Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County, No. 07NF1569, Gary S. Paer, Judge.
Jerry D. Whatley, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Rhonda Cartwright-Landendorf and Susan Miller, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
MOORE, J.
Defendant Jongpil Park contends statements he made during his interrogation were involuntary and obtained in violation of Miranda v. Arizona (1966) 384 U.S. 436. He further contends the court had a sua sponte duty to instruct the jury regarding the option of a “lesser kidnapping” sentencing provision, and that even if the court did not have such a duty, trial counsel was ineffective for failing to request the instruction. We disagree and affirm.
I
FACTS
Defendant was charged in the information with residential burglary (Pen. Code, §§ 459, 460, subd. (a), count one), assaulting J. with the intent to commit a sexual offense during a residential burglary (§ 220, subd. (b), count two), commercial burglary (§ 459, count three), kidnapping (§ 207, subd. (a), count four), false imprisonment by violence (§§ 236, 237, subd. (a), count five) on April 25, 2007, and with kidnapping for the purpose of rape (§ 209, subd. (b)(1), count six), rape (§ 261, subd. (a)(2), count seven), two counts of forced oral copulation (§ 288a, subd. (c)(2), counts eight and ten), sexual penetration with a foreign object (§ 289, subd. (a)(1), count nine), and making a criminal threat (§ 422, count eleven) on April 16, 2007. The information further alleged defendant was subject to enhanced sentencing pursuant to section 667.61, subdivisions (a) and (d) on counts seven, eight, nine, and ten because he kidnapped the victim, substantially increasing the risk of harm to her.
All statutory references are to the Penal Code.
The jury acquitted defendant of residential burglary and making a criminal threat, returned a guilty verdict for assault with intent to commit rape, found the assault did not occur during a residential burglary, and that defendant was guilty of commercial burglary, kidnapping, false imprisonment by violence, kidnapping as a lesser included offense of kidnapping for the purpose of rape, rape, two counts of forcible oral copulation, and forcible sexual penetration with a foreign object. The jury also found true the alternate sentencing scheme allegation that defendant kidnapped J. in connection with counts seven, eight, nine and ten, increasing the risk of harm to her. The court sentenced defendant to an indeterminate term of 30 years to life.
Defendant was born and raised in Korea. He was 23 or 24 years old and had been in this country for about 15 months at the time of the offenses. After working in his uncle’s Japanese restaurant, defendant worked as a sushi helper and later as a sushi chef at a Japanese restaurant in Buena Park. In January 2007, he met another employee, J. J. is also Korean, and a year younger than defendant. She has lived in the United States since she was a child and speaks Korean and English.
Unless otherwise indicated, all references to dates hereinafter are to the calendar year 2007.
On February 7, defendant asked J. to have coffee with him. After that get together, defendant asked her out to lunch and she agreed. Within two to three weeks they were seeing each other every other day. J. did not make their dating relationship known to others at the restaurant.
J. testified their dating relationship ended on April 7, the day before Easter. They went shopping that day and met again later that night when J. finished work. Defendant became upset with J. when she erased a photograph of herself from his phone because she did not like the way she looked. He snatched the phone from her and asked her if she was embarrassed to be seen with him.
J. got into her car to drive home and stopped at a parking lot because she thought defendant might be following her. He called J. on her cell phone and asked her to “come back.” She refused. J. saw defendant driving behind her within five minutes of leaving the parking lot. He again called her cell phone and told her to stop. When she stopped in another parking lot, defendant got into her car. He said he was sorry and tried to touch her and kiss her. J. turned away. Defendant got angry, hitting the ceiling light in the car. He then said he was sorry and asked for the money for the shirts they had bought earlier that day. When J. gave him the money, he threw it back at her. Defendant took her car keys and would not give them back to her. She eventually got the keys back and defendant got out of her car. J. drove home and defendant called her about an hour later, again apologizing. She told him she did not accept his apology and that she “can’t stand it anymore.”
The next morning, Easter, J. went to church. Defendant appeared after the service. He told her he had been calling her. J. walked away from him and got into her car. Defendant got in too. He was angry. Afraid of a scene at the church, J. told defendant to follow her. While in a Starbucks parking lot, defendant got into J.’s car and threw J.’s day-old coffee and “cookies or something” up in the air, causing J. to suffer a “very small open cut.” Defendant told J. to get into his car. She did. Defendant asked J. to go to his house. She refused, saying she was going to have dinner with her mother. Defendant said she still had to go to his house, and she told him they were “not going to do anything.” Defendant told J. to lead the way to his house.
Instead of driving to his house, J. drove toward where her mother works. When defendant saw J. was not going to get off at the exit to his house, he called her and threatened to crash his car into hers. She stopped at the parking lot of a liquor store. Defendant again got into her car, spit in her face, called her a whore, and accused her of having slept with “so many people.” J. cried and defendant poured water on her face. He took J.’s keys, went into the liquor store, bought more water, got back into her car, poured water into his mouth, and spit it at J. Defendant once more called her a whore and said she was either going to have sex with him or he was going to urinate on her. Eventually defendant gave J. another option: he would let her go if she would help him with a ticket the next day. She agreed and drove away. Defendant called her right away and again apologized.
The next day, J. helped defendant with his ticket and had lunch with him afterward. Not many days later, after another telephone call from defendant, J. reluctantly agreed defendant could come to her house for dinner with her mother. She did not say anything at dinner. Her mother and defendant spoke. Defendant complained that J. did not want to see him anymore. J.’s mother told defendant it takes two to make a relationship and that she does not support his relationship with J. Defendant said he would make J. like him again. J. gave defendant his spare key to his house when she walked him out after dinner. He got angry, called her ugly, spit in her face, and threw her purse on the ground. J. told her mother what had happened.
Some time after April 8, but before April 15, defendant appeared at the restaurant while J. was working. J. called her mother and asked to be picked up at the back door of the restaurant so defendant would not see her leave. Defendant went to J.’s house later that night and met with her mother. Notwithstanding the fact that defendant said J. is a bad person, that he wanted to make her suffer, and that he cannot let her go, J.’s mother eventually said defendant could meet J. “once in a while..., maybe for lunch,” but that arrangements had to be made through her, not J. After defendant and J.’s mother were finished talking, J. told defendant she was afraid and did not want to see him anymore.
April 16
On April 16, defendant arranged with J.’s mother to have lunch with J. J. went to a parking lot at a Korean market to meet defendant. When defendant arrived, J. got into his car. They did not talk while at the restaurant. After they left the restaurant parking lot, J. noticed they were not heading toward the parking lot where she left her car. J. asked defendant where he was going and he said he was going to take a drive. After a while, J. said, “Let’s go back now.” Defendant started to drive away from where J. had left her car and headed in the direction of his home. J. asked him if that is where he was driving, but he did not answer. J. became afraid.
Defendant parked his car in the driveway of his house. He said they would be “real quick” because he had to be at work at 4:30 p.m. When J. said they should leave, defendant just stared at her. He said, “This wouldn’t have happened if you didn’t tell your mom,” and “You asked for it.” J. was crying and begged defendant, “Please don’t do this.” Defendant asked J., “Don’t you care about your family?” Then he told J. he was only going to touch her and that her family would be fine if she listened to him. J. said she “[did not] want to do this.”
When defendant said he wanted to go inside, J. started crying harder. She repeatedly told him she did not want to go inside. When J.’s cell phone rang, defendant threw it and her purse into the back seat of the car.
About 10 minutes after they arrived, defendant got out of the car, walked around to J.’s door, opened it, and dragged her out of the car. Defendant slammed the car door closed and dragged the still crying J. by her arm toward the gate to the house, telling her to walk faster and to be quiet. He opened the gate and walked her toward the door of the house. J. did not yell out because she was afraid.
Once inside the house they went to defendant’s room. J. again begged defendant not to do this. He grabbed her and told her to take off her clothes. J. was “very scared” and “going crazy.” She grabbed on to defendant in an attempt to stop him. He called her names and she heard him say, “I’m going to freaking kill you.” Defendant pulled her pants and underwear down to her ankles. Once her clothes were off, defendant told J. to do as he says. Defendant forced J. to orally copulate him, pushed her onto the mattress and digitally penetrated her vagina, orally copulated her, and raped her after she again pleaded, “Please don’t do this.”
When it was over, J. got dressed. Defendant told her she had to have sex with him when he wants. He then drove her back to her car. J. left town the next day in order to get away from defendant.
April 25
Three days after she returned, on the morning of April 25, J. was at home getting ready to go to work. While she was putting on her makeup, defendant suddenly appeared in the doorway to the room. J. was home alone and had not given defendant permission to enter the residence. He asked where she had been, pulled down his pants, and put his hand down her blouse. J. said she had to go to work and agreed to go to his house after work. Defendant called J. while she was driving to work and threatened her.
Defendant showed up at the restaurant, grabbed J.’s wrist and pulled her away from the hostess podium, dragging her outside the restaurant. J. screamed for the bartender’s help. Defendant dragged J. to his car and attempted to force her into the car. When he let go, J. went back into the restaurant.
II
DISCUSSION
Defendant’s Statement to the Police
Defendant argues incriminating statements he made should have been excluded from evidence because the police interrogated him after he requested counsel. He contends that after the police advised him of his rights to be represented by counsel, he immediately asked to speak with his uncle and that, although he did not explain the reason for his request to the police, the purpose of speaking with his uncle was to inquire whether or not his uncle would pay to hire a lawyer. He further contends a police officer intimidated him into speaking despite his request for counsel when the officer “pointed a finger at him,” pounded his fist on the table and cursed at him.
Defendant was arrested and questioned at the Buena Park Police Department on April 25. The interrogation took place in a small, five- by five-foot room containing four chairs and a desk. Present were defendant, Buena Park Detective Pelton, Garden Grove Officer Wainwright, and another officer, Alex Hong, who is also a Korean interpreter. Hong sat across the table from defendant. Pelton sat at the end of the table.
Before the interrogation began, Hong asked defendant the following questions in Korean and defendant responded in Korean:
“Hong: First of all, there is a thing called the Miranda rights that I have to read to you before we start an interview. If you understand, please tell me that you understand it and if you don’t, I’ll explain it to you again. Do you understand that?
“[Defendant]: Yes.
“Hong: You have the right to remain silent and you don’t have to talk at all if you don’t want to. Do you understand?”
When Park hesitated, Hong asked the question again.
“Hong: You have the right to remain silent and if you don’t have to talk, you don’t have to. Do you understand?
“[Defendant]: Yes.
“Hong: What you say can be used against you in court. What you are saying to me can be used in court, do you understand that?
“[Defendant]: Yes.
“Hong: Before we ask questions, you have the right to consult a lawyer you like and to have a lawyer be present during our questioning. Do you understand that?
“[Defendant]: Yes.
“Hong: If you wish, you can also use a lawyer and if you cannot afford to hire one, but you still want one, you can have a lawyer appointed for you before we start asking questions.
“[Defendant]: Right now?
“Hong: Yes, if you want.
“[Defendant]: I’ve got to call my uncle.
“Hong: Do you understand?
“[Defendant]: Yes.
“Hong: What I have read to you now, do you understand them all?
“[Defendant]: Yes. My uncle... I need to give him a call.”
At the hearing on the exclusion motion, defendant said he had never been arrested before, in this country or Korea, and he never before heard of Miranda. He told the police he needed to call his uncle because, “they asked me whether I need [a] lawyer, and I needed [a] lawyer. So I need money.” Defendant continued, “This was the first time I was arrested like this. Because I did not know — I don’t know how to call it — kind of a system. I didn’t know anything about it. [¶] And I thought there was no lawyer in the police station. So I thought if I call my uncle, then my uncle could provide the lawyer. That’s the reason I wanted to call lawyer — I’m sorry. To call the uncle.” Defendant said he asked to call his uncle a second time, in the middle of the questioning, because he felt he needed an attorney. Defendant testified he did not tell the police why he needed to speak to his uncle because they never asked.
Defendant also testified he felt threatened during the interrogation because “[t]hey were cussing at me with the very loud voice, and they pointed at me and they hit the desk.” Defendant said the cussing was in English and started with the letter “f.”
The trial court heard testimony concerning the interrogation, watched the DVD recording of the interrogation and admitted a transcript of the same. The court found the prosecution met its burden of establishing a knowing, voluntary, and intelligent waiver.
“Under Miranda and the long line of cases following it, a suspect cannot be subjected to custodial interrogation unless there has been a knowing and intelligent waiver of the rights to remain silent, to the presence of an attorney, and, if indigent, to the appointment of counsel; and ‘police interrogation must cease once the defendant, by words or conduct, demonstrates a desire to invoke his right to remain silent, or to consult with an attorney.’ [Citations.]” (People v. Davis (2009) 46 Cal.4th 539, 585.) The prosecution bears the heavy burden of establishing a waiver of these rights. (Miranda, supra, 384 U.S. at p. 475.) “When a court’s decision to admit a confession is challenged on appeal, ‘we accept the trial court’s determination of the facts if supported by substantial evidence, but we independently decide whether the challenged statements were obtained in violation of Miranda [citation].’ [Citation.]” (People v. Lessie (2010) 47 Cal.4th 1152, 1169 (Lessie).)
Relying upon People v. Burton (1971) 6 Cal.3d 375 (Burton), defendant contends his requests to contact his uncle should be construed as an invocation of his Fifth Amendment privilege. Defendant analogizes his situation — new in this country, unable to speak English, and his belief that he had to arrange for counsel — to that of a minor. In other words, the request to contact his uncle should be treated as the functional equivalent of the invocation of his right against self-incrimination.
In Burton, the California Supreme Court held that a minor in custody and subject to interrogation without an attorney must be construed to have invoked his Fifth Amendment privilege against self-incrimination, absent evidence to the contrary, whenever he requests to see one of his parents. (Burton, supra, 6 Cal.3d at pp. 383-384.) The rule was based upon the belief that a minor seeking help would more naturally request a parent than an attorney. (Id. at p. 382.)
Subsequent to initial briefing in this matter, our Supreme Court issued its decision in Lessie, supra, 47 Cal.4th 1152, overruling Burton. The Lessie court held Burton “is no longer good law” in light of the United States Supreme Court’s decision in Fare v. Michael C. (1979) 442 U.S 707 (Fare). (Lessie, supra, 47 Cal.4th at p. 1156.) In Fare, the high court reviewed the California Supreme Court’s holding “that a juvenile’s request, made while undergoing custodial interrogation, to see his probation officer is per se an invocation of the juvenile’s Fifth Amendment rights as pronounced in Miranda. (Fare, supra, 442 U.S. at p.709.) The high court noted that the “pivotal rule” played by attorneys in the criminal justice system “justifies the per se rule established in Miranda, and that distinguishes the request for counsel from the request for a probation officer, a clergyman, or a close friend.” (Id. at p. 722.) The court concluded that notwithstanding a relationship of trust between a juvenile and his probation officer, holding a request for a probation officer to be a per se invocation of Miranda “‘would cut this Court’s holding in that case completely loose from its own explicitly stated rationale.’ [Citation.]” (Id. At p. 723.) Defendant’s request to speak with his uncle did not amount to a per se invocation of defendant’s Miranda rights.
We invited and obtained supplemental briefing from the parties addressing the application of Lessie to the present case.
Under Fare and Lessie, defendant’s statements to the interrogating officers still “would be subject to exclusion under the federal Constitution if the totality of the circumstances demonstrate[] that his purpose in asking to speak to his [uncle] was to invoke his Fifth Amendment privilege. [Citation.]” (Lessie, supra, 47 Cal.4th at p. 1170.) “Invocation of the Miranda right to counsel ‘requires, at a minimum, some statement that can reasonably be construed to be an expression of a desire for the assistance of an attorney.’ [Citation.] But if a suspect makes a reference to an attorney that is ambiguous or equivocal in that a reasonable officer in light of the circumstances would have understood only that the suspect might be invoking the right to counsel, our precedents do not require the cessation of questioning.” (Davis v. U.S. (1994) 512 U.S. 452, 459.) The suspect must state his or her “desire to have counsel present sufficiently clearly that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney.” (Ibid.) “If the suspect’s statement is not an unambiguous or unequivocal request for counsel, the officers have no obligation to stop questioning him.” (Id. at pp. 461–462.)
Here, defendant never mentioned an attorney. He asked to speak with his uncle. And in so doing, he did not tell the police he wanted to speak with his uncle before answering any questions or that he wanted his uncle to call an attorney. (See Lessie, supra, 47 Cal.4th at p. 1170.) It cannot be said that defendant’s request to speak with his uncle was an unequivocal request for counsel. “Although ‘when a suspect makes an ambiguous or equivocal statement it will often be good police practice for the interviewing officers to clarify whether or not he actually wants an attorney,’ the high court specifically declined to adopt a ‘stop and clarify’ rule that would require officers to ask clarifying questions about whether the right was being invoked. [Citation.]” (People v. Martinez (2010) 47 Cal.4th 911, 947, citing Davis v. U.S., supra, 512 U.S. at p. 461.) We also note defendant asked to call his uncle at the end of the questioning, stating, “I really need to make [a] phone call to my uncle. My parents would be terribly worried if I don’t take [a] phone call from them today.” Defendant’s statement at the time of this request indicates clearly that at least this particular request to speak with his uncle was for a purpose other than inquiring about counsel.
Defendant did not hesitate in discussing the case with the police. “[I]t is well settled that in order to assert the privilege the attitude of the individual must be such as to show a present lack of willingness to discuss the case with the police.” (People v. Dreas (1984) 153 Cal.App.3d 623, 630.) From the totality of the circumstances, we conclude the trial court did not err when it held defendant did not invoke his Miranda rights.
We next consider defendant’s claim that his statements were involuntarily made. He says his statements were involuntary because Pelton leaned toward him and pointed a finger at him, pounded his clenched fist on the table, and cursed. Although defendant made several incriminating statements during a police interrogation, he only mentions three of them in his brief: 1) he referred to J. as “my ex-girlfriend;” 2) he admitted J. was crying prior to having sex; and 3) he admitted J. said “no” prior to having sex.
“It long has been held that the due process clause of the Fourteenth Amendment to the United States Constitution makes inadmissible any involuntary statement obtained by a law enforcement officer from a criminal suspect by coercion. [Citations.]” (People v. Neal (2003) 31 Cal.4th 63, 79.) The prosecution bears the burden to prove the defendant’s statements are voluntary by a preponderance of the evidence. (People v. Weaver (2001) 26 Cal.4th 876, 920.) “‘A statement is involuntary if it is not the product of “‘a rational intellect and free will.”’ [Citation.] The test for determining whether a confession is voluntary is whether the defendant’s “will was overborne at the time he confessed.” [Citation.]’” (People v. McWhorter (2009) 47 Cal.4th 318, 346-347.) “‘A finding of coercive police activity is a prerequisite to a finding that a confession was involuntary under the federal and state Constitutions. [Citations.]” (Id. at p. 347.)
“‘In reviewing the voluntary character of incriminating statements, “‘[t]his court must examine the uncontradicted facts surrounding the making of the statements to determine independently whether the prosecution met its burden and proved that the statements were voluntarily given without previous inducement, intimidation or threat. [Citations.] With respect to the conflicting testimony, the court must “accept that version of events which is most favorable to the People, to the extent that it is supported by the record.”’ [Citation.]” [Citation.] “... When, as here, the interview was tape-recorded, the facts surrounding the giving of the statement are undisputed, and the appellate court may independently review the trial court’s determination of voluntariness.” [Citation.]’ [Citation.]” (People v. McWhorter, supra, 47 Cal.4th at p. 346.)
This court watched the 50-minute DVD of the interrogation. Pelton questioned defendant first and then Wainwright asked his questions. Hong interpreted the questions and answers. For the most part, Pelton was soft-spoken in his questioning. Defendant’s statement that J. was his ex-girlfriend was made very early in the process and before any of the complained of conduct. Although defendant contends the detective yelled, “Ask him if he understands what I’m saying,” our review of the DVD shows that the detective only slightly raised his voice from what was for the most part a soft-spoken tone. Additionally, while defendant contends the detective pounded his clenched fist on the table, the DVD shows the detective slapping the table twice in rapid succession while telling Officer Hong, “Okay. I’m gonna speak slowly and I want you to translate to him as I do....” One time, Pelton did use a profanity that began with “f,” but that word was not interpreted to defendant.
Under the circumstances in the record before us, we cannot find defendant’s statements were coerced. We conclude the trial judge correctly found defendant’s statements were made voluntarily.
No Sua Sponte Duty to Instruct on Lesser Included Sentencing Provision
The jury found defendant guilty of the April 16 rape, forcible penetration with a foreign object, and two counts of forcible oral copulation. As to each of these counts the jury found defendant kidnapped J., substantially increasing the risk of harm to her over and above the level of risk necessarily inherent in each offense. Defendant does not contend the evidence is insufficient to support these findings. Rather, he contends the court had a sua sponte duty to instruct the jury on a lesser kidnapping sentencing provision.
Section 667.61, subdivision (a) provides a 25 years to life sentence for one convicted of certain sex offenses when “[t]he defendant kidnapped the victim of the present offense and the movement of the victim substantially increased the risk of harm to the victim over and above that level of risk necessarily inherent in the underlying [listed sex offense].” (§ 667.61, subd. (d)(2).) The court properly instructed the jury in this regard pursuant to CALCRIM No. 3175. However, defendant contends the trial court had a sua sponte duty to instruct the jury in the terms of CALCRIM No. 3179 to the effect that it could find true a lesser penalty provision in section 667.61.
Pursuant to section 667.61, subdivisions (b) and (e)(1), a defendant convicted of any of the sex offenses charged in counts six through nine of the information may be sentenced to 15 years to life in prison if “the defendant kidnapped the victim of the present offense in violation of Section 207, 209, or 209.5” (§ 667.61, subd. (e)(1)). Both penalty schemes apply when a defendant kidnaps the victim of certain sex offenses. The difference is that when the movement of the victim substantially increases the risk of harm to the victim over and above that level of risk necessarily inherent in the underlying sex offense, a sentence of 25 years to life applies. (§ 667.61, subds. (a), (d)(2).)
The issue raised by defendant has already been decided against him by our Supreme Court in People v. Majors (1998) 18 Cal.4th 385, 411 (Majors). The Majors court held “a trial court’s sua sponte obligation to instruct on lesser included offenses does not encompass an obligation to instruct on ‘lesser included enhancements.’” (Ibid.) We are bound to follow that decision. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450.)
Defendant contends Majors is no longer binding precedent in light of the United States Supreme Court decision in Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi). Defendant argues that Majors was based upon People v. Wims (1995) 10 Cal.4th 293, 307, and Wims’s reasoning has been repudiated by the high court in Apprendi.
The majority in People v. Wims, supra, 10 Cal.4th 293, held that California’s “enhancements are not ‘equivalent’ to, nor do they ‘function’ as, substantive offenses. Most fundamentally, a sentence enhancement is not equivalent to a substantive offense because a defendant is not at risk for punishment under an enhancement allegation until convicted of a related substantive offense. [Citation.]” (Id. at p. 307.) According to defendant, this reasoning was repudiated by the high court in Apprendi when the court concluded that “when the term ‘sentence enhancement’ is used to describe an increase beyond the maximum authorized statutory sentence, it is the functional equivalent of an element of a greater offense....” (Apprendi, supra, 530 U.S. at p. 494, fn. 19.) From this defendant infers that if a court has a sua sponte duty to instruct on lesser included offenses, it must have a sua sponte duty to instruct on lesser sentencing penalties. However, the fact that a defendant has a federal Constitutional right a right to a jury trial on certain sentencing allegations does not mean due process requires a court to sua sponte instruct a jury on a lesser included sentencing penalty. If “[t]he cases do not support the proposition that a trial court’s failure to instruct on a lesser included offense sua sponte denies due process” (People v. Rogers (2006) 39 Cal.4th 826, 872), neither would they require such instruction on a lesser included sentencing penalty. The trial court did not have a sua sponte duty to instruct the jury on a lesser kidnapping sentencing provision.
Ineffective Assistance of Counsel
Defendant contends that if the court did not have a sua sponte duty to instruct on the lesser kidnapping alternative sentencing provision (CALCRIM No. 3179) then trial counsel was ineffective for failing to request that instruction. Defendant primarily bases this contention on something his trial counsel said to the court during a hearing.
Defendant moved for a new trial on the sentencing findings. Defense counsel argued the trial court had a sua sponte duty to instruct on the lesser sentencing provision. After the court informed counsel it found no authority for that proposition and that it might be a different situation if the defense asks for the lesser instruction and the prosecution agrees to the giving of the instruction, defense counsel responded, “I will tell the court this: in the future, I will be asking for this, because I think it’s there.”
The standard of review for an ineffective assistance of counsel claim is well settled. A criminal defendant has a federal and state constitutional right to the effective assistance of counsel. To establish a claim of incompetence of counsel, a defendant must establish both that counsel’s representation fell below an objective standard of reasonableness and that it is reasonably probable that, but for counsel’s error, the result of the proceeding would have been different. (Strickland v. Washington (1984) 466 U.S. 668, 686-688, 694-695; People v. Ledesma (1987) 43 Cal.3d 171, 215-218; see U.S. Const., 6th & 14th Amends.; Cal. Const., art. I, § 15; People v. Benavides (2005) 35 Cal.4th 69, 92-93.) To prevail, a defendant must establish incompetence of counsel by a preponderance of evidence. (People v. Ledesma, supra, 43 Cal.3d at p. 218.)
“On a direct appeal a conviction will be reversed for ineffective assistance of counsel only when the record demonstrates there could have been no rational tactical purpose for counsel’s challenged act or omission. [Citations.]” (People v. Mesa (2006) 144 Cal.App.4th 1000, 1007-1008.) The record does not disclose why counsel did not request instruction on the less severe section 667.61 special finding of kidnapping without substantially increasing the risk of harm to the victim over and above that necessarily inherent in the underlying sex offense. We cannot, on this record, eliminate the probability that defense counsel had a valid tactical reason for not requesting the instruction.
A true finding on the charged kidnapping sentencing allegation after a guilty verdict on any of the April 16 sex charges would mean a minimum sentence of 25 years to life. Had defense counsel requested instruction on the lesser kidnapping enhanced sentencing provision and the jury found it to be true, defendant would still receive an indeterminate sentence of at least 15 years to life. However, if the jury convicted defendant of any of the April 16 sex offenses, did not find the kidnapping substantially increased the risk of harm over that inherent in the crime(s), and the jury was not instructed on the lesser kidnapping enhanced sentencing provision, defendant would have received a determinate state prison commitment with an identifiable parole date. In other words, defendant’s best chance of receiving a determinate term if convicted was to not request a lesser special kidnapping instruction. We cannot say an attorney taking such an approach “was not functioning as the ‘counsel’ guaranteed... by the Sixth Amendment.” (Strickland v. Washington, supra, 466 U.S. at p. 687.)
Defendant contends defense counsel acknowledged that he should have requested the instruction on the lesser sentencing provision, but that is not what defense counsel said. He said he would ask for the instruction in the future. In hindsight, having failed in his attempt to gain a not true finding on the charged kidnapping sentencing penalty, defense counsel may well have second guessed his strategy. Viewing counsel’s actions from an objective point of view, we cannot conclude his representation was ineffective.
III
DISPOSITION
The judgment is affirmed.
WE CONCUR: SILLS, P. J.BEDSWORTH, J.