Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Santa Cruz County Super. Ct. No. F08671
Bamattre-Manoukian, ACTING P.J.
Defendant Jose Angel Juarez was convicted after jury trial of one count of conspiracy (Pen. Code, § 182, subd. (a)(1)), four counts of second degree robbery (§ 211), two counts of carjacking (§ 215, subd. (a)), one count of kidnapping for carjacking (§ 209.5, subd. (a)), one count of kidnapping (§ 207), and four counts of assault with a firearm (§ 245, subd. (a)(2)). The jury further found that defendant personally used a firearm during the commission of all the offenses other than the conspiracy and assaults. (§§ 12022.5, subd. (a), 12022.53, subd. (b).) Defendant admitted that he had a prior serious felony conviction that also qualified as a strike. (§§ 667, subd. (a)(1), 1170.12.) The trial court sentenced defendant to the determinate term of 39 years eight months, consecutive to the indeterminate term of life with the possibility of parole plus 10 years.
Further unspecified statutory references are to the Penal Code.
On appeal defendant contends that he was denied due process and a fair trial because the prosecution’s case substantially depended on statements by defendant’s alleged accomplice that were obtained by coercion and therefore were inherently unreliable, and his trial counsel rendered ineffective assistance by failing to object to the evidence. Defendant also contends that he was denied due process because the jury heard an inadmissible statement suggesting that he had killed somebody, and the court’s subsequent examination of the jury about the statement did not cure the prejudice. To the extent that trial counsel failed to object to the court’s examining process, defendant also contends that counsel rendered ineffective assistance. Lastly, defendant contends that his convictions for simple kidnapping (count 9) and one count of carjacking (count 6) must be reversed because they are based on the same facts as the kidnapping for carjacking conviction (count 7). We agree with defendant’s final argument, but find no other prejudicial error. Therefore, we will strike defendant’s convictions on counts 6 and 9, and affirm the judgment as so modified.
BACKGROUND
Defendant was charged by second amended information with one count of conspiracy (§ 182, subd. (a)(1); count 1), four counts of second degree robbery (§ 211; counts 2-4 & 8), two counts of carjacking (§ 215, subd. (a); counts 5 & 6), one count of kidnapping for carjacking (§ 209.5, subd. (a); count 7), one count of kidnapping to commit another crime (§ 209, subd. (b)(1); count 9), and four counts of assault with a firearm (§ 245, subd. (a)(2); counts 10-13). The information further alleged as to counts 2 through 9 that defendant personally used a firearm during the commission of the offenses (§§ 12022.53, subd. (b), 12022, subd. (b)(2)), and as to all counts that he had a prior serious felony conviction that also qualified as a strike. (§§ 667, subd. (a)(1), 1170.12.)
Prior to trial, defendant requested an Evidence Code section 402 hearing “regarding the legality of the prosecution’s plea agreements with Francisco Alvarado and Damien Gutierrez.” He argued that the agreements “are absolutely unenforceable as of the date of trial and are fundamentally coercive to the unwitting prosecution witnesses, Gutierrez and Alvarado.” Defense counsel later withdrew the request.
The defense counsel who withdrew the motion was not the same counsel who filed it.
Defendant moved in limine to exclude “any gang evidence or suggestion that [he] may be involved in gangs (i.e. that his star tattoo indicates gang membership).” He argued that there was conflicting evidence at the preliminary hearing about the meaning of his star tattoo, and that the “conflicting and irrelevant evidence should not be injected into the trial.” The People opposed the motion, arguing in part that “defendant’s star tattoo is a distinguishing feature that was described by witnesses who provided a physical description. Therefore, the existence of that tattoo is probative and corroborative of the identifications provided, . . .” The court ruled that evidence of the tattoo would be admitted “for purposes of identification.”
The court granted defendant’s motion to bifurcate trial on his alleged priors.
The Prosecution’s Case
The parties stipulated as follows. B. B. Tyner is 74 years old and has an antique shop across the street from Farm Fresh Produce in Watsonville. When Tyner arrived at her shop with her grandson, Dane Gradone, at about 2:00 p.m. on December 18, 2003, she noticed two men sitting in a van parked in front of the shop. She asked the men if they were looking for antiques. Both men spoke clear English. The men said that the van was out of gas but they could push it to a nearby gas station. They got out of the van and appeared to push on it but it did not move. Tyner and Gradone left at 2:30 p.m., and when they returned at 3:30 p.m., the men were still sitting in the van. Tyner spoke to the men again and they said that they could not move the van. The men were still sitting in the van when Tyner and Gradone left again at 5:00 p.m., but were not in it when they returned at 5:30 p.m. On the afternoon of December 19, 2003, Tyner reported that the van was still blocking her driveway. A California Highway Patrol officer and a Santa Cruz County sheriff’s deputy responded, and Tyner told them what she had seen. The van was impounded.
The parties further stipulated that Gradone is 16 years old and was visiting Tyner, his grandmother, on December 18, 2003. Gradone saw two men park a van in the driveway of Tyner’s shop and later saw the two men get out of the van and try to push it. He got a good look at both men. The driver was wearing a green long-sleeved shirt and blue jeans and the passenger was wearing a large, dark blue jacket over a red shirt and dark blue jeans.
On December 18, 2003, Martin Rodriguez Olivarez (Rodriguez), Simon Araujo, and Imelda Ornelas were working at Farm Fresh Produce in Watsonville. Although the store closed at 5:30 p.m., they did not usually finish their work until after 6:00 p.m. Ornelas’s daughter was with her that evening as she counted the money in the cash register. Her younger son was also in the store. Ornelas counted out $1,300, as well as $250 to go back into the register for the next day, but was not able to finish the counting.
Araujo heard somebody speak to Ornelas’s son, who was at the store’s entrance door. Araujo told the man that the store was closed. The man pulled out a gun and said that he wanted money. The man spoke in both English and Spanish. He was wearing a dark hood and had his head down. Ornelas could not see the man’s face. When Araujo and Rodriguez tried to look at the man’s face, the man said in Spanish not to look at him. Rodriguez, Ornelas, and Araujo got the impression that Spanish was not the man’s first language.
The man gestured with his gun, which appeared to Rodriguez to be a .22, and directed everybody to the cash registers. A second man, who was wearing a red sweater and whose face was also covered by a hood, came in behind the first man holding a paper bag, and both men told Ornelas to put the money in the bag. When Ornelas acted as though she was not willing to comply with the demands, Rodriguez told her to put the money in the bag and she did.
The man with the gun asked Ornelas if she had a purse and he asked Araujo and Rodriguez if they had a wallet. Ornelas and Araujo both responded negatively. The men took Rodriguez’s wallet, searched it, pulled out his driver’s license and $5, and returned the wallet to him. The man with the gun warned Rodriguez that if he talked, they would find him at the address on the license. The man said that they wanted to take the red car that was in the store parking lot, but Rodriquez said that it belonged to the delivery man who was not there. The man pointed his gun at Rodriguez and demanded the keys to the van in the lot. Rodriguez said that he did not have them, that they were under a mat in the van. The men grabbed the money, ran to the van, found the keys and drove off toward Mount Madonna. The men had been in the store for about 15 minutes. Rodriguez, who had a duplicate driver’s license in his van, told Ornelas to call the sheriff. Deputies arrived within five minutes.
At 6:30 p.m. on December 18, 2003, sheriff’s deputies responded to the report of a collision near the summit of Mount Madonna. A northbound Ford van had crossed the center line, come back and hit an embankment, and was lying on its side in the southbound lane facing south. Both driver’s side tires were flat. After the van was righted, officers found a paper bag containing $1,203 under the van and one of Rodriguez’s driver’s licenses.
On December 18, 2003, Leslie Durkee left her work in Watsonville around 4:45 p.m. and drove in a gray Saab toward her home in Morgan Hill. As she was going over Hecker Pass, a van passed her on a hairpin turn. About two miles later, Durkee saw the van turned on its side in the other lane. Two men were running around next to the van. She called 911 and reported the accident. One of the men opened her passenger side door, pointed a gun at her, and told her to hang up. He got in the front of the car, the other man got in the back, and the man in front told Durkee to drive away. She did.
While Durkee was driving them, the man in the back seat was moaning and the two men spoke to each other in Spanish and English. They had gone some distance when the man in front told Durkee in English that she needed to turn around and go back to the van. She turned around and headed back to the collision scene. When they got there, officers were there and there was a long line of traffic. The man in front told Durkee to just drive them on to Watsonville and drop them off. When they got to Watsonville, the man told her to drive them to Hollister. Durkee asked the man to let her out and to take her car, but he refused, so she kept driving.
The man directed Durkee to take a road she was unfamiliar with. She repeatedly asked to be let out, but the man kept saying no. When she got to the intersection of Highways 101 and 129, she pulled into a turnout and the man with the gun agreed to let her get out and to use her cell phone to call somebody to pick her up. When she hung up the phone, the man in the back seat told the man with the gun to take her money and credit cards. The men took the cell phone and about $30, Durkee’s checkbooks, and her credit cards from her purse, but they let her keep the purse. When the man in the back climbed into the front seat, Durkee was able to see his face. About 10 minutes after the men drove off in the Saab, a truck pulled into the turnout and the driver allowed her to use his cell phone to call the police. Officers arrived in about five minutes.
Using OnStar, officers found Durkee’s Saab in an apartment complex carport at the end of an alleyway in Hollister around 9:40 p.m. on December 18, 2003. There was blood all over the back seat.
Francisco Alvarado testified as follows. He is in custody serving a 10 year four month term after pleading guilty to robbery, conspiracy, three counts of assault with force likely to produce great bodily injury, and two counts of possession of stolen property. He pleaded guilty to avoid a life sentence. He admitted to officers what he had done and who he had done it with, but at the time he thought that the other man’s name was Victor. He did not want to testify because he was concerned about being beat up or killed for being a “snitch.” However, he entered into an agreement to testify truthfully and that is what he planned on doing. He was not promised anything other than a 10 year four month sentence for testifying.
Alvarado’s appointed counsel was present during his testimony.
The written agreement was entered into evidence as People’s exhibit No. 37.
In December 2003, Alvarado was receiving SSI benefits for a mental disability, and he did not have a job. He owed Damian Gutierrez money, and around 4:00 p.m. on December 17, 2003, Gutierrez came to Alvarado’s home in Hollister with a .25 automatic handgun to ask for the money. The next day, Gutierrez returned to Alvarado’s home with defendant, who introduced himself as Victor. Gutierrez told Alvarado that they were going to do “a jale,” or “a job,” meaning something illegal, like a robbery. Alvarado agreed, and got into Gutierrez’s car with Gutierrez and defendant. Gutierrez drove them to pick up a van. The van’s ignition switch did not work well and Gutierrez had to show them how to use it. Gutierrez then left and defendant drove Alvarado to a fruit stand in Watsonville. Alvarado was wearing a red T-shirt and a black jacket and defendant was wearing a black, hooded jacket.
Gutierrez and Alvarado waited outside the store until it closed. While they waited, an old woman asked them to move the van, but they could not do so because it had run out of gas. When defendant started walking to the store, Alvarado ran after him, while pulling his red shirt up to cover his face up to his eyes, and while carrying a bag he got from the back of the van. A small boy was by the store’s door when Alvarado went inside. Alvarado saw that defendant had the hood on his jacket up and that he held a gun, which had tape on its handle and which might have been a .38 revolver. Alvarado went to the cash register and told the store employees, two women and two men, to put the money in the bag. He also asked one of the men for the keys to the van, and the man said that they were under the floor mat. Alvarado spoke in Spanish. Defendant asked the employees for their wallets and their identification, so if they called the police he would know where they lived, but Alvarado cannot remember if defendant spoke in Spanish or in English. Alvarado grabbed the money and ran out to the van to look for its keys. He found the keys, started the van, and pulled it around to the front of the store. Defendant came out and said that he wanted to drive, so Alvarado moved over to the passenger seat.
Defendant sped up Mount Madonna. While making a turn, the van slid and a car coming from the opposite direction hit them. They hit a wall and the van flipped over and landed on its side. Alvarado fell out of his seat. His hand went through the window and hit the pavement, causing a fracture and the loss of his thumb. He wrapped his shirt around his hand to stop the bleeding, kicked out the back window of the van, and got out. He looked around for the money and defendant and saw defendant in the passenger seat of another car. Alvarado went over to that car, got into the back seat, and lay down. Defendant told the woman driver to just drive away, and the woman headed toward Gilroy.
During the drive, defendant asked Alvarado whether he had the money, and Alvarado said no. Defendant made the woman turn around so he could go back for the money. When they got back to the accident site, there were so many people there that they did not stop. Several times the woman said that she would get out of the car and that they could take it, but defendant told her to just keep driving. Alvarado told defendant to take the money from the woman’s purse. They dropped the woman off around Highway 101; they were in the car with her for about 45 minutes. Defendant allowed the woman to call somebody on her cell phone to pick her up, then he took the cell phone and he and Alvarado drove off.
Defendant drove to Hollister and took Alvarado home. A family member called an ambulance, but when Alvarado heard the ambulance coming he left home and walked to Gutierrez’s home. There he told Gutierrez that they had been in an accident and that they did not get the money. He cleaned his hand and changed his clothes in Gutierrez’s yard. Gutierrez gave Alvarado some alcohol and methamphetamine, which he took, and then he returned home. He lay down, because he was not feeling well, and later woke up in the hospital. He had surgery on his hand the next day. The police seized his clothes and boots.
Durkee was shown a photographic lineup on December 19, 2003, that included a photo of Alvarado. Durkee pointed to Alvarado’s photo and said that she thought he was the person who sat in the back of her car.
Officers interviewed Alvarado twice on December 19, 2003, after he got out of surgery, and searched his home pursuant to a search warrant. Alvarado admitted that he was involved in the robbery, and said that a man named Victor, who had a star tattoo near his right ear and who had a gun, was also involved. He said that he did the robbery because he owed money to Damian Gutierrez. He later identified a photo of defendant as the man he knew as Victor.
Late the night of December 19, 2003, officers conducted a probation search at Damian Gutierrez’s residence, and interviewed Gutierrez. The interview was audiotaped and the tape was played for the jury. Following that interview, around 3:00 a.m. on December 20, 2003, officers searched Victor Espericueta’s home pursuant to a search warrant. The officers seized several items and arrested Espericueta on drug charges. Officers interviewed Espericueta at the jail at his request. Espericueta said that the cellular phone, checkbooks, and credit cards belonging to Leslie Durkee that the officers seized from his home were all dropped off at his house by a man he knew as Angel a few hours before the officers arrived. Espericueta described Angel, and said that he had a star tattoo on his right temple next to his ear. Espericueta also said that Angel had a dark revolver with a handle wrapped in tape when he came to the house. Later that morning Espericueta identified a photo of defendant as the person he knew as Angel.
Durkee testified that the cell phone in evidence was not hers.
The parties stipulated that a Hollister police officer arrested defendant for a traffic violation at 12:10 p.m. on December 20, 2003. At the time of his arrest, defendant was wearing a red tank top, and he had a star tattoo on his face just in front of his right ear. During a lawful search, the officer found a driver’s license for Martin Rodriguez in defendant’s pants pocket.
Defendant was interviewed once on December 21, 2003, and again the next day. After being advised of his Miranda rights, and agreeing to talk to officers, defendant denied involvement in the fruit stand robbery and said that he spent the day of December 18, 2003, with a male friend and the evening with a female friend. He would not name the friends. He denied knowing Alvarado, and said that he did not recognize his photo.
Miranda v. Arizona (1966) 384 U.S. 436.
On December 22, 2003, an officer showed Gutierrez, who was in custody, a photo of defendant, and asked Gutierrez if the person in the photo was the person he knew as Angel. Gutierrez said that he knew the person as Angel and that he had lent his van to Angel and Alvarado. He also identified a photo of his van. On December 23, 2003, Durkee was shown a photographic lineup that included a photo of defendant. Durkee was not able to identify defendant’s photo. Rodriquez, Araujo, Ornelas and Gradone were not able to pick either defendant or Alvarado out of the two photographic lineups that were shown to them about five days after the incident.
Palm and fingerprints were lifted from the impounded van that had been parked across the street from Farm Fresh Produce. The palm print was identified as belonging to defendant’s left palm, but the fingerprints were not identified.
Gutierrez testified as follows. Pursuant to a plea agreement he pleaded guilty to one count of robbery and admitted that a principal in the robbery used a deadly weapon. Conditions of the plea were that he receive a four-year sentence and that he promise to testify truthfully at any hearing relating to the underlying charges. He did not want to testify because he was serving his sentence and did not feel that it is appropriate that he testify against anybody else. He was not concerned about being considered a “snitch.” He has not been threatened by anybody in any way regarding his testimony.
Gutierrez’s appointed counsel was present during his testimony.
The plea agreement was admitted into evidence as People’s exhibit No. 45.
In December 2003, he lived in Hollister a few blocks from where Alvarado lived, and he had known Alvarado for about one year. Alvarado owed him more than $1,000, so around December 16, 2003, he went to Alvarado’s home and told Alvarado that he needed his money. He had a .9 millimeter handgun with him at the time. Alvarado said that he would get him some money, then turned and walked away. Later that evening, Gutierrez drove by Victor Espericueta’s house. While there he had a conversation with a man named Angel whom he did not know but whom he thought had “disrespected” his girlfriend. Angel had a star on the right-hand side of his face like Gutierrez has seen on many other people in town. However, defendant was not that man; Gutierrez testified that he does not “know [defendant] from nowhere. I don’t know him.” Defendant “doesn’t even nowhere resemble him at all.” Although a correctional officer showed him a small photograph, and he responded affirmatively to the correctional officer’s questions about it, he did not say that the person in the photograph was the person he loaned his van to with Alvarado.
On December 18, 2003, Gutierrez saw Angel again. Angel had a black snub nose revolver with a taped grip with him, and said that he was looking for somebody “to go out and do a job in Watsonville.” Gutierrez said that he knew somebody who needed to make some money. He took Angel to Alvarado’s home, and told Alvarado, “Jump in. Let’s go.” He then drove Alvarado and Angel to where he had a white van. He showed Alvarado how to start the van, and Alvarado and Angel drove off. When they left, Gutierrez did not know what they were going to do.
Later that evening Alvarado came to Gutierrez’s home. He was bleeding and had a hand injury. He said that things went bad; the vehicle turned over and they left the money behind. Gutierrez said that he did not want to know what Alvarado did, but he gave Alvarado some whisky and methamphetamine and a sweatshirt, and let him change his clothes in the carport. Gutierrez told Alvarado to throw his bloody clothes in the trash in the back, and then Alvarado left. Early the next morning, officers came and searched Gutierrez’s house, read him his Miranda rights, and offered to make a deal. He was high and said what they wanted him to say in order to take the deal.
Victor Espericueta testified as follows. He works on cars for people in his neighborhood as a hobby. Defendant used to work with one of his nephews, and Espericueta considers him to be a friend. He has known Gutierrez’s family for a long time. He does not know Alvarado. Espericueta saw Gutierrez and defendant talking one day when Gutierrez came by to talk about some work Espericueta was to do on a car. Defendant came by once again in the following few days, but Espericueta did not see defendant after that day until the day he testified. The police came to Espericueta’s home and searched it the morning after he last saw defendant. They found a black bag that contained various ID or credit cards that the officers assumed belonged to defendant. However, the bag was brought over by Gutierrez in a box with parts that Espericueta was supposed to install on Gutierrez’s car. After the search, Espericueta was arrested on drug charges. He subsequently spoke to officers about defendant, but he did not tell them the truth. He agreed with everything that was said to him because he did not want to lose custody of his children. He identified a picture of defendant, but he did not tell them who brought the black bag to his house.
The Defense Case
Aaron Cooper, a tattoo artist in Santa Cruz, testified that the artists in his shop collectively draw about 30 small star tattoos like defendant’s each year, and that there are six other tattoo shops in Santa Cruz. Some star tattoos are drawn behind the ear, some are drawn on the side of the neck, and some are drawn slightly higher than where defendant’s is. Cooper has never drawn a star tattoo in the same location that defendant’s is, and he has never seen one in that location on another person.
Defendant testified in his own defense as follows. He speaks both Spanish and English, but Spanish is his first language. He has known Espericueta a long time, and met Gutierrez at Espericueta’s house on December 17, 2003. Gutierrez tried to sell him a van. Defendant had never met Alvarado before being charged with the robbery at the fruit stand, but he was shown a photo of Alvarado during his jail interviews. He got Rodriguez’s driver’s license, which he had in his pocket when he was arrested by a Hollister police officer for a traffic offense, at Espericueta’s house. Espericueta gave the license to him so that he could use it to cut up some methamphetamine, and he kept it because the picture on it looked like him. He did not bring the black bag containing Durkee’s items to Espericueta’s house. He got the star tattoo when he was 18 or 19 years old, and he was 30 years old at the time of his trial. He was convicted of a theft-related felony in Santa Cruz County in 1998.
On December 18, 2003, defendant went to a friend’s house. He was there from 10:00 a.m. to 7:00 or 8:00 p.m. He then went to his girlfriend’s house and spent the night there.
The Verdicts, Findings on the Priors, and Sentencing
On November 3, 2006, the jury found defendant guilty of one count of conspiracy (§ 182, subd. (a)(1); count 1); four counts of second degree robbery (§ 211; counts 2-4 & 8); two counts of carjacking (§ 215, subd. (a); counts 5 & 6); one count of kidnapping for carjacking (§ 209.5, subd. (a); count 7); one count of kidnapping to commit another crime (§ 207, a lesser offense of § 209, subd. (b)(1) as charged in count 9); and four counts of assault with a firearm (§ 245, subd. (a)(2); counts 10-13). The jury also found true allegations as to counts 2 through 9 that defendant personally used a firearm during the commission of the offenses (§§ 12022.5, subd. (a); 12022.53, subd. (b)). Defendant waived his right to a jury trial on the prior allegations and admitted the prior as alleged.
On December 20, 2006, the court sentenced defendant to the determinate term of 39 years eight months, consecutive to the indeterminate term of life with the possibility of parole plus 10 years.
DISCUSSION
Accomplice Testimony
Defendant contends that his trial counsel’s failure to object to any portion of Alvarado’s testimony as coerced constituted ineffective assistance and violated his right to due process. He argues that Alvarado’s testimony was involuntary because he was coerced by investigating officers and later by the prosecution to incriminate and testify against defendant. Alvarado’s “cooperation, it was clear, included his own confession but also meant he had to tell them [defendant] was the other robber.” It was “mainly the investigator’s interrogative technique, including both implied offers of better treatment and threats of life in prison, which motivated Mr. Alvarado’s original statements incriminating [defendant]. . . . [Defendant’s] trial counsel cross-examined Mr. Alvarado about the statements to some degree, but never objected to their admission.” In addition, “the language the prosecution included describing truthful testimony as the sole condition of the [plea] agreement was contradicted by the agreement’s other language and that is the way Mr. Alvarado understood it. For this reason, his testimony was the direct product of coercion by both the police and the prosecutors, and it was, therefore, inherently unreliable. His trial counsel should have objected and moved to exclude it. His failure to do so resulted in prejudice to [defendant].”
The People contend that defendant waived any claim of error regarding the admission of Alvarado’s pretrial statements and trial testimony by failing to raise the claim below. Alternatively, the People contend that defendant has not demonstrated that counsel was ineffective for failing to raise the claim below.
“The principles applicable to a coerced-testimony claim are settled. The defendant has no standing to assert a violation of another’s constitutional rights. The coerced testimony of a witness other than the accused is excluded in order to protect the defendant’s own federal due process right to a fair trial, and in particular, to ensure the reliability of testimony offered against him. A claim that a witness’s testimony is coerced thus cannot prevail simply on grounds that the testimony is the ‘fruit’ of some constitutional transgression against the witness. Instead, the defendant must demonstrate how such misconduct, if any, has directly impaired the free and voluntary nature of the anticipated testimony in the trial itself. (People v. Badgett (1995) 10 Cal.4th 330, 342-350 (Badgett); People v. Douglas (1990) 50 Cal.3d 468, 501-502.) [¶] On appeal, we independently review the entire record to determine whether a witness’s testimony was coerced, so as to render the defendant’s trial unfair. (Badgett, supra, 10 Cal.4th 330, 350-351.)” (People v. Boyer (2006) 38 Cal.4th 412, 444; see also People v. Jenkins (2000) 22 Cal.4th 900, 966-968 [where there is no evidence of a connection between the prior coerced statements and any evidence admitted at trial, the defendant’s Fifth Amendment right to a fair trial has not been violated].)
As defendant did not object to Alvarado’s testimony at trial, he may not claim on appeal that Alvarado should not have been able to testify because his plea agreement was coercive. (People v. Hillhouse (2002) 27 Cal.4th 469, 489 (Hillhouse); People v. Riel (2000) 22 Cal.4th 1153, 1178-1179.) Recognizing this, defendant contends that his trial counsel was ineffective in failing to raise an objection. “To establish this claim, defendant must show that counsel’s representation fell below an objective standard of reasonableness under prevailing professional norms, and that he was prejudiced, i.e., that it is reasonably probable the result would have been more favorable had counsel acted competently. [Citation.]” (Hillhouse, supra, 27 Cal.4th at p. 489.)
As the defendant did in Riel, defendant here contends that, as a result of his plea agreement, the witness, here Alvarado, believed he was required to testify against defendant in a certain way. “ ‘ “[A] defendant is denied a fair trial if the prosecution’s case depends substantially on accomplice testimony and the accomplice witness is placed, either by the prosecution or by the court, under a strong compulsion to testify in a particular fashion.’ . . . Thus, when the accomplice is granted immunity subject to the condition that his testimony substantially conform to an earlier statement given to police . . . or that his testimony result in defendant’s conviction . . . the accomplice’s testimony is ‘tainted beyond redemption’ and its admission denies defendant a fair trial. On the other hand, although there is a certain degree of compulsion inherent in any plea agreement or grant of immunity, it is clear that an agreement requiring only that the witness testify fully and truthfully is valid.” (Italics added.)’ [Citation.]” (People v. Riel, supra, 22 Cal.4th at p. 1179.)
In Riel, the witness testified without contradiction that he had entered into an agreement in which he would plead guilty to first degree murder and testify truthfully in the defendant’s trial. In return, the witness would be sentenced to prison for 25 years to life, and other charges, including special circumstances allegations that made him eligible for the death penalty, would be dismissed. He was obligated to tell the truth, not to conform his testimony to any prior statement given the police or anyone else, or otherwise to testify in any particular fashion. In addition, the defendant conceded that the witness’s trial testimony did not entirely conform to any of his pretrial statements. The Supreme Court held that the agreement was permissible and that whether, and to what extent, the witness told the truth was for the jury to determine. (People v. Riel, supra, 22 Cal.4th at pp. 1179-1180.) “[The witness] and defendant did testify, even though both had reason to lie. Defendant had no right to have the jury hear only his version of the events and not the contrary testimony of another participant. It was for the jury to evaluate the testimony of both and the remaining evidence and determine where the truth lay.” (Id. at p. 1181.)
In Hillhouse, when the witness pleaded guilty to a reduced charge of second degree murder, he signed an agreement that he would testify truthfully if subpoenaed to testify at the defendant’s trial. The agreement said nothing else regarding the content of the witness’s testimony. Citing People v. Reil, supra, 22 Cal.4th at p. 1179, the Supreme Court found that nothing in the agreement was coercive or otherwise improper. “Although an agreement compelling the witness to testify in a particular fashion would be improper, an agreement that only requires the witness to tell the truth is valid.” (Hillhouse, supra, 27 Cal.4th at p. 489.)
In People v. Maury (2003) 30 Cal.4th 342, the defendant contended that his counsel were ineffective for failing to object to the testimony of a witness on the ground that the witness’s testimony was coerced by the prosecution. The defendant contended that the witness agreed to testify in conformity with the preliminary hearing testimony in return for benefits promised by the district attorney. However, the record showed that the district attorney promised only that the witness would not serve any time in the same jail as the defendant in return for her testimony. (Id. at p. 417.) “Nothing about the agreement was improperly coercive. Thus, counsel were not ineffective for failing to object to [the witness’s] testimony on that ground. [Citation.]” (Id. at p. 418.)
In the case before us, the plea agreement reads as follows. “The following constitutes the full agreement between defendant Francisco Alvarado, represented by his attorney Nancy de la Pena, and the People of the State of California, represented by the Santa Cruz District Attorney’s Office. [¶] Mr. Alvarado owed money to Damian Gutierrez and was threatened at gunpoint by Mr. Gutierrez who demanded repayment. The following day, Mr. Gutierrez introduced Mr. Alvarado to Jose Angel Juarez. Mr. Gutierrez told Mr. Alvarado to do a ‘jale’ with Mr. Gutierrez. Mr. Gutierrez lent Mr. Juarez and Mr. Alvarado a vehicle, and Mr. Juarez and Mr. Alvarado drove in that vehicle to the Farm Fresh Produce fruit stand in Watsonville, California. Mr. Juarez showed Mr. Alvarado a .38 caliber revolver. Mr. Juarez opened the cylinder and showed Mr. Alvarado that the revolver was loaded. Near the time the fruit stand closed to the public, Mr. Juarez and Mr. Alvarado entered the fruit stand through a side door. Mr. Juarez pointed the revolver at the employees of the fruit stand and demanded their money and the money from the cash register. Mr. Alvarado collected the money in a bag. Mr. Juarez demanded the van that belonged to the manager of the fruit stand and was told where the keys to that vehicle were hidden. Mr. Juarez told Mr. Alvarado to get the van. Mr. Alvarado pulled that van to the front of the fruit stand. Mr. Juarez then drove the van from the fruit stand with Mr. Alvarado in the passenger seat. A short time later, the van overturned on the roadway. Mr. Alvarado’s left thumb was partially amputated in the wreck. Mr. Juarez then displayed the revolver to Leslie Durkee, a motorist who had stopped to render assistance. Mr. Alvarado got into Ms. Durkee’s vehicle. Mr. Juarez demanded that Ms. Durkee drive him and Mr. Alvarado from the scene of the wreck, and she complied. The cash stolen from the fruit stand robbery had been left at the scene of the wreck. Mr. Alvarado suggested that he and Mr. Juarez should take Ms. Durkee’s money. Mr. Juarez then robbed Ms. Durkee and let her exit the vehicle near the San Benito County line. Mr. Juarez then drove Ms. Durkee’s vehicle and dropped Mr. Alvarado off near Mr. Alvarado’s home. [¶] Defendant Francisco Alvarado will admit his responsibility for his actions with respect to the robbery of the Farm Fresh Produce fruit stand, the assault with a loaded and operable handgun upon the occupants of the fruit stand, the carjacking of Mr. Martinez’ van, the carjacking of Ms. Durkee’s car, the kidnapping of Ms. Durkee, and the robbery of Ms. Durkee on or about December 18, 2003, and plead guilty to the following: [¶] Robbery (Count 2, P.C. 211 –strike) [¶] Conspiracy to commit a crime, to wit, P.C. 211 (Count 1 – strike) [¶] Assault by means likely to produce GBI (Count 10, P.C. 245(a)(1) – non-strike) [¶] Assault by means likely to produce GBI (Count 11, P.C. 245(a)(1) – non-strike) [¶] Assault by means likely to produce GBI (Count 12, P.C. 245(a)(1) – non-strike) [¶] Receiving stolen property (Count 14, P.C. 496(a) – non-strike) [¶] Receiving stolen property (Count 15, P.C. 496(a) – non-strike) [¶] Defendant Francisco Alvarado agrees he will receive a State Prison sentence of ten (10) years and four (4) months. Francisco Alvarado will waive any appellate rights which he may have in connections with the proceedings. It is understood that, if he were convicted of the offenses charged in the information, Francisco Alvarado could be sentenced to a term far greater than ten years and four months in State Prison, and that the sentence of ten years and four months is the result of a plea bargain. [¶] Defendant Francisco Alvarado agrees to testify against Jose Angel Juarez in any and all proceedings regarding the robbery of the Farm Fresh Produce fruit stand, the assault with a loaded and operable handgun upon the occupants of the fruit stand, the carjacking of Mr. Martinez’ van, the carjacking of Ms. Durkee’s car, the kidnapping of Ms. Durkee, and the robbery of Ms. Durkee on or about December 18, 2003, including pre-trial proceedings, at trial, and any post-trial proceedings. Defendant Francisco Alvarado agrees that the single condition of his plea agreement is that he must testify truthfully and completely. Defendant Francisco Alvarado will tell the truth with respect to his own involvement and the involvement of Jose Angel Juarez with respect of the robbery of the Farm Fresh Produce stand, the assault with a loaded and operable handgun upon the occupants of the fruit stand, the carjacking of Mr. Martinez’ van, the carjacking of Ms. Durkee’s car, the kidnapping of Ms. Durkee, and the robbery of Ms. Durkee on or about December 18, 2003 and any other issues upon which he is called to testify. Francisco Alvarado will tell the truth without respect to whether it hurts or helps Jose Angel Juarez. If he does not testify truthfully, the plea agreement will be declared null and void. Defendant Francisco Alvarado will only be entitled to the benefit of his plea bargain if he testifies truthfully and completely. If Mr. Alvarado is sentenced prior to the trial of Jose Angel Juarez but then fails to testify truthfully and completely, he agrees that the People’s motion to rescind his plea and sentence shall be granted, even if such motion is brought more than 120 days beyond the date of Francisco Alvarado’s sentencing. [¶] By signing this agreement, the parties indicate that they fully understand its contents, that the legal implications and rights and responsibilities have been fully discussed and explained and that they accept the agreement freely and voluntarily and agree to be bound by its terms.” (Emphasis in original). The agreement was signed by Alvarado, his attorney, and an assistant district attorney.
The record, therefore, indicates that when Alvarado pleaded guilty to various charges against him in exchange for a 10 year four month sentence, he signed an agreement that he would “testify truthfully and completely.” He was to “tell the truth with respect to his own involvement and the involvement of Jose Angel Juarez with respect to the robbery of the Farm Fresh Produce fruit stand, the assault with a loaded and operable handgun upon the occupants of the fruit stand, the carjacking of Mr. Martinez’ [sic] van, the carjacking of Ms. Durkee’s car, the kidnapping of Ms. Durkee, and the robbery of Ms. Durkee on or about December 18, 2003 and any other issues upon which he is called to testify.” He was to “tell the truth without respect to whether it is the prosecution or the defense which asked the questions and without respect to whether it hurts or helps Jose Angel Juarez.” Although the agreement also recited a factual scenario underlying the charges against Alvarado, nothing in the agreement required Alvarado to testify consistently with that scenario or any other scenario. And, although the agreement requires Alvarado “to testify against Jose Angel Juarez in any and all proceedings . . . including pre-trial proceedings, at trial, and any post-trial proceedings” (italics added), nothing in the agreement required Alvarado to testify to anything other than the truth. Accordingly, we find that the agreement was valid. (People v. Riel, supra, 22 Cal.4th at p. 1179; Hillhouse, supra, 27 Cal.4th at p. 489)
Defendant’s claim is that Alvarado was subject to improper police and prosecutorial coercion, that the coercion affected the reliability of Alvarado’s trial testimony, and that counsel rendered ineffective assistance by failing to object to his testimony on that ground. However, defendant has not shown that police and prosecutors were insisting on a particular story from Alvarado in exchange for his plea agreement, that is, he has not shown that they insisted that Alvarado implicate defendant even though defendant was not guilty. Rather, the record demonstrates that Alvarado agreed to testify “truthfully and completely,” whether it helped or hurt defendant. As defendant has not shown that any police or prosecutorial coercion affected the reliability of Alvarado’s testimony, he has not shown that counsel was ineffective for failing to object to Alvarado’s testimony on that ground. (People v. Maury, supra, 30 Cal.4th at p. 418.)
Gutierrez’s Taped Interview
On Friday afternoon, October 27, 2006, the prosecutor played for the jury a tape recording of Gutierrez’s police interview following the search of his home late the night of December 19, 2003. Redacted transcripts of the tape were provided to the jurors at that time, but they were instructed that the tape, not the transcripts, was evidence, that the transcripts would be picked up after the tape was played, and that they were not going to see a transcript again. The tape was marked as exhibit No. 48, the transcript was marked as exhibit No. 48A, and only the tape was admitted into evidence.
Later that day, outside the presence of the jury, the court stated that the tape played for the jury had statements by Gutierrez regarding defendant’s star tattoo that were not in the transcript given to the jury. The statement was that the tattoo denoted that defendant had “offed someone.” The court and defense counsel acknowledged that there was a chance that some members of the jury did not hear the statement due to the poor quality of the tape, but the court stated that “the fact of the matter is it was played and we need to make a record of what it was that was played.” The prosecutor stated that the statement had been edited out of the tape, but she had “picked up the wrong tape after [defense counsel] and I listened to it at lunch.”
After playing the tape again outside the presence of the jury, and hearing again that Gutierrez stated that defendant’s star tattoo denoted that “he’s offed someone,” the court asked defense counsel, “[n]ow, what, [counsel], are you requesting or suggesting the court do?” Defense counsel requested a mistrial. “I think that the content is so over the top in terms of fear factor to the jury that that’s – it’s not an acceptable thing in terms of small mistakes. I would not want to proceed with a jury who is harboring those sorts of thoughts.” “It’s just if one or two jurors heard it, it’s impossible to think it won’t get discussed.”
The court suggested a procedure and asked the parties to think about it: “Clearly the evidence that was introduced in error – because I’m not suggesting in any way that this was done intentionally or tried to get it in and then say, judge, it wasn’t prejudicial. It was an error but it’s dramatic stuff. It was never intended under any series of events that have been reviewed in this case to come into evidence. [¶] What I’d suggest is that the Court, with counsel and Mr. Juarez of course being present – I’m not trying to exclude him – take each one of the jurors and alternates in camera on Monday afternoon and ask them. I’m just suggesting that as a procedure. [¶] Now, I’m not stating in advance that simply because all twelve jurors and all alternates say they didn’t understand it or they didn’t hear it or they didn’t pick up an error or whatever, that I’m necessarily going to deny the motion, but I want to go through that step. It may be that if one or two of these folks said, ‘Yeah, I heard that and it’s not good,’ that this situation may be salvaged by discharging jurors. But that is a procedure that comes to my mind, now having heard what was on that.”
“I would tell the individual jurors in camera – and there’s absolutely no sense in asking the group for any number of reasons – is we played for you on Friday afternoon Exhibit 48, which was the tape of Damian Gutierrez’s interview by Steve Christensen. Do you remember that? Yes. All right. And then I’m going to go right to Exhibit 48-A and say, at some point there was a discussion of the – I think it’s referred to a star tattoo or a star on Mr. Juarez’s temple – or I guess it’s not Mr. Juarez at this point. It’s whomever –” “[t]he individual’s temple. And I’m literally thinking out loud. And then if they noticed some inconsistency between the tape and the transcript at that point. I’m not going to ask them did you hear the stuff about him having offed somebody.” “Is this a procedure, you know, that is appropriate?” “Now, if some of you folks – and some of you folks being the three of you – are more cynical than I am, and that’s hard to be, and do not feel that these group are going to be candid or responsive to this inquiry, you know, then I won’t do it.”
After both the prosecutor and defense counsel stated that they would trust the jurors’ responses, the court asked the parties to think about the suggestion over the weekend. The prosecutor offered to play the correct tape with the correct transcript again, but defense counsel responded, “I think the inquiry is necessary.”
On Monday morning, October 30, 2006, the court asked the parties for their positions. The prosecutor stated she thought it “makes sense to poll them individually in the manner Your Honor suggested on Friday. As far as what happens after that, I guess maybe we should do it seriatim.” Defense counsel stated he was concerned that the jurors “may not answer honestly.” After further discussions, the court stated: “[Defense counsel], I haven’t heard from you any further. Let me just ask you directly: Do you have any objection to the Court initiating this procedure as outlined on Friday?” Counsel responded, “No. I think the procedure is not going to cause any further problems. I have my doubts about whether it will produce the information we need. I think we’re already at the mistrial stage, but I think the procedure makes it no worse and we will submit it with that.”
After the lunch recess, the court and the parties questioned each of the 12 jurors and the four alternates individually. The jurors were given a copy of the redacted transcript and asked if they heard words on the tape that were not included in the transcript in the specific location of the star tattoo discussion, and, if so, what were the words. Although several jurors remembered that there were words on the tape that were not in the transcript, and some of them thought there was some reference in the tape to the star tattoo being gang-related, none of them said that they remembered any specific words.
The court told the jurors that Gutierrez’s statement about the tattoo possibly being gang related occurred during his trial testimony.
After the questioning, the court invited the parties to further argue the motion for mistrial. The prosecutor argued, “Your Honor, I don’t think there’s been any showing that actually anything happened as far as the jury was aware.” “[A]nd I just don’t think there’s been any showing of any prejudice.” Defense counsel argued that, although he “would agree that there isn’t much on the surface that’s alarming,” he would “still harbor some concern that people will remember it at an opportune moment later that they have an impression that they don’t know where it came from.”
In denying the motion for mistrial, the court stated in part: “My job is to give Mr. Juarez a fair trial as well as the People and if these folks didn’t have convincing answers or they were waffling or I wasn’t satisfied that they were being responsive to the questions I would have had little – I have little doubt that I would have quickly granted a motion for mistrial regardless of the practical consequences. [¶] However, I’m satisfied that, in general – and I’m not going to go lockstep each and every one of these people perfectly answering the questions and didn’t – and shade something or the like, but I think in general they responded credibly.”
The court then discussed with the parties the issue of whether any of the jurors should be discharged. It specifically mentioned two jurors, and asked whether they should be discharged and replaced with alternates. The prosecutor stated that she was happy with both jurors. Defense counsel stated that he was not going to request that either juror be removed.
The parties later stipulated that exhibit No. 48 was withdrawn and replaced by a new, redacted tape. The new exhibit No. 48 was given to the jury during their deliberations; the original tape and the transcripts of the redacted and unredacted tapes (exhibits 48A, 48B and 48C) were not given to the jury.
On appeal, defendant acknowledges that “[n]one of the jurors admitted hearing the reference to the star’s meaning its bearer had killed someone”; “[a]t least one suggested he or she thought it had something to do with gangs”; and “[s]everal jurors, one of whom probably was an alternate, suggested they had heard something about it which appeared to refer not to the tape but to the in-court testimony of Damian Gutierrez.” Nevertheless, he contends that the jurors’ “exposure to unadmitted and highly prejudicial statements outside the trial proceedings, and the questioning process in which the court engaged, both served to deprive him of his right to due process and a fair trial.” “The errors deprived [defendant] of due process because the trial court found the extraneous material was erroneously put before the entire jury, two jurors admitted having heard something about the tattoo, though they could not specify exactly what, and the process of questioning served not to expunge the taint, but, as the court itself admitted, to draw attention to it.” Defendant further contends that counsel rendered ineffective assistance to the extent that he failed to object to the court’s questioning process.
The People contend that “[n]one of the jurors or alternates heard the problematic language relating to the meaning of the tattoo”; that “[w]ith the exception of one individual, no one heard anything specific on the tape about the tattoo other than its shape and placement”; and that the individual “stated that he or she had heard ‘some reference to was or wasn’t it gang related.’ ” The People argue that defendant’s failure to object to the court’s examination procedure on due process grounds waives the issue on appeal. The People alternatively argue that only ordinary error occurred and that defendant has failed to demonstrate prejudice.
Assuming without deciding that defendant has not waived his due process argument, we find that reversal is not required as no prejudicial error occurred.
“ ‘When, as in this case, a jury innocently considers evidence it was inadvertently given, there is no misconduct.’ (People v. Cooper (1991) 53 Cal.3d 771, 836.) Rather, all that appears is ordinary error. (Ibid.) Certainly, there was no ‘improper outside influence[].’ (Id. at p. 836, fn. 12, . . .)” (People v. Clair (1992) 2 Cal.4th 629, 668 (Clair); see also, People v. Jackson (1996) 13 Cal.4th 1164, 1213-1214 (Jackson); People v. Rose (1996) 46 Cal.App.4th 257, 264 (Rose); compare People v. Zapien (1993) 4 Cal.4th 929, 993-997 [juror’s inadvertent receipt of information outside the court is juror misconduct]; People v. Nesler (1997) 16 Cal.4th 561, 578 [same]; People v. Danks (2004) 32 Cal.4th 269, 307 [same].)
“With misconduct, prejudice is presumed and reversal is required unless there is no substantial likelihood that any juror was improperly influenced to the defendant’s detriment. [Citations.] By contrast, with ordinary error, prejudice must be shown and reversal is not required unless there is a reasonable probability that an outcome more favorable to the defendant would have resulted. [Citation.]” (Clair, supra, 2 Cal.4th at p. 668.) On appeal we independently review the error itself for prejudice. (Ibid.)
In Cooper, the court found that the jury’s receipt of an exhibit that was inadvertently received into evidence at the defendant’s request was not prejudicial error. (Cooper, supra, 53 Cal.3d at pp. 836-838.) “The result of the exhibit’s inadvertent admission was relatively minor—merely the jury learning that defendant once complained of headaches and said he had hallucinations. On the other hand, the evidence of guilt was extremely strong.” (Id. at p. 836.) In Clair, the court found that the jury’s receipt of the unredacted versions of an audiotape recording and transcript of defendant’s conversation with an undercover police officer was not prejudicial error. (Clair, supra, 2 Cal.4th at pp. 667-668.) “To be sure, the jury’s receipt of the unredacted audiotape recording and transcript . . . was error. Of that there is no doubt. But the error was not reversible. As noted, the [trial] court impliedly made a determination to that effect. Reasonably so. [¶] Indeed, when in the exercise of the appellate function we independently review the error for prejudice, we arrive at the same conclusion; there is no reasonable probability of a more favorable outcome.” (Id. at p. 668.)
In Jackson, the jury mistakenly received evidence that the defendant was on probation for grand theft auto at the time of his arrest. Citing Clair, the court found that the error was not prejudicial. (Jackson, supra, 13 Cal.4th at p. 1213-1214.) “In this case, there was no reasonable probability of a more favorable outcome. Passing reference to his probationary status and his prior conviction for a nonviolent offense was overshadowed by the considerable evidence against defendant.” (Id. at p. 1214.) In Rose, the court found that the jurors’ inadvertent receipt of a police report concerning prior uncharged misconduct was harmless error. (Rose, supra, 46 Cal.App.4th at p. 264.) “Exercising our authority to independently review the error for prejudice, we agree with the trial court that, in view of the absence of a factual connection between the contents of the police report and the issues at appellant’s trial, it is not reasonably probable that he would have received a favorable outcome had the jurors not inadvertently viewed the report.” (Ibid.)
In this case, “there is no doubt” that the jury’s inadvertent exposure to the unredacted version of the audiotape recording of Gutierrez’s police interview was error. (Clair, supra, 2 Cal.4th at p. 668.) However, upon independently reviewing the error, we find it to be nonprejudicial. The transcript given to the jurors when they listened to the unredacted tape recording was redacted and did not include the objectionable passage. All the jurors and the alternates were questioned about the difference between the unredacted tape and the redacted transcript at the point of the objectionable passage, and none of them stated that they could remember what was on the tape that was not on the transcript. Although the court acknowledged that the questioning suggested that “we’re focusing on this tattoo,” it found at the conclusion of the questioning that the jurors were credible and thus that the error did not require a mistrial. Although, as defendant points out, the court declined the prosecutor’s request that it instruct the jury with the first paragraph of Judicial Council of California Criminal Jury Instructions (2007-2008), CALCRIM No. 3530, the record reveals that the prosecutor made the request because of something that occurred “at one point” when she “was cross-examining” a witness, and not because of the error at issue here, and defendant did not request any instructions regarding the inadmissible matter. The redacted version of the tape recording was given to the jury for their deliberations, and they were not given either the redacted or unredacted transcript. A careful review of the record discloses that none of the jurors reported hearing the reference to the star tattoo denoting that defendant “offed” somebody. In addition, the evidence of defendant’s guilt was strong. We find that it is not reasonably probable that defendant would have received a more favorable outcome had the jurors not been inadvertently exposed to the unredacted audiotape recording. We also find that, as the process of individually questioning the jurors did not unduly draw attention to the objectionable evidence, counsel did not render ineffective assistance by failing to object to the court’s questioning process.
The first paragraph of CALCRIM No. 3530 states: “Do not take anything I said or did during the trial as an indication of what I think about the evidence, the witnesses, or what your verdict should be.” ((Judicial Council of Cal. Crim. Jury Instns. (2007-2008), CALCRIM No. 3530.)
Lesser Included Offenses
Defendant contends, and the People concede, that his conviction for carjacking in count 6, and for kidnapping in count 9, must be reversed because they are necessarily included in his conviction for kidnapping for carjacking in count 7. Counts 6, 7 and 9 all alleged that the victim of the offense was Leslie Durkee. The trial court sentenced defendant to life with the possibility of parole plus 10 years on count 7, and stayed the sentences on counts 6 and 9 under section 654.
It has long been held that multiple convictions may not be based on necessarily included offenses. (See, e.g., People v. Pearson (1986) 42 Cal.3d 351, 355.) Where an offense cannot be committed without necessarily committing another offense, the latter offense is necessarily included in the former. (Ibid.) We agree that carjacking is a necessarily included offense of kidnapping for carjacking, and that the trial court was required to dismiss rather than stay the sentence for the carjacking conviction in count 6. (People v. Ortiz (2002) 101 Cal.App.4th 410, 415.) Under the facts of this case, we also agree that defendant’s kidnapping offense in count 9 is necessarily included in his kidnapping for carjacking offense in count 7. (Cf. People v. Russell (1996) 45 Cal.App.4th 1083, 1088-1089.) Therefore, defendant’s conviction for kidnapping in count 9 must also be dismissed.
DISPOSITION
Defendant’s convictions for carjacking (§ 215, subd. (a)) in count 6 and for kidnapping (§ 207) in count 9 are stricken. The judgment is affirmed as so modified. The clerk of the superior court is directed to prepare an amended abstract of judgment reflecting the striking of counts 6 and 9 and to forward a copy of it to the Department of Corrections and Rehabilitation.
WE CONCUR: MIHARA, J., Duffy, J.