegations as to all the kidnapping, burglary, robbery and false imprisonment offenses that defendant possessed a handgun during the commission of the offenses (§ 12022, subd. (a) (1)). The trial court sentenced defendant to the indeterminate term of life with the possibility of parole, consecutive to the determinate term of 10 years.
All further statutory references are to the Penal Code.
On appeal defendant contends that (1) the court erred in giving CALJIC No. 2.04 while not giving CALJIC No. 2.01, which denied him due process and a fair trial; (2) his counsel rendered ineffective assistance by failing to request instructions on the defense theory of mistaken voice identification; (3) the cumulative impact of these two errors denied defendant due process and a fair trial; (4) the court misinstructed the jury on the elements of kidnapping to commit robbery; and (5) the evidence is insufficient to support the kidnapping to commit robbery convictions. We disagree with all these contentions and will affirm the judgment.
BACKGROUND
Defendant was charged by third amended information with two counts of kidnapping to commit robbery (§ 209, subd. (b); counts 1 & 2), two counts of first degree burglary (§ 459; counts 3 & 4), six counts of first degree residential robbery (§§ 211, 212.5, 213, subd. (a)(1)(A); counts 5-10), four counts of assault with a firearm (§ 245, subd. (a)(2); counts 11-14), and seven counts of false imprisonment by violence (§ 236; counts 15-21). The information further alleged as to counts 1 through 10 and 15 through 21 that defendant was armed with and personally used a handgun during the commission of the offenses. (§§ 12022, subd. (a)(1), 12022.5, subd. (a), 12022.53, subd. (b), 1192.7, subd. (c)(8).)
The Prosecutions Case
In May 2004, college students Hilary Glenn, Geoffrey Kortbawi, Amanda Ward and Jonathan Erikson moved from the dorms into a house on Clay Street. All of them had smoked marijuana in the dorms and continued to do so at the house, and Kortbawi bought and sold marijuana both before and after the move. Kortbawi began growing marijuana for medicinal purposes in the garage below the house in July 2004.
Kortbawi had a medicinal marijuana card on December 12, 2004, and testified under a grant of use immunity under section 1324.
The Clay Street house sat back behind another house with a different address. In December 2004, Ward was dating Ian Miller, another student, who lived in the front house. Students Christopher Bella, Alfred Chu, Sean Kane and Robbie Zuk also lived in the front house. The distance between the front house and back house is approximately 25 to 30 feet.
Defendant, who was Kortbawis long-time friend, stayed at the back house for about two weeks in November 2004 at Kortbawis invitation. During defendants stay he spent most of his time in the living room and in Kortbawis room. Defendant asked Kortbawi where he kept his marijuana and money, and Kortbawi said that he kept them at the house. Kortbawi had one to two pounds of marijuana in his room at the time. Defendant had two to three pounds of marijuana, some of it in jars and some still on the stalk, and some grow lights when he arrived at the house. He trimmed and dried his marijuana during his stay and left with it when the process was done, but his grow lights remained in the garage below the house. Once, before he left, defendant told Kortbawi that the best way to commit a robbery was to get somebody as he was going in or coming out of a house, and walk him in.
Glenn considered defendant to be a nice guy who was fun to be around. She and Erikson sometimes smoked defendants marijuana with him. Ward did not like defendant because he said inappropriate things and made romantic overtures to her. Miller had no problem with defendant. Every day defendant was at the back house he wore an Army-style camouflage jacket.
The December 11-12, 2004 Incident
On the afternoon of Saturday, December 11, 2004, Glenn and Ward went shopping for Christmas decorations and presents for Kortbawi and Erikson. That evening, the four housemates decorated the house and a tree, baked cookies, exchanged presents, and smoked marijuana. Ward packed a duffel bag, some presents, and a backpack in preparation for returning home the next day. She left the duffel bag and presents in her room and went to the front house with a backpack around 9:30 or 10:00 p.m. Erikson went to bed with the door open around 10:30 p.m. Cameron Kaplan came over to help Kortbawi dispose of defendants grow lights, and stayed to talk with Glenn and Kortbawi for a while.
Around 11:30 p.m., Kortbawi and Kaplan got up to leave. Glenn went to the top of the stairs and watched the men go out the door. Somebody came up behind Kortbawi and said, "`dont move. "Kortbawi ran. When he was partway down the driveway he heard a gun go off. He looked over his shoulder and saw muzzle flare near the front house and a black male shooter, who was wearing a mask and dark clothing. Kortbawi stopped and the man grabbed him by the arm and pointed the gun at him. While the door to the back house was still open, Glenn heard Kaplans frightened voice and a gunshot that seemed to come from right outside the door. She froze. In the front house Miller, Ward, Bella, and his visiting friend Chadford Yamate, heard a gunshot. Miller and Ward looked outside Millers bedroom window but did not see anything. Bella and Yamate dismissed it.
A black man wearing a bandana over his face, a hood and gloves, and carrying a gun put the gun to Glenns head, grabbed her, ushered her to the living room, and put her face down on the floor. A second man, who appeared to be Asian, and who was shorter and stockier than the first man and who was wearing a full mask, put Kaplan down beside Glenn. The black man who shot at Kortbawi took Kortbawi back into the back house and put him down on the floor away from Kaplan. Erikson had awakened and a man with a gun told him to get down on the floor of the living room, so he did. Two men stood over Glenn, Kaplan, Erikson and Kortbawi with guns, and told the four students not to look at them, while at least three other men ran around the house. One of the men patted down Kaplan and took whatever he had on him. Glenn heard the men shouting, "where is all the stuff," and believed that they were looking for Kortbawis money and marijuana. Glenn could hear the men turning over and throwing things, and could see three or four pairs of shoes running around. She thought one pair of boots, which were black, thick-soled Army-style boots, reminded her of boots she had seen defendant wearing when he was staying at the house.
The men got Kortbawi, Erikson, and Kaplan up, told them to keep their eyes down, put them in Wards room, and had them lie down on the bed with their hands behind their backs. Kortbawi was then taken to his room at gunpoint by the man who had shot at him. The man asked Kortbawi where his money and valuables were. When Kortbawi said that he had nothing, the man hit Kortbawi in the face with the gun. Another man came and took Kortbawi towards the bathroom. While Kaplan and Erikson were being moved from Wards room to the bathroom, Kortbawi saw a man near the kitchen who looked like defendant. Defendant was wearing the same type of camouflage jacket he always wore and he had a gun pointed towards the ground. Their eyes met for several seconds, but defendant did not say anything. After Kortbawi, Kaplan and Erikson were in the bathroom and the bathroom door was closed, Kortbawi heard people continue to go through things in the house for another 10 minutes. About 15 minutes or so after the noises stopped, somebody knocked on the door and told them to stay where they were. Nobody left the bathroom for another 10 to 15 minutes. When Kortbawi went outside, he saw Miller coming from the back of the front house.
When Kortbawi, Kaplan and Erikson were put in the bathroom, the second man took Glenn by the arm, told her that she was going with him, and led her towards the front door. Glenn was afraid that she was going to be raped or killed. As she passed by the door to Kortbawis room she stopped because she thought she recognized the man standing inside the room. The man was wearing the same Army-style camouflage jacket defendant used to wear, and he was tall and lanky. When the mans eyes met Glenns eyes, the mans eyes got bigger and there was movement under his bandana as though his jaw had dropped. Glenn thought to herself that the man was defendant, and it made her angry. The man first froze and then turned away. He was wearing gloves and holding a gun in his hand, and Kortbawis room was trashed. The drawers of Kortbawis desk and his dresser, which is where he kept his marijuana, money and valuables, were emptied and on the floor.
The man who was holding Glenn by the arm tugged at her arm and, when she did not move, hit her on the back of the head, causing her to fall down. Glenn got back up and the man took her to the top of the stairs. When she did not want to go down the stairs, he grabbed her by her ponytail, dragged her down the stairs, and forcibly sat her down. Waving his gun in her face, the man told Glenn that they were going to go to the front house, that she was going to knock on the back door, and that they were going to rob the house. The man told Glenn not to scream or to try to run away because there were people in the driveway. When Glenn refused to go with the man, he hit her on the back of her head with the gun. He then called for help and the first man, the black man with the gun, came running down the stairs.
The second man held his gun to Glenns temple and walked her out the front door. The first man walked out behind them. When the three of them got to the back door of the front house, Glenn saw a man run from in back of her towards the front gate. She turned and recognized the man as defendant; he was tall and lanky and was wearing the same jacket and carrying the same gun as before. The second man told Glenn to knock on the door, so she did. When Bella answered the door, Glenn told him to get Miller. The second man put his gun and arm into open the doorway. Bella tried to shut the door but the man pushed Glenn aside and entered the front house.
The second man grabbed Glenns arm, and the first man grabbed her shoulder and hair, and dragged her inside. Glenn was struggling with the men as they walked her and Bella into the living room where Yamate was watching television. Two other men entered with them and told the students to look down. The first man sat Glenn down on a couch facing Yamate. Bella sat down next to her. The first man took Glenn off the couch and shoved her to the floor on her knees. They did the same with Bella and Yamate. When Glenn starting swearing at the men, the first man hit her across the side of her face.
Miller and Ward heard loud voices in the living room. After a few minutes, Miller poked his head out his bedroom door. The first man then ran over to the door, opened it, went inside the room, and came out with Miller and Ward, holding a gun to their backs. The men then put Glenn, Bella, Yamate, Miller and Ward in Chus room and told them to lie on the floor. While Miller was walking toward Chus room, he looked to his side and recognized defendants camouflage jacket and defendants partially covered face as defendant was walking away from him. The second man stayed in Chus room with his gun on the students. While in the room, the man went through the drawers of a dresser and took a big bag of candy that he found.
For several minutes the students could hear the house being ransacked. Miller also heard defendants voice coming from his room, saying, "`No, take the bitchs keys"; Miller recognized defendants southern accent. After headlights from the driveway shone into Chus room, the man with the gun said that everybody should stay in the room because people were watching all of the exits. The man left the room, closing the door behind him, and the students stayed in the room. After several minutes, Miller told everybody to stay in the room until he returned. He then left, closing the door behind him. He saw two knives on the floor of the living room and saw that his room was trashed. He looked in all of the other rooms in the house, then went out the back door and checked the back garage and back house. He returned after another several minutes and told everybody that the men were gone and that he found Kortbawi, Erikson and Kaplan.
Glenn ran out of Chus room and into the courtyard between the front and back houses. She found Kortbawi, who had bruises on his face, and asked him whether he was okay. She then told him that she had seen defendant and that the men had hit her. Kortbawi asked Glenn not to tell the police that she had seen defendant.
In the back house, the mattress in Glenns room was thrown about, and her laptop, digital camera and portable CD player were missing. The drawers were out in Eriksons room, things were thrown around, and his cell phone and money from his wallet were missing. The bed in Kortbawis room was flipped over, the closet was torn apart, clothes and other items were thrown everywhere, and his wallet and money were missing. The desk and computer in Wards room were in pieces, items were thrown about the room, her Xbox and some presents were missing, a marijuana plant container had been ripped apart, and there was dirt on her bed and on the floor. There was also dirt in the living room where the marijuana plant was uprooted, and all the DVDs were missing from the entertainment center.
In the front house, kitchen knives were lying around the house. Millers Xbox and computer and Eriksons Xbox and a bag containing his snowboard, boots and winter clothing that had been brought from the back house were missing from the living room. The desk in Millers room was broken into pieces, his bed was overturned, the bowl where he kept some money and keys was empty, there were clothes everywhere, and his DVDs and Wards backpack were missing. The dresser in Bellas room had been moved and damaged, things were piled in the middle of the room, and his guitar, laptop and loose change were missing. The door to Kanes room was kicked in, the lock was broken, and a guitar was missing. Zuks attic room was trashed and his laptop was missing.
Kaplan asked that nobody mention that he had been there and then left. It was around 1:00 a.m. on Sunday, December 12, 2004, when Kortbawi and Miller separately called the police on their cell phones. When the police arrived Kortbawi did not tell them that Kaplan had been at the house or that he had seen defendant. About a week after the robbery, Kortbawi told Glenn that he, too, had seen defendant during the robbery. Kortbawi did not tell the police about seeing defendant until after Detective Bush told him what Glenn and Miller had reported.
Erikson, Yamate, Bella, and Ward each spoke to officers for about five minutes on December 12, 2004. Miller told an officer that he recognized defendant, but he does not remember specifically what he said. Glenn spoke to an officer for about 20 minutes. Glenn was shaken up and wanted to leave, so she did not give the officer a very detailed account of what happened. She did not say that she had seen defendant and she did not say that Kaplan was there. She gave a description of three men, a black man, and Asian man, and the white man she believed to be defendant. She said that the white man was tall and lanky, that he was wearing a camouflage jacket, and that he had brown eyes. She then left for a friends house. She contacted the police later that day and told them that she knew one of the men involved in the robbery and gave them a photograph showing defendant wearing his camouflage jacket. Several days later Glenn told Detective Bush the whole story, but still left out the information that Kaplan had been there.
Santa Cruz Police Detective Jonathan Bush spoke with defendant on the telephone for about five minutes on January 3, 2005. He spoke to defendant at a courthouse in Alameda County on January 13, 2005 for about 30 minutes, and he spoke to defendant at the Santa Cruz county jail on May 12, 2005. Detective Bush described defendant as having a Southern accent. Defendant has blue, not brown, eyes.
Sometime between January 13 and 18, 2005, defendant called his stepfather from the Alameda county jail, and his telephone call was recorded as announced at the beginning of the call. A copy of the recording was given to Detective Bush by jail personnel. The recording, exhibit No. 15, was played for the jury. During the call, defendant told his stepfather that he needed to know where he, defendant, was on December 12, 2004. "Okay, um, `cause I was w____, I was with her, with you. I was — I dont know, you know what Im, saying. I want to know what I was doing that night `cause thats the night that dude got robbed. So they got witnesses . . . [¶] said they, they seen somebody up in the house, but I stayed there, so that why they . . . . I need witnesses saying that I was with `em . . . [¶] on December 12th." "I need to see what I was doing `cause I know I wasnt there, so I mean, I need to find out what I was doing so I could get, uh, some witnesses." "You know what I mean?" "I just need to know what I was doing on December 12th, . . . You know what I mean? Whether we went to a movie. I — I think we went to a movie. I — Im not even sure what I did that night." "Im gonna call you tomorrow, see what you can do for me."
The Defense Case
Officer Sergio Venegas arrived at the Clay Street homes around 1:30 a.m. on December 12, 2004. He briefly spoke to Miller and then to Erikson, Bella, and Kortbawi. All of the students were upset and wanted to leave. Kortbawi said that he ran from his house down the driveway after being confronted by gunmen. He could not say how many people there were. He said that heard a gunshot and stopped. Officer Venegas did not find any bullets, shell casings, or marks in the fence in the area Kortbawi indicated the gun was fired. Glenn said that the man with the camouflage jacket was wearing camouflage pants. She did not say that she knew any of the robbers. Officer Venegas looked into the back house and its garage. He found 85 marijuana plants, heat lamps, fertilizer and pots in the garage. Venegas was at the scene for about one to one and one-half hours. He did not seize the marijuana plants.
Officer Holly Hoy arrived at the Clay Street homes around 1:45 a.m. on December 12, 2004. She spoke to Miller, who was upset and talked fast. Miller said that he was sure that he recognized one of the intruders. He gave the name Jake, gave a physical description of the person, and said that the person speaks with a Southern accent. He said that the intruder was wearing dark clothing and a dark blue or black ski mask, but he did not mention a camouflage jacket.
When Detective Bush spoke to Glenn on December 21, 2004, Glenn said that defendant was wearing a blue or green bandana, and that she did not realize until later that day that it was defendant. When Detective Bush spoke to Kortbawi on December 22, 2004, Kortbawi said that when he was taken back inside his house he was made to lie down on the floor beside Glenn, and that he was hit with the butt of a gun while he was in the bathroom.
Verdicts and Sentencing
On August 2, 2005, just prior to when the prosecution rested, the court granted defendants motion under section 1118.1 to dismiss the personal use allegations as to counts 1 through 10 and 15 through 21. (§§ 12022.5, subd. (a), 12022.53, subd. (b), 1192.7, subd. (c)(8).) On August 5, 2005, the jury found defendant guilty of all 21 counts and found that he possessed a handgun during the commission of the kidnapping for robbery, burglary, residential robbery in concert, and false imprisonment by violence counts. On September 14, 2005, the trial court sentenced defendant to the indeterminate term of life with the possibility of parole, consecutive to the determinate term of 10 years.
DISCUSSION
CALJIC Nos. 2.01 and 2.04
The court instructed the jury with CALJIC Nos. 2.00 [Direct and circumstantial evidence—inferences], 2.02 [sufficiency of circumstantial evidence to prove specific intent or mental state], and 2.04 [efforts by defendant to fabricate evidence]. The court did not give CALJIC No. 2.01 [sufficiency of circumstantial evidence—generally].
"Evidence consists of testimony of witnesses, writings, material objects, or anything presented to the senses to prove the existence or non-existence of a fact. [¶] Evidence is either direct or circumstantial. [¶] Direct evidence is evidence that directly proves a fact. It is evidence which by itself, if found to be true, establishes that fact. Circumstantial evidence is evidence that, if found to be true, proves a fact from which an inference of the existence of another fact may be drawn. [¶] An inference is a deduction of fact that may logically and reasonably be drawn from another fact or group of facts established by the evidence. [¶] It is not necessary that facts be proved by direct evidence. They also may be proved by circumstantial evidence or by a combination of direct and circumstantial evidence. Both direct and circumstantial evidence are acceptable as a means of proof. Neither is entitled to any greater weight than the other." (See CALJIC No. 2.00.)
"The specific intent with which an act is done may be shown by the circumstances surrounding the commission of the act. However, you may not find the defendant guilty of the crime charged in Counts 1-10, or the crime of kidnapping, which is a lesser crime of Counts 1 and 2, unless the proved circumstances are not only (1) consistent with the theory that the defendant had the required specific intent but (2) cannot be reconciled with any other rational conclusion. [¶] Also, if the evidence as to any specific intent permits two reasonable interpretations, one of which points to the existence of the specific intent and the other to its absence, you must adopt that interpretation which points to its absence. If, on the other hand, one interpretation of the evidence as to the specific intent appears to you to be reasonable and the other interpretation to be unreasonable, you must accept the reasonable interpretation and reject the unreasonable." (See CALJIC No. 2.02.)
"If you find that a defendant attempted to persuade a witness to testify falsely or attempted to fabricate evidence to be produced at trial, that conduct may be considered by you as a circumstance tending to show a consciousness of guilt. However, that conduct is not sufficient by itself to prove guilt and its weight and significance, if any, are for you to decide." (See CALJIC No. 2.04.)
"However, a finding of guilt as to any crime may not be based on circumstantial evidence unless the proved circumstances are not only (1) consistent with the theory that the defendant is guilty of the crime, but (2) cannot be reconciled with any other rational conclusion. [¶] Further, each fact which is essential to complete a set of circumstances necessary to establish the defendants guilt must be proved beyond a reasonable doubt. In other words, before an inference essential to establish guilt may be found to have been proved beyond a reasonable doubt, each fact or circumstance on which the inference necessarily rests must be proved beyond a reasonable doubt. [¶] Also, if the circumstantial evidence [as to any particular count] permits two reasonable interpretations, one which points to the defendants guilt and the other to [his] [her] innocence, you must adopt that interpretation that points to the defendants innocence, and reject that interpretation that points to [his] [her] guilt. [¶] If, on the other hand, one interpretation of this evidence appears to you to be reasonable and the other interpretation to be unreasonable, you must accept the reasonable interpretation and reject the unreasonable." (CALJIC No. 2.01.)
Defendant requested that the court give CALJIC No. 2.01 and objected to the giving of CALJIC No. 2.04, arguing that there was no evidence to support it. The prosecutor argued that there was evidence to support the giving of CALJIC No. 2.04 as a legitimate inference could be drawn from defendants recorded telephone conversation with his stepfather that defendant was requesting that his stepfather provide him with alibi witnesses. The court found that CALJIC No. 2.04 "may be applicable." "The Court finds that the tape-recording that was entered into evidence that is between the defendant and the stepfather is sufficiently established to indicate that this was an effort, perhaps arguably, to fabricate evidence based on the conversation . . . ." The court further stated that it was giving CALJIC No. 2.02 and not 2.01 "based on the CALJIC use note and comments in that regard and the fact that there is not substantial evidence in this case of circumstantial evidence as it relates to the various facts and events. The Peoples case rests almost completely on direct evidence except where it relates to the specific intent and, therefore, the Court believes that 2.02 is appropriate and should be given as well as the mental state, the knowing aspect of it as it relates to [CALJIC No. 1.21]. [¶] . . . [¶] . . . And so in that regard, the specific intent and mental state seems to be appropriate focus for any circumstantial evidence and 2.02 will be given."
The Use Note to CALJIC No. 2.02 (Fall 2006 ed.) page 34 states in relevant part: "CALJIC 2.01 and CALJIC 2.02 should never be given together. This is because CALJIC 2.01 is inclusive of all issues, including mental state and/or specific intent, whereas CALJIC 2.02 is limited to just mental state and/or specific intent. Therefore, they are alternative instructions. If the only circumstantial evidence relates to specific intent or mental state, CALJIC 2.02 should be given. [I]f the circumstantial evidence relates to other matters, or relates to other matters as well as specific intent or mental state, CALJIC 2.01 should be given and not CALJIC 2.02."
On appeal, defendant contends that, in combination, the courts omission of CALJIC No. 2.01 and its giving of CALJIC No. 2.04 permitted an improper finding of guilt. He argues that CALJIC No. 2.04 had insufficient evidentiary support and that the prosecution relied on other material circumstantial evidence besides the recorded telephone call: Kortbawis testimony regarding defendants statement about the best way to commit a robbery; the photograph Glenn gave to police showing defendant wearing a camouflage jacket, along with testimony that defendant always wore the jacket while he stayed at the Clay Street house; testimony by the victims that they recognized defendants camouflage jacket and boots; and Glenns testimony that defendant froze, opened his eyes wide, and dropped his jaw when she looked him in the eyes. Defendant further argues that CALJIC No. 2.04 was improper as argumentative, and as a cautionary instruction given over his objection.
The Attorney General argues that the evidence was more than sufficient to support the giving of CALJIC No. 2.04. The Attorney General further argues that, because the prosecutor primarily relied on direct evidence of guilt except as to specific intent or other mental states, the court properly gave CALJIC No. 2.02 while declining to give CALJIC No. 2.01.
CALJIC No. 2.04 and other "consciousness of guilt" instructions make "clear to the jury that certain types of deceptive or evasive behavior on a defendants part could indicate consciousness of guilt, while also clarifying that such activity was not of itself sufficient to prove a defendants guilt, and allowing the jury to determine the weight and significance assigned to such behavior. The cautionary nature of the instructions benefits the defense, admonishing the jury to circumspection regarding evidence that might otherwise be considered decisively inculpatory. [Citations.]" (People v. Jackson (1996) 13 Cal.4th 1164, 1224.) The inference of guilt suggested by CALJIC No. 2.04 is a permissive one. (Cf. People v. Rankin (1992) 9 Cal.App.4th 430, 436.) The instruction applies "`to situations where a defendant attempts to induce a witness to lie for him in a judicial proceeding or otherwise tries to fabricate evidence when a trial or prosecution is pending." (People v. Jackson, supra, 13 Cal.4th at p. 1225.) Where there is no evidence to support the instruction, "at worst" it is "superfluous," and, where the evidence of guilt is strong, reversal is not warranted. (People v. Pride (1992) 3 Cal.4th 195, 249; People v. Jackson, supra, 13 Cal.4th at p. 1225.)
In this case, we agree with the Attorney General that the jury could infer from the tape recording that defendant, needing an alibi to refute testimony placing him at the scene of the robbery on the morning of December 12, 2004, wanted his stepfather to help him. "The repeated statement `I need witnesses, and the repeated question, `you know what I mean? could rationally be interpreted as a solicitation to find someone, willing to testify that [defendant] was elsewhere `the night that dude got robbed." Even if we were to find that the tape recording did not support the giving of CALJIC No. 2.04, reversal is not warranted as the evidence supporting defendants conviction is strong. Three victims of the incident on the night and morning of December 11-12, 2004, separately identified defendant as one of the robbers: they identified defendant by his build, his camouflage jacket, his boots, and his voice.
In light of the victims testimony directly identifying defendant as one of the robbers, the prosecution did not need to rely on circumstantial evidence in order to make its case. The circumstantial evidence defendant points to on appeal merely served to corroborate the main evidence in the prosecutions case. The victims testimony established that defendant either personally committed each of the charged offenses or aided and abetted others in their commission. Only defendants specific intent at the time the offenses were committed needed to be proved by circumstantial evidence, and the trial court appropriately instructed the jury on the use of circumstantial evidence to prove specific intent by giving CALJIC No. 2.02. Thus, the trial court appropriately denied defendants request to give CALJIC No. 2.01, and no denial of due process has been shown.
Ineffective Assistance
During the discussion of jury instructions the court stated that it intended to give CALJIC Nos. 2.90 [presumption of innocence—reasonable doubt—burden of proof], 2.91 [burden of proving identity based solely on eyewitnesses], and 2.92 [factors to consider in proving identity by eyewitness testimony]. Defendants counsel did not object to the giving of the instructions. Nor did counsel request modification or amplification of the standard instructions.
In closing argument, defendants counsel told the jury that "[t]his is a case of mistaken identification." He argued that "eyewitness identification evidence is not really reliable." "Why is this sort of evidence not reliable? Because the opportunity to observe when a crime is occurring is very brief. You have a brief glimpse of something happening." "And also in stressful unexpected situations our ability to identify someone is decreased because what were really concerned about is our own personal safety." "And, as someone said in jury selection, there is no correlation between whether or not someone is confident in their identification and whether or not that identification is, in fact, accurate." "Now, usually people are mistakenly identified because they resemble somebody else." "This case is an eyewitness identification case where no one is actually saying or claiming that they saw [defendants] face at . . . Clay Street back on December 12th of last year. Instead what these people are doing is they are making inferences based on seeing either an item of clothing or, in the case of Mr. Miller, hearing a voice approximately two rooms over, four words spoken. They are all inferring from these things that [defendant] was there." "They claimed to have seen [defendant] almost simultaneously wearing a blue or green bandana and a full ski mask with just the eyes cut out. They claimed to have seen him almost simultaneously with a silver gun or a black gun. They at times say he has a southern accent, but at other times they say he has a western accent." "The eye color thing is a problem." "These kids have either individually or collaboratively jumped to the entire wrong conclusion." "They would have you believe that what is counter intuitive, that someone would deliberately wear a jacket that everybody would immediately recognize and associate with you during a home invasion robbery and that you would announce your intentions two weeks in advance."
At the close of his argument, counsel directed the jurors attention to CALJIC No. 2.91. "Its an instruction that was designed for cases like this and it reads — and the Court has already read this to you — `The burden is on the People to prove beyond a reasonable doubt that the defendant is the person who committed the crime with which he was charged. If after considering the circumstances of the identification and any other evidence in this case you have a reasonable doubt whether the defendant was the person who committed the crime you must give the defendant the benefit of that doubt and find him not guilty."
On appeal, defendant contends that counsels failure to request jury instructions supportive of his defense theory of mistaken voice identification, such as Forecite No. 2.92d, constituted ineffective assistance. "While the standard CALJIC eyewitness instructions were given, counsel failed to request that they be amplified to facilitate a more careful evaluation of the evidence in support of the defense theory. Given conflicting evidence at trial, more focused guidance from the trial court may well have resulted in a jury finding of reasonable doubt. Counsels omission therefore constitutes ineffective assistance, requiring reversal."
"A defendant seeking relief on the basis of ineffective assistance of counsel must show both that trial counsel failed to act in a manner to be expected of reasonably competent attorneys acting as diligent advocates, and that it is reasonably probable a more favorable determination would have resulted in the absence of counsels failings." (People v. Price (1991) 1 Cal.4th 324, 440; see also Strickland v. Washington (1984) 466 U.S. 668, 687-696.)
As given, CALJIC No. 2.92 informed the jury: "Eyewitness testimony has been received in this trial for the purpose of identifying the defendant as the perpetrator of the crimes charged. In determining the weight to be given eyewitness identification testimony, you should consider the believability of the eyewitness as well as other factors which bear upon the accuracy of the witnesss identification of the defendant, including, but not limited to, any of the following: [¶] The opportunity of the witness to observe the alleged criminal act and the perpetrator of the act; [¶] The stress, if any, to which the witness was subjected at the time of the observation; [¶] The witnesss ability, following the observation, to provide a description of the perpetrator of the act; [¶] The extent to which the defendant either fits or does not fit the description of the perpetrator previously given by the witness; [¶] The cross-racial or ethnic nature of the identification; [¶ The witnesss capacity to make an identification; [¶] Evidence relating to the witnesss ability to identify other alleged perpetrators of the criminal act; [¶] Whether the witness was able to identify the alleged perpetrator in a photographic or physical lineup; [¶] The period of time between the alleged criminal act and the witnesss identification; [¶] Whether the witness had prior contacts with the alleged perpetrator; [¶] The extent to which the witness is either certain or uncertain of the identification; [¶] Whether the witnesss identification is in fact the product of his/her own recollections; and [¶] Any other evidence relating to the witnesss ability to make an identification."
"CALJIC No. 2.92 or a comparable instruction should be given when requested in a case in which identification is a crucial issue and there is no substantial corroborative evidence." (People v. Wright (1988) 45 Cal.3d 1126, 1144.) Defense counsel should be given "an opportunity to suggest additional factors to supplement those listed in the standard instruction." (Id. at p. 1143.) "As with eyewitness identification, some factors pertaining to voice identification might not be widely known or may be counterintuitive." (People v. Clark (1992) 3 Cal.4th 41, 137.)
Even assuming defendants counsel should have requested modification of CALJIC No. 2.92, such as described in Forecite No. 2.92b, defendant was not prejudiced by the failure to do so in this case. Besides Millers eyewitness and voice identification testimony, both Kortbawi and Glenn testified that they recognized defendant as one of the robbers. In closing argument, defense counsel went through the factors listed in CALJIC No. 2.92 as they pertained to each of these students testimony. CALJIC No. 2.92 substantially covers the factors Forecite No. 2.92b covers, although it obviously uses different language. In addition, a number of instructions in addition to CALJIC Nos. 2.90, 2.91 and 2.92 supported defense counsels argument challenging the validity of the students credibility and testimony. For instance, the jury was given the standard instructions on witness credibility (CALJIC No. 2.20), discrepancies in testimony (CALJIC No. 2.21.1), a witness who is willfully false (CALJIC No. 2.21.2), weighing conflicting testimony (CALJIC No. 2.22), and the sufficiency of testimony of one witness (CALJIC No. 2.27). Because these instructions adequately informed the jury how to evaluate the students credibility and counsel argued to the jury the factors it could consider in evaluating all of the eyewitness and voice identification testimony, defense counsel did not render ineffective assistance in not requesting modification or amplification of CALJIC No. 2.92 as argued on appeal. (Cf. People v. Mendoza (2000) 24 Cal.4th 130, 181-182.)
Cumulative Error
Defendant separately argues that the cumulative impact of the above-argued errors denied him due process and a fair trial. "[A] series of trial errors, though independently harmless, may in some circumstances rise by accretion to the level of reversible and prejudicial error. [Citations.]" (People v. Hill (1998) 17 Cal.4th 800, 844.) As we discussed above, we find that the court did not err in giving CALJIC Nos. 2.02 and 2.04, and that defendant was not prejudiced by counsels failure to request modification or amplification of CALJIC No. 2.92. Accordingly, no cumulative error has been shown.
Kidnapping for Robbery
Section 209, subdivision (b) states in pertinent part: "(1) Any person who kidnaps or carries away any individual to commit robbery, . . . shall be punished by imprisonment in the state prison for life with the possibility of parole. [¶] (2) This subdivision shall apply if the movement of the victim is beyond that merely incidental to the commission of, and increases the risk of harm to the victim over an above that necessarily present in, the intended underlying offense."
At the time of trial, CALJIC No. 9.54 stated in pertinent part: "Kidnapping is the unlawful movement by physical force of a person without that persons consent for a substantial distance where the movement is not merely incidental to the commission of the robbery and where the movement substantially increases the risk of harm to the person moved, over and above that necessarily present in the crime of robbery. [¶] In this crime, namely kidnapping to commit robbery, the risk of harm requirement refers to the risk of either physical or mental harm. [¶] Kidnapping is also the unlawful compulsion of another person without that persons consent and because of a reasonable apprehension of harm, to move for a substantial distance where such movement is not merely incidental to the commission of the robbery and where the movement substantially increases the risk of harm to the person moved, over and above that necessarily present in the crime of robbery. [¶] Brief movements to facilitate the crime of robbery are incidental to the commission of the robbery. On the other hand, movements to facilitate the robbery that are for a substantial distance rather than brief are not incidental to the commission of the robbery. [¶] In order to prove this crime, each of the following elements must be proved: [¶] 1. A person was moved by the use of physical force; [or] [¶] 1. A person was compelled to move because of a reasonable apprehension of harm; [¶] 2. The movement of that person was caused with the specific intent to commit robbery, and the person causing the movement had the required specific intent when the movement commenced; [¶] 3. The movement of the person was without that persons consent; [¶] 4. The movement of the person was for a substantial distance, that is, a distance more than slight, brief or trivial; and [¶] 5. The movement substantially increased the risk of harm to the person moved, over and above that necessarily present in the crime of robbery itself." (CALJIC No. 9.54 (Jan. 2005 ed.), italics added.)
Prior to trial, the prosecutor requested that, when instructing the jury at the close of the case, the court modify CALJIC No. 9.54 by deleting the word "substantially" as italicized above. Defendant objected to the proposed modification, but the court granted the request.
Defendant contends that the trial court misinstructed the jury on the elements of kidnapping to commit robbery as charged in counts 1 and 2. He argues that the courts modification of CALJIC No. 9.54, at the prosecutions request and over his objection, misstated two elements of the offense. First, the instruction failed to inform the jury that the victims movement must substantially increase the risk of harm to the victim. Second, the instruction failed to identify non-incidental movement as an element of the offense. In a related argument, defendant contends that retrial on counts 1 and 2 is barred as the evidence is insufficient to support the convictions.
In 1997, the Legislature amended section 209, subdivision (b), the aggravated kidnapping statute, adding the requirement in subdivision (b)(2) of an "increase of risk of harm." (People v. Ortiz (2002) 101 Cal.App.4th 410, 414-415.) Our Supreme Court in People v. Martinez (1999) 20 Cal.4th 225 (Martinez) stated that section 209, subdivision (b)(2), as amended in 1997, "codifies both [People v.] Rayford [(1994)] 9 Cal.4th 1 [(Rayford)], and a modified version of the People v. Daniels (1969) 71 Cal.2d 1119 . . . asportation standard. [Citations.] Unlike our decisional authority, it does not require that the movement `substantially increase the risk of harm to the victim. (Cf. People v. Daniels, supra, 71 Cal.2d at p. 1139.)" (Martinez, supra, 20 Cal.4th at p. 232, fn. 4.) Rather, "aggravated kidnapping requires movement of the victim that is not merely incidental to the commission of the underlying crime and that increases the risk of harm to the victim over and above that necessarily present in the underlying crime itself.
(§ 209[, subd.] (b)(2); see Rayford, supra, 9 Cal.4th at pp. 12, 22; People v. Daniels, supra, 71 Cal.2d at p. 1139.)" (Martinez, supra, 20 Cal.4th at pp. 232-233.)
Relying on the Commentary to CALCRIM No. 1203, defendant contends that the Martinez courts statement in footnote 4 that section 209, subdivision (b)(2) does not require that the movement of the victim "substantially" increase the risk of harm to the victim is merely dictum. Like the Commentary, defendant notes that People v. Nguyen (2000) 22 Cal.4th 872, 885-886 repeats the "substantial" increase in harm element without discussing the Martinez footnote, while People v. Ortiz, supra, 101 Cal.App.4th at page 415, followed Martinez and found that "it is enough that commission of the offense creates a risk of harm greater than that incidental to [the underlying offense]." Defendant urges this court to disagree with Ortiz and to find that a "substantial" increase in risk of harm need be shown. This we decline to do.
The wording of section 209, subdivision (b)(2) is clear and unambiguous: the subdivision applies when "the movement of the victim is beyond that merely incidental to the commission of, and increases the risk of harm to the victim over and above that necessarily present in, the intended underlying offense." "`[W]here the statute is "clear", "plain," and "unambiguous" on its face, so that taken by itself it is fairly susceptible of only one construction, that construction must be given to it and any inquiry into the purposes, background, or legislative history of the statute is foreclosed. [Citations.]" (People v. Weems (1997) 54 Cal.App.4th 854, 859.) Here, we conclude that the plain wording and meaning of section 209, subdivision (b)(2) does not support defendants claim that the movement of the victim must "substantially" increase the risk of harm to the victim over and above that necessarily present in the underlying offense. Accordingly, the trial court did not err by modifying CALJIC No. 9.54 over defendants objection.
Defendant also contends that the instruction as given did not require the jury to find an element of the offense, namely that the movement had to be more than incidental. He argues that there is a fundamental inconsistency between the instructions introductory language and its specification of each element of the offense that must be proved beyond a reasonable doubt: while the instruction twice defined kidnapping as involving movement that "is not merely incidental to the commission of the robbery," it was not expressly listed as among the five elements of the crime.
"If a jury instruction is ambiguous, we inquire whether there is a reasonable likelihood that the jury misunderstood and misapplied the instruction. (Estelle v. McGuire (1991) 502 U.S. 62, 72 & fn. 4; People v. Avena (1996) 13 Cal.4th 394, 417.)
`"`[T]he correctness of jury instructions is to be determined from the entire charge of the court, not from considerations of parts of an instruction or from a particular instruction. "[Citations.] [Citation.]" (People v. Smithey (1999) 20 Cal.4th 936, 963-964.)
Martinez stated that when aggravated kidnapping is charged, "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 movements substantiality." (Martinez, supra, 20 Cal.4th at p. 237.) "In determining `whether the movement is merely incidental to the [underlying] crime . . . the jury considers the "scope and nature" of the movement. [Citation.] This includes the actual distance a victim is moved. However, we have observed that there is no minimum number of feet a defendant must move a victim in order to satisfy the [requirement]. (Rayford, supra, 9 Cal.4th at p. 12; People v. Daniels, supra, 71 Cal.2d at p. 1128 . . . .)" (Martinez, supra, 20 Cal.4th at p. 233.)
The distance traveled is but one circumstance to consider, along with "the context of the environment in which the movement occurred." (Rayford, supra, 9 Cal.4th at p. 12.) "Thus, incidental movements are brief and insubstantial, and frequently consist of movement around the premises where the incident began. [Citations.] By contrast, relatively short distances have been found not to be incidental where the movement results in a substantial change in the `context of the environment. [Citations.]" (People v. Diaz (2000) 78 Cal.App.4th 243, 247.)
In this case we are confident that the jury was not misled by the instruction as given. Under the case law cited above, movement is not incidental to a crime (a) when the distance is substantial and (b) when the movement increases the risk of harm to the person moved, over and above that necessarily present in the crime itself. The instruction expressly required the jury to find both of these elements, ensuring that they implicitly found that the movement was more than incidental. Moreover, considering the instruction as a whole, it adequately communicated the idea that incidental movement is not enough. Even if the instruction might be regarded as ambiguous, the parties arguments clarified its application to this case. The prosecutor argued that the movements of the kidnapping for robbery victims were not incidental to the robberies as the robbers did not need to move Kortbawi from outside to inside the back house and Glenn from inside the back house to inside the front house in order to commit the robberies. Defense counsel argued that the movements of Kortbawi and Glenn were incidental to the robberies because they were not for substantial distances and were brief movements to facilitate the robberies.
We conclude in light of all the circumstances that there is no reasonable likelihood that the jury misunderstood the instruction and failed to determine that the movements of the victims here were more than incidental to the robberies. Accordingly, retrial on counts 1 and 2 is not required.
Defendant also contends that the evidence presented was insufficient to support the kidnapping for robbery counts as the evidence failed to show that either victims movement was more than incidental to the robberies. Citing People v. Williams (1970) 2 Cal.3d 894 (Williams), and People v. John (1983) 149 Cal.App.3d 798 (John), defendant argues that the movement of Kortbawi from the driveway into the back house and of Glenn between the two houses sharing the same driveway were movements incidental to, and solely to facilitate the commission of, the robberies.
In addressing a claim of insufficient evidence, we "review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Johnson (1980) 26 Cal.3d 557, 578; see also Jackson v. Virginia (1979) 443 U.S. 307, 319-320.)
In Williams, the movement of the kidnapping for robbery victim was on the premises of a gas station and on a sidewalk or street. (Williams, supra, 2 Cal.3d at p. 901.) The Supreme Court found, quoting Daniels, supra, 71 Cal.2d at p. 1140, that "`when in the course of a robbery a defendant does no more than move his victim around inside the premises in which he finds him—whether it be a residence, as here, or a place of business or other enclosure—his conduct generally will not be deemed to constitute the offense proscribed by section 209." (Williams, supra, 2 Cal.3d at p. 901.) The Williams court further found that, because the facts relating to the victims movements off the gas station premises were not fully developed at trial, the evidence was insufficient to support the kidnapping for robbery conviction. (Id. at p. 903.)
In John, the movement of the kidnapping for robbery victim was within the main house and the separate, detached pool house on property that also had several other residential units, all of which had the same address. (John, supra, 149 Cal.App.3d at pp. 801-803). The appellate court found that the movement of the victim was incidental to the robbery because the victim "was never forced to move outside of the interconnected living quarters shared by him and his parents." (Id. at p. 805.)
Here, Kortbawi was outside his living quarters, the back house, when he heard somebody come up behind him and tell him not to move. Kortbawi ran, and was partway down the driveway when he heard a gun go off. He stopped, and the shooter grabbed him by the arm, pointed the gun at him, and took him inside the back house, up a flight of stairs to the living room. Thus, Kortbawi was not moved merely inside the premises where the robbers found him. (Williams, supra, 2 Cal.3d at p. 901; John, supra, 149 Cal.App.3d at p.805.) Instead, he was moved at gunpoint from outside his living quarters, while he was attempting to escape, partway up a driveway and up a flight of stairs to inside the living quarters. The jury could reasonably find that this movement was substantial rather than brief, so it was beyond that merely incidental to the commission of the robberies, and that it prevented Kortbawis escape, so it increased the risk of physical or emotional harm to him. (CALJIC No. 9.54.) Accordingly, substantial evidence supports the kidnapping for robbery conviction relating to Kortbawi.
Glenn was inside the back house when the robbers arrived. She was later taken from the back house to the front house at gunpoint. This movement entailed separating her from the male victims in the back house, which made her fear that she would be raped or killed, taking her down a flight of stairs, outside and across a 25-to-30-foot courtyard, to the inside of a different house with a different address and different, unrelated, residents. The jury could reasonably find that this movement was from outside Glenns living quarters where the robbers found her to another enclosure, so it was beyond that merely incidental to the commission of the robberies, and that it temporarily at least isolated Glenn from other male victims, which clearly increased her emotional harm. (CALJIC No. 9.54.) Accordingly, substantial evidence supports the kidnapping for robbery conviction relating to Glenn.
DISPOSITION
The judgment is affirmed.
We Concur:
MCADAMS, J.
DUFFY, J.