Opinion
G052621
04-05-2017
THE PEOPLE, Plaintiff and Respondent, v. DEANGELO PRUITT, Defendant and Appellant.
Patricia L. Brisbois, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Theodore M. Cropley and Kristen Kinnaird Chenelia, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 12NF2610) OPINION Appeal from a judgment of the Superior Court of Orange County, Lance Jensen, Judge. Affirmed. Patricia L. Brisbois, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Theodore M. Cropley and Kristen Kinnaird Chenelia, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
Defendant Deangelo Pruitt appeals from his conviction for kidnapping to commit a sexual offense (Penal Code, § 209, subd. (b)) and sexual penetration by force (§ 289, subd. (a)(1)). He also challenges the jury's findings on the sentencing allegations that his kidnapping and movement of the victim substantially increased the risk of harm beyond that inherent in the crime of forcible sexual penetration (§ 667.61, subds. (a) & (d)(2)) and kidnapping (§ 667.61, subds. (b) & (e)(1)). We affirm.
All statutory references are to the Penal Code.
Pruitt does not challenge his conviction for forcible sexual penetration, but rather focuses on his aggravated kidnapping conviction and the jury's finding that his movement of the victim substantially increased the risk of harm. He contends his movement of the victim was merely incidental to the sexual penetration crime, and therefore was insufficient to support his aggravated kidnapping conviction or the jury's finding the movement substantially increased the risk of harm to the victim. As explained below, Pruitt's argument lacks merit because substantial evidence supports the conviction and the jury's finding.
Pruitt also argues the trial court failed to adequately instruct the jury because its instructions did not separately identify the increased risk of harm as an element of aggravated kidnapping, and also failed to advise the jury how to distinguish between movement of a victim that is merely incidental to an underlying crime and substantial movement sufficient to support an aggravated kidnapping conviction. The court, however, properly instructed the jury with the applicable CALCRIM jury instructions, which fully and accurately advised the jury of the governing legal standards.
Finally, Pruitt contends the trial court erred in responding to the jury's question about the meaning of incidental movement by simply referring the jury back to the CALCRIM instructions. Pruitt forfeited the issue because he failed to object to the court's response below, and in fact, the court's response was given at Pruitt' request. We also reject Pruitt's argument his trial counsel rendered ineffective assistance by not objecting to the court's response because conceivably counsel had sound tactical reasons for not to object to the court's response.
I
FACTS AND PROCEDURAL HISTORY
In August 2012, E.G. left her home about 7:30 a.m. and began walking to her church located on Orangethorpe Avenue near Beach Boulevard in Buena Park, California. Her path took her south through a Stater Brothers parking lot, and then east along Orangethorpe Avenue past Smith & Son's Glass & Screens and the Casa Santa Maria Senior Apartments before arriving at her church. E.G. was 60 years old at the time.
The building housing the glass and screen shop faces the Stater Brothers parking lot and its sidewall nearly meets the sidewalk along Orangethorpe Avenue. The senior apartments are set back from Orangethorpe Avenue with a large parking lot separating the apartments from the street. An approximately five-foot talk block wall surrounds the parking lot and has a rolling wrought iron gate to provide vehicles access to the lot. A 10 to 15-foot wide area lies between the parking lot's west wall and the back wall of the glass and screen shop. An approximately five-foot wide cement footpath winds through this area and leads to the senior apartments. Several mature trees line the path and numerous three-foot tall bushes cover much of the area. The trees and bushes prevent anyone standing on Orangethorpe Avenue from seeing anything on the ground behind the bushes.
Although E.G. walked alone on her way to church, many motorists drove along Orangethorpe Avenue and she shared the sidewalk with other pedestrians. As E.G. passed the glass and screen shop, Pruitt grabbed her from behind and pulled her down the pathway between the block wall for the senior apartments' parking lot and the back wall of the glass and screen shop. E.G. screamed for help as Pruitt yanked her about 50 feet down the pathway and forced her onto the ground behind some of the bushes. As Pruitt put his hand over E.G.'s mouth and nose to muffle her screams for help, he pulled down her underwear and forcibly inserted at least one finger into her vagina.
Teresa Rivera was driving on Orangethorpe Avenue preparing to turn into the Stater Brothers parking lot when she heard E.G. scream and spotted Pruitt forcing E.G. down the pathway. Rivera pulled into the Stater Brothers parking lot, parked her car, and walked in the direction of E.G.'s screams, which led her to the pathway behind the glass and screen shop. As Rivera started down the pathway, Pruitt saw her, let go of E.G., stood up, and walked toward Orangethorpe Avenue. Rivera could not see what Pruitt was doing to E.G. behind the bushes, but as he walked past Rivera he said, "You can call the police if you want." Rivera found E.G. laying on the ground behind some of the bushes.
Norman Darjuan also was driving on Orangethorpe Avenue toward Stater Brothers when he heard E.G.'s screams and saw Pruitt forcing her down the pathway. Darjuan pulled into the Stater Brothers parking lot and parked his car. When he saw Rivera heading toward the pathway, he called 911 and drove his car back onto Orangethorpe Avenue. Darjuan stopped his car in the middle lane next to the opening to the pathway where he could look down the pathway and report his observations to the 911 operator. From this vantage point, he saw Pruitt stand up and walk away from E.G.'s location. He could not see what Pruitt did to E.G. because the bushes blocked his view of everything but her feet.
The police arrested Pruitt later that day and E.G. identified him as her attacker. The prosecution charged Pruitt with kidnapping to commit a sexual offense and forcible sexual penetration. The prosecution also alleged Pruitt's movement of E.G. substantially increased the risk of harm beyond that inherent in the sexual penetration offense. The prosecution further alleged Pruitt had a prior serious or violent felony conviction, and three other prior convictions.
At trial, Pruitt did not dispute his guilt on the sexual penetration count. Instead, his defense focused on the aggravated kidnapping count and the sentencing allegations for the sexual penetration count, arguing his movement of E.G. from Orangethorpe Avenue down the pathway did not constitute kidnapping because the movement was merely incidental to the sexual penetration offense. During deliberations, the jury submitted two questions to the court. The first question asked about the meaning of incidental movement and the second asked whether the jury could convict Pruitt on two lesser charges. After discussing the questions with counsel, the trial court referred the jury back to specific instructions addressing their questions.
The jury convicted Pruitt on both counts and found the sentencing allegations to be true. The trial court sentenced Pruitt to 50 years to life on the sexual penetration count based on the sentencing allegation for substantially increasing the risk of harm and the prior serious or violent felony conviction. The court also sentenced Pruitt to an additional three years for his other prior convictions for a total term of 53 years to life. The court stayed the sentence on the aggravated kidnapping count.
II
DISCUSSION
A. Legal Background on the Asportation or Movement Element for Aggravated Kidnapping and Related Sentencing Allegations
Under section 209, subdivision (b), aggravated kidnapping occurs when a person kidnaps an individual to commit robbery, rape, forcible sexual penetration, or various other sex crimes. Under section 667.61, subdivisions (a) and (d)(2), a person who commits forcible sexual penetration or certain other sex offenses receives a greater sentence if the movement of the victim substantially increased the risk of harm beyond that necessarily inherent in the underlying sex crime.
The asportation or movement element for aggravated kidnapping has two prongs. First, the defendant's movement of the victim must be more than merely incidental to the underlying crime. Second, the movement must "increase[] the risk of harm to the victim over and above that necessarily present in the underlying crime itself." (People v. Martinez (1999) 20 Cal.4th 225, 232 (Martinez); see People v. Robertson (2012) 208 Cal.App.4th 965, 983 (Robertson).) "[W]hether the victim's forced movement was merely incidental to the [underlying crime] is necessarily connected to whether it substantially increased the risk to the victim. 'These two aspects are not mutually exclusive, but interrelated.'" (People v. Dominguez (2006) 39 Cal.4th 1141, 1152 (Dominguez); see Martinez, at p. 236 ["The two prongs of aggravated kidnapping are not distinct, but interrelated, because a trier of fact cannot consider the significance of the victim's changed environment without also considering whether that change resulted in an increase in the risk of harm to the victim"].)
The sentencing allegations under section 667.61, subdivisions (a) and (d)(2), expressly require only that the movement substantially increase the risk of harm, but courts also have interpreted these subdivisions to require more than incidental movement to the underlying crime because substantial movement is inherent in any kidnapping offense involving another crime. (People v. Diaz (2000) 78 Cal.App.4th 243, 246 (Diaz).) Aggravated kidnapping (§ 209, subd. (b)) and the sentencing allegations (§ 667.61, subds. (a) & (d)(2)) differ in one respect: aggravated kidnapping requires the defendant's movement of the victim increase the risk of harm, but the sentencing allegations require the movement to "substantially" increase the risk of harm. (Compare §§ 209, subd. (b)(2) & 667.61, subd. (d)(2).)
The crime of aggravated kidnapping previously required a substantial increase in the risk of harm, but the Legislature amended section 209 in 1997 to eliminate this requirement. (People v. Simmons (2015) 233 Cal.App.4th 1458, 1471.)
"Application of [the asportation requirement and its two prongs] in any given case will necessarily depend on the particular facts and context of the case." (Dominguez, supra, 39 Cal.4th at p. 1153.) B. Substantial Evidence Supports the Asportation Element
Pruitt challenges the sufficiency of the evidence to support the asportation element for both the sentencing allegations and the aggravating kidnapping count, asserting his movement of E.G. was merely incidental to the sexual penetration crime, and did not substantially increase the risk of harm to her. We conclude substantial evidence supports both prongs of the asportation element.
"When assessing a challenge to the sufficiency of the evidence, the reviewing court must decide whether the record contains substantial evidence such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] In applying this test, we review the entire record in the light most favorable to the judgment and presume in its support the existence of every fact the trier could reasonably have deduced from the evidence. [Citation.] 'In deciding the sufficiency of the evidence, we ask whether, "'after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" [Citation.] We resolve neither credibility issues nor evidentiary conflicts; we look for substantial evidence.'" (Robertson, supra, 208 Cal.App.4th at pp. 982-983; see Dominguez, supra, 39 Cal.4th at p. 1153.)
1. Pruitt's Movement of E.G. Was Not Merely Incidental to the Sexual Penetration Crime
"In determining 'whether the movement is merely incidental to the [underlying] crime . . . the jury considers the "scope and nature" of the movement. [Citation.] This includes the actual distance a victim is moved[, but] . . . there is no minimum number of feet a defendant must move a victim in order to satisfy the first prong.'" (Martinez, supra, 20 Cal.4th at p. 233.) "'Where movement changes the victim's environment, it does not have to be great in distance to be substantial.'" (Robertson, supra, 208 Cal.App.4th at p. 986; see People v. Aguilar (2004) 120 Cal.App.4th 1044, 1048 (Aguilar).)
Robbery often involves merely incidental movement of the victim to locate and take the property. (Diaz, supra, 78 Cal.App.4th at p. 248; People v. Salazar (1995) 33 Cal.App.4th 341, 347-348, fn. 8 (Salazar).) For example, moving a robbery victim around the house or business where the crime occurred is merely incidental to the robbery. (See, e.g., People v. Mutch (1971) 4 Cal.3d 389, 397-399 [moving victims 30 to 40 feet from one room to another in business establishment where robbery occurred]; People v. Williams (1970) 2 Cal.3d 894, 902 [moving victim around gas station premises where robbery occurred]; People v. Daniels (1969) 71 Cal.2d 1119, 1122-1125 [moving victims 5 to 30 feet within their homes where robberies occurred].)
Incidental movement of the victim in a rape or sexual penetration case rarely occurs because it is usually unnecessary to move the victim to commit the crime. (People v. Shadden (2001) 93 Cal.App.4th 164, 169 (Shadden); Salazar, 33 Cal.App.4th at pp. 347-348, fn. 8; see Robertson, supra, 208 Cal.App.4th at p. 986 ["Kidnapping for the purpose of robbery is not analogous to kidnapping for the purpose of rape"].) Moving the victim before committing a sex crime may help the perpetrator avoid detection, but moving the victim is "not natural to the crime." (Salazar, at p. 347.) Indeed, "'[w]here a defendant drags a victim to another place, and then attempts a rape, the jury may reasonably infer that the movement was neither part of nor necessary to the rape.'" (Robertson, at p. 984; see Shadden, at p. 169.)
For example, in Salazar, the Court of Appeal concluded the defendant's movement of a rape victim 29 feet from a motel's exterior walkway into the bathroom of a nearby motel room was not merely incidental to the rape. (Salazar, supra, 33 Cal.App.4th at p. 344.) The Salazar court explained this movement was not a natural part of committing the rape because the defendant could have committed the crime outside the motel room without moving her at all, but moved her to avoid detection and make the crime easier to commit. (Id. at p. 347.)
Similarly, in Shadden, the Court of Appeal concluded moving the victim nine feet from the public counter at a video store to the backroom behind a closed door was not merely incidental to an attempted rape. (Shadden, supra, 93 Cal.App.4th at p. 167.) The court explained that moving the victim typically is not a natural part of committing a rape, noting "The jury could reasonably infer that the movement was not incidental to the attempted rape because [the defendant] only began the sexual attack after he moved her." (Id. at p. 169.) Even though the defendant only moved the victim nine feet, that movement changed the victim's environment and therefore satisfied the asportation element. (Ibid. ["Where movement changes the victim's environment, it does not have to be great in distance to be substantial"].)
Diaz "provides a good illustration of the distinction between incidental and nonincidental movements [concerning a sex crime]." (Diaz, supra, 78 Cal.App.4th at p. 248.) There, the defendant accosted the victim as she approached a bus stop near a major intersection in Los Angeles. It was approximately 5:00 a.m. and it was still dark outside, but streetlights lighted the nearby intersection. The defendant forced the victim toward a nearby park and pushed her to the ground on a grassy area next to the sidewalk. When a passerby stopped her car and said something, the defendant covered the victim's mouth, and forced her to the backside of a large recreation center building where it was completely dark. He then resumed his attack on the victim, but a police officer summoned by the passerby intervened after locating the defendant based on the victim's cries for help. (Ibid.)
In affirming the defendant's sentence under section 667.61, subdivisions (a) and (d)(2), the Court of Appeal observed, "Before the interruption by the passerby, defendant had attacked the prone victim on a grassy strip immediately adjacent to the sidewalk, in full view of a major urban street. The movement from the sidewalk to the grassy strip could easily be characterized as incidental, in that it effected no substantial change in the surroundings, and may have been a short distance from where the defendant first made contact with the victim. However, the forcible movement of the victim into the darkened park and behind a large building was properly found by the jury to have been more than incidental to the sexual assault." (Diaz, supra, 78 Cal.App.4th at pp. 248-249.)
Diaz also illustrates that the victim's movement may be substantial even though the victim remains in a public location subject to detection. Aguilar cites Diaz for the proposition, "Courts have held that moving a victim to a more isolated open area which is less visible to public view is sufficient." (Aguilar, supra, 120 Cal.App.4th at p. 1049.) In Aguilar, the victim was walking her dog on a residential street at night when the defendant forcibly moved her 133 feet down the sidewalk to a darkened area shielded by nearby trees. The court found this movement substantial because it changed the victim's environment and limited the chance of detection. (Id. at pp. 1047, 1049; see Dominguez, supra, 39 Cal.4th at pp. 1153-1154 [nighttime movement of rape victim 25 feet from roadside to orchard 10 to 12 feet below level of road was substantial because movement obscured the crime from onlookers and decreased likelihood of detection]; People v. Rayford (1994) 9 Cal.4th 1, 23 [nighttime movement of attempted rape victim behind wall and small tree 34 feet from nearby street was substantial because it "limited detection" of crime].)
Here, the jury reasonably concluded Pruitt's movement of E.G. was substantial and not merely incidental to the sexual penetration crime. Pruitt could have attempted to sexually penetrate E.G. on the Orangethorpe Avenue sidewalk; he did not need to move her to commit the crime. Nonetheless, before attempting the attack, Pruitt moved E.G. 50 feet down the pathway between the rear wall of the glass and screen shop and the block wall in the parking lot. This movement substantially changed E.G.'s environment and reduced the likelihood of detection by moving E.G. from the morning daylight on a busy public street to the shadows of the trees 50 feet down the pathway. Moreover, Pruitt further reduced the risk of detection when he forced E.G. to the ground behind some bushes. Rivera and Darjuan intervened only because they were looking for her after they heard her scream and saw Pruitt force her from the sidewalk and down the pathway. No evidence suggested passerbys would have noticed Pruitt and E.G. unless they were looking for them.
Pruitt attaches great significance to the undisputed fact he attacked E.G. in plain daylight. According to Pruitt, moving E.G. 50 feet down the pathway did not change her environment because the daylight allowed Rivera and Darjuan to see E.G. Pruitt's brazen daylight attack, however, does not exonerate him from liability for aggravated kidnapping. Indeed, the jury reasonably could conclude the daylight motivated him to move E.G. 50 feet to a more confined and isolated area where the shadows from the trees, the bushes, and the large walls obscured the public's view and reduced the likelihood of detection. The timing of the attack during the daylight and morning commute is one factor to be considered, but it did not prevent the jury from reasonably concluding the movement was substantial rather than merely incidental to the sexual penetration crime.
Pruitt also contends his movement of E.G. is similar to the first movement of the victim in Diaz, which the Court of Appeal found to be merely incidental to the sex crime. We disagree. The first movement in Diaz was to "a grassy strip immediately adjacent to the sidewalk, in full view of a major urban street" that made no change to the victim's environment. (Diaz, supra, 78 Cal.App.4th at p. 249.) As explained above, Pruitt's movement of E.G. significantly changed her environment. Although Pruitt's movement of E.G. may not have been as substantial as the second movement in Diaz, the determination whether the movement was nonetheless substantial was for the jury to make. On appeal, our task is not to determine whether the jury could have reached a different conclusion based on the evidence. Rather, we are limited to determining whether the evidence was sufficient to support the determination the jury made. As explained above, ample evidence supported the jury's decision.
2. Pruitt's Movement of E.G. Substantially Increased the Risk of Harm
"'The second prong [of the asportation element] . . . refers to whether the movement subjects the victim to a substantial increase in risk of harm above and beyond that inherent in [the underlying crime]. [Citations.] This includes consideration of such factors as the decreased likelihood of detection, the danger inherent in a victim's foreseeable attempts to escape, and the attacker's enhanced opportunity to commit additional crimes. [Citations.] The fact that these dangers do not in fact materialize does not, of course, mean that the risk of harm was not increased.'" (Martinez, supra, 20 Cal.4th at p. 233.) "Any determination of the increase in the risk of harm involves a comparison of the victim's physical location before and after the asportation." (Salazar, supra, 33 Cal.App.4th at p. 348.)
Shadden concluded moving an attempted rape victim nine feet from the video store counter to the store's closed backroom substantially increased the risk of harm by placing the victim out of public view. The court explained that movement of nine feet "made it less likely for others to discover the crime," "decreased the odds of detection," and "enhanced the opportunity to rape and injure [the victim]." (Shadden, supra, 93 Cal.App.4th at pp. 169-170; see Salazar, supra, 33 Cal.App.4th at p. 348 [moving victim from exterior walkway to motel room substantially increased risk of harm].)
As with the first prong, the movement does not have to completely remove the victim from public view or place the victim in an enclosure. Obscuring the victim from public view substantially increases the risk of harm beyond that inherent in the underlying crime. (Dominguez, supra, 39 Cal.4th at p. 1153-1154.) Aguilar concluded moving a victim 133 feet down a residential sidewalk from an area illuminated by a front porch light to a dark front yard shielded from other lights substantially increased the risk of harm. Even though the victim remained on a public sidewalk, the move to a darkened area decreased the likelihood of detection, made it more difficult for the victim to escape, and enhanced the opportunity for the defendant to commit additional crimes. (Aguilar, supra, 120 Cal.App.4th at p. 1049.)
Here, the evidence supports the jury's conclusion Pruitt's movement of E.G. substantially increased the risk of harm beyond that inherent in the sexual penetration crime. Pruitt decreased his likelihood of detection and enhanced his opportunity to commit additional crimes by moving E.G. 50 feet from the sidewalk of a busy public street to a more isolated area that was no more than 10 to 15 feet wide, and bordered by the back wall of the glass and screen shop and the block wall for the senior apartments' parking lot. The area's trees shaded E.G. and Pruitt from some of the morning sunlight, and the bushes behind which Pruitt forced E.G. obscured her from public view.
Pruitt contends the movement did not substantially increase the risk of harm because Rivera and Darjuan still could hear E.G. and see her feet. The issue, however, is whether the movement obscured the victim from public view, made detection less likely, and enhanced the opportunity for additional crimes, not whether the movement successfully hid the victim from view, prevented detection, and allowed additional crimes to be committed. For example, in Aguilar, moving the victim to the dark front yard substantially increased the risk of harm even though the victim's screams led a nearby resident to chase off the defendant before he completed his attack. (Aguilar, supra, 120 Cal.App.4th at pp. 1047, 1049.) As the Aguilar court explained, a good Samaritan rescuing the victim and preventing the defendant from completing his attack "'"does not . . . mean that the risk of harm was not increased [by the movement]."'" (Id. at p. 1050.) Similarly, the police officer responding to the victim's cries and stopping the attack in Diaz did not mean the defendant's movement of the victim behind the recreation center building failed to substantially increase the risk of harm inherent in the underlying sex crime. (See Diaz, supra, 78 Cal.App.4th at p. 249.) C. The Trial Court Properly Instructed the Jury on the Asportation Element
Pruitt contends we must reverse the judgment because the trial court's instructions on aggravated kidnapping failed to advise the jury that the elements of the offense included movement of the victim that increased the risk of harm beyond that inherent in the sexual penetration crime. Pruitt also argues none of the court's kidnapping instructions adequately informed the jury how to determine whether Pruitt's movement of E.G. was substantial or merely incidental to the sexual penetration crime. We conclude the court properly instructed the jury with the applicable CALCRIM instructions.
"'A trial court must instruct the jury "on the law applicable to each particular case." [Citation.] "[E]ven in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence." [Citation.] Therefore, a claim that a court failed to properly instruct on the applicable principles of law is reviewed de novo.'" (People v. Mathson (2012) 210 Cal.App.4th 1297, 1311 (Mathson).)
"'In conducting this review, we first ascertain the relevant law and then "determine the meaning of the instructions in this regard." [Citation.] [¶] The proper test for judging the adequacy of instructions is to decide whether the trial court "fully and fairly instructed on the applicable law . . . ." [Citation.] "'In determining whether error has been committed in giving or not giving jury instructions, we must consider the instructions as a whole . . . [and] assume that the jurors are intelligent persons and capable of understanding and correlating all jury instructions which are given. [Citation.]'" [Citation.] "Instructions should be interpreted, if possible, so as to support the judgment rather than defeat it if they are reasonably susceptible to such interpretation."'" (Mathson, supra, 210 Cal.App.4th at pp. 1311-1312.)
"'The meaning of instructions is no[t] . . . determined under a strict test of whether a "reasonable juror" could have understood the charge as the defendant asserts, but rather under the more tolerant test of whether there is a "reasonable likelihood" that the jury misconstrued or misapplied the law in light of the instructions given, the entire record of trial, and the arguments of counsel.'" (Mathson, supra, 210 Cal.App.4th at p. 1312; see People v. Vang (2009) 171 Cal.App.4th 1120, 1129.)
The trial court instructed the jury on aggravated kidnapping using CALCRIM No. 1203 and on the aggravated kidnapping enhancement using CALCRIM No. 3175. As relevant to the asportation element, CALCRIM No. 1203 states: "To prove that the defendant is guilty of [kidnapping for purposes of sexual penetration in violation of section 209, subdivision (b)], the People must prove that: [¶] . . . [¶] 3. Using that force or fear, the defendant moved the other person or made the other person move a substantial distance; [¶] 4. The other person was moved or made to move a distance beyond that merely incidental to the commission of a (sexual penetration); [¶] . . . [¶] As used here, substantial distance means more than a slight or trivial distance. The movement must have increased the risk of harm to the person beyond that necessarily present in the (sexual penetration). In deciding whether the movement was sufficient, consider all the circumstances relating to the movement."
The jury instruction the trial court gave on simple kidnapping as a lesser included offense, CALCRIM No. 1215, included the following paragraph describing the asportation element on that offense: "Substantial distance means more than a slight or trivial distance. In deciding whether the distance was substantial, you must consider all the circumstances relating to the movement. Thus, in addition to considering the actual distance moved, you may also consider other factors such as whether the distance the other person was moved was beyond that merely incidental to the commission of sexual penetration, whether the movement increased the risk of physical or psychological harm, increased the danger of a foreseeable escape attempt, or gave the attacker a greater opportunity to commit additional crimes, or decreased the likelihood of detection." Thus, increasing the risk of harm was a factor that could be considered in deciding the asportation element on the simple kidnapping count, but it was an essential characteristic of the movement on the aggravated kidnapping count. (See Martinez, supra, 20 Cal.4th at p. 237.)
As relevant to the asportation element, CALCRIM No. 3175 states: "To prove [the sentencing allegation of section 667.61, subdivisions (a) and (d)(2)], the People must prove: [¶] . . . [¶] 2. Using that force or fear, the defendant moved [E.G.] or made (her) move a substantial distance; [¶] 3. The movement of [E.G.] substantially increased the risk of harm to (her) beyond that necessarily present in the sexual penetration; [¶] . . . [¶] Substantial distance means more than a slight or trivial distance. The movement must be more than merely incidental to the commission of sexual penetration. In deciding whether the distance was substantial and whether the movement substantially increased the risk of harm, you must consider all the circumstances relating to the movement. [¶] The People have the burden of proving each allegation beyond a reasonable doubt. If the People have not met this burden, you must find that the allegation has not been proved."
Pruitt contends CALCRIM No. 1203 is "constitutionally deficient" because it fails to inform the jury that increasing the risk of harm to the victim is an element of aggravated kidnapping, and instead "relegat[es] this element to a descriptive paragraph" following the enumerated list of elements. According to Pruitt, the instruction confused the jury because it failed to distinguish between the different findings necessary to satisfy the asportation requirement. We disagree.
As explained above, both section 209, subdivision (b)(2), and the case law addressing aggravated kidnapping make clear the asportation element has two prongs: (1) the defendant's movement of the victim must be substantial, not merely incidental, to the underlying crime, and (2) the movement must increase the risk of harm beyond that inherent in the underlying crime. (Martinez, supra, 20 Cal.4th at p. 232; see Dominguez, supra, 39 Cal.4th at p. 1153 ["the applicable test . . . is clear: for aggravated kidnapping, the victim must be forced to move a substantial distance, the movement cannot be merely incidental to the target crime, and the movement must substantially increase the risk of harm to the victim"].) The Supreme Court has emphasized the asportation element's two prongs "'are not mutually exclusive, but interrelated,'" and the jury must evaluate the movement based on the totality of the circumstances in each case. (Dominguez, at pp. 1152, 1153.) All of the factors to be considered are "difficult to capture in a simple verbal formulation that would apply to all cases." (Id. at p. 1151.)
CALCRIM No. 1203 adequately instructs the jury on these essential characteristics. It advises the jury the movement must be for a "substantial distance," which is "more than a slight or trivial distance." It further instructs Pruitt must have moved E.G. "a distance beyond that merely incidental to the commission of a (sexual penetration)" and "[t]he movement must have increased the risk of harm to the person beyond that necessarily present in the (sexual penetration)." Finally, the instruction explains the jury must consider all the circumstances relating to the movement.
The omission of the increased risk component from the instruction's enumerated list of matters the prosecution must prove does not render the instruction constitutionally infirm. That component is included in the paragraph elaborating on the movement's essential characteristics and states the movement "must have increased the risk of harm." (Italics added.) CALCRIM No. 1203 therefore adequately informed the jury that Pruitt's movement of E.G. had to increase the risk of harm to E.G. beyond that present in the sexual penetration crime. Nothing more was required.
Pruitt also argues the CALCRIM instructions on kidnapping—CALCRIM Nos. 1203, 1215, and 3175—are deficient as a whole because they failed to provide adequate guidance on how to "distinguish movement merely incidental to the sex offense from movement that goes beyond merely incidental." Pruitt contends the court should have further instructed the jury with CALJIC No. 9.50.1 or another instruction that more accurately described how the jury should distinguish between substantial movement and movement that is merely incidental to the underlying sex offense. We disagree.
The trial court also instructed the jury with CALCRIM No. 3179 for the sentencing allegations based on section 667.61, subdivisions (b) and (e)(1). That instruction merely referred the jury to the instruction regarding simple kidnapping and did not provide any additional information concerning the asportation element.
CALJIC No. 9.50.1 provides as follows: "The determination by you of whether a particular distance moved was substantial and increased the risk of harm to the alleged victim depends upon a consideration of the totality of the circumstances involved in this case. Whether the alleged victim's forced movement was merely incidental to the [underlying crime[s]] is necessarily connected to whether it substantially increased the risk of harm to the alleged victim. Distance moved is simply one factor. No minimum distance is required so long as the movement is substantial. Other factors you should consider are the scope and nature of the movement, as well as the context of its environment, including but not limited to, whether the movement decreased the likelihood of detection, increased the danger inherent in an alleged victim's foreseeable attempts to escape, or enhanced the attacker's opportunity to commit other crimes."
Pruitt provides no explanation how or why the CALCRIM instructions failed to adequately instruct the jury on the asportation element of aggravated kidnapping, and in particular, the requirement that the movement must be more than incidental to the crime. As explained above, CALCRIM Nos. 1203 and 3175 both identified the essential characteristics of the movement that the jury must find before concluding the asportation element had been satisfied. (See Dominguez, supra, 39 Cal.4th at p. 1153; Martinez, supra, 20 Cal.4th at p. 232.) As used in the statutes and case law concerning aggravated kidnapping, the phrase "not merely incidental" does not have any special or technical meaning. The commonly understood meaning of "incidental" is "being likely to ensue as a chance or minor consequence." (<https://www.merriam-webster.com/dictionary/incidental> [as of March 22, 2017].) That is the same meaning the term had in these instructions and the statutes and case law concerning aggravated kidnapping. The trial court instructed the jury, "Some words or phrases used during this trial have legal meanings that are different from their meanings in everyday use. These words and phrases will be specifically defined in these instructions. . . . Words and phrases not specifically defined in these instructions are to be applied using their ordinary, everyday meanings." (See CALCRIM No. 200.)
Moreover, Pruitt never asked the trial court to give CALJIC No. 9.50.1 or any other instruction that allegedly elaborates on whether movement was merely incidental to the crime. A trial court's sua sponte duty to instruct the jury only extends to "'general principles of law that are commonly or closely and openly connected to the facts before the court and that are necessary to the jury's understanding of the case,'" including all elements of the charged offense. (People v. Mays (2007) 148 Cal.App.4th 13, 36; see People v. Estrada (1995) 11 Cal.4th 568, 574.) "As to additional matters 'falling outside the definition of a "general principle of law governing the case," it is "defendant's obligation to request any clarifying or amplifying instructions."'" (Mays, at p. 36; see Estrada, at p. 574.) "'When . . . a phrase "is commonly understood by those familiar with the English language and is not used in a technical sense peculiar to the law, the court is not required to give an instruction as to its meaning in the absence of a request."'" (People v. Nguyen (2015) 61 Cal.4th 1015, 1050-1051 (Nguyen).) As explained above, the statutes and case law concerning aggravated kidnapping use the term incidental in its commonly understood sense, and therefore the trial court had no duty to elaborate upon that term and Pruitt waived any objection to the instructions by failing to request further clarification. (People v. Marks (2003) 31 Cal.4th 197, 237 ["if defendant favored further clarification, he needed to request it. His failure to do so waives this claim"].)
Finally, Pruitt points to the question the jury submitted about the meaning of incidental movement as evidence the instructions were deficient. A jury asking for elaboration on a concept addressed in an instruction, however, does not mean the instruction was improper or inadequate. Rather, it simply means the jury was struggling with how to apply the instruction. As explained above, the instructions accurately and completely set forth the governing law. D. Pruitt Forfeited His Challenge Regarding the Trial Court's Response to the Jury's Question on the Meaning of Incidental Movement
Pruitt contends the trial court compounded its instructional error and violated section 1138 by failing to adequately respond to the jury's question concerning the meaning of "merely incidental movement" referred to in the jury instructions. Pruitt forfeited this challenge because he failed to object to the court's response below. In fact, he proposed the response the court provided.
Section 1138 provides, "After the jury have retired for deliberation, . . . if they desire to be informed on any point of law arising in the case, . . . the information required must be given . . . ." This statute "creates a '"mandatory" duty to clear up any instructional confusion expressed by the jury.'" (People v. Loza (2012) 207 Cal.App.4th 332, 355 (Loza); see Nguyen, supra, 61 Cal.4th at p. 1050; People v. Beardslee (1991) 53 Cal.3d 68, 97 (Beardslee) [section 1138 imposes "a primary duty to help the jury understand the legal principles it is asked to apply"].)
A defendant, however, forfeits all challenges under section 1138 by either approving or failing to object to the trial court's response to a jury's question. (People v. Harris (2008) 43 Cal.4th 1269, 1317 (Harris) ["He has waived this argument by specifically agreeing below to the court's handling of the jury's question"]; People v. Roldan (2005) 35 Cal.4th 646, 729 (Roldan) overruled on other grounds as stated in People v. Doolin (2009) 45 Cal.4th 390, 421, and fn. 22 ["When a trial court decides to respond to a jury's note, counsel's silence waives any objection under section 1138"]; People v. Bohana (2000) 84 Cal.App.4th 360, 373 (Bohana) ["Where, as here, appellant consents to the trial court's response to jury questions during deliberations, any claim of error with respect thereto is waived"].) "'Approval of the court's action, even though it might have been a technical violation of section 1138 of the Penal Code, cures any possible error.'" (Roldan, at p. 729.)
During its deliberations, the jury submitted the following question to the trial court regarding the meaning of incidental movement: "Does merely incidental movement refer to and only to the movement necessary to physically perform the sexual action, independent of temporal variations in surrounding conditions OR does merely incidental movement include movement done to better perform the action when regarding temporally varying surrounding conditions. Temporal[l]y varying conditions that vary with time (i.e. sunlight, number of people around)."
The trial court conferred with the parties and proposed to ask the jury to clarify its question because the court did not understand it based on the jury's repeated use of the word "temporal," which did not appear in any of the instructions. Pruitt's counsel objected, and instead asked the court simply to refer the jury back to the existing instructions because counsel believed the jury was asking the court to analyze the issue for it. The court followed the suggestion of Pruitt's counsel and referred the jury to "Calcrim 1203 and any other jury instructions that may assist you in your deliberations."
Pruitt therefore forfeited his challenge to the trial court's response by failing to object to it below. (Harris, supra, 43 Cal.4th at p. 1317; Roldan, supra, 35 Cal.4th at p. 729; Bohana, supra, 84 Cal.App.4th at p. 373.) On appeal, Pruitt does not dispute he failed to object, nor does he dispute that failure forfeited his challenge to the court's response. Instead, he argues his counsel's failure to request the court respond to the jury's question by giving CALJIC No. 9.50.1 did not constitute invited error because that doctrine applies only when the party is aware a different course of action could have been taken. (See People v. Cooper (1991) 53 Cal.3d 771, 831 ["If counsel was ignorant of the choice, or mistakenly believed the court was not going to give it to counsel, invited error will not be found"].) According to Pruitt, there is no "suggestion in the record" that his counsel was aware of CALJIC No. 9.50.1, and therefore the record fails to establish his counsel made the sort of deliberate tactical choice necessary to establish invited error. This argument fails for several reasons.
Pruitt cites People v. Souza (2012) 54 Cal.4th 90, 114, for this quote, but it does not appear in that opinion.
First, Pruitt's forfeiture is not based on invited error, but rather his simple failure to object to the court's response. The foregoing authorities require a party to object to the court's response to preserve the argument for appeal. Whether Pruitt or the court proposed the response ultimately provided is irrelevant. Second, whether counsel failed to request CALJIC No. 9.50.1 does not mean the instructions on the meaning of incidental movement were inadequate. Third, it does not follow the failure of Pruitt's counsel to discuss or refer to CALJIC No. 9.50.1 meant counsel was unaware of that form instruction. As the appellant, Pruitt bore the burden to establish the facts necessary to support his challenges and he has failed to do so.
Even assuming Pruitt did not forfeit his challenge to the trial court's response, he failed to show the court abused its discretion in providing its response. Although section 1138 imposes a mandatory duty on the court to provide the jury with requested information on points of law, that "'does not mean the court must always elaborate on the standard instructions. Where the original instructions are themselves full and complete, the court has discretion under section 1138 to determine what additional explanations are sufficient to satisfy the jury's request for information.'" (People v. Eid (2010) 187 Cal.App.4th 859, 882; see Beardslee, supra, 53 Cal.3d at p. 97.) Referring the jury back to the original instructions may be an appropriate response when those instructions are accurate. (Harris, supra, 43 Cal.4th at p. 1317.) "We review for an abuse of discretion any error under section 1138." (Eid, at p. 882.)
As explained above, we conclude the CALCRIM instructions the trial court gave fully and accurately instructed the jury on the governing law concerning the asportation element. Whether and how to respond to the jury's question therefore was vested in the court's sound discretion. Based on Pruitt's objection to the court's proposal to seek clarification from the jury and the adequacy of the instructions provided, we cannot say it abused its discretion by referring the jury back to those instructions. E. Pruitt's Trial Counsel Did Not Render Ineffective Assistance
To forestall the argument he forfeited his challenges concerning the jury instructions, Pruitt argues "his attorney rendered constitutionally deficient performance in violation of the Sixth Amendment by failing to object to the inadequate instructions on the aggravated kidnapping charge and kidnapping related sentencing allegations and by failing to request the court respond to the jury's question during deliberations by instructing the jury was CALJIC 9.50.1." Not so.
"To establish ineffective assistance of counsel, '"'a defendant must first show counsel's performance was "deficient" because his "representation fell below an objective standard of reasonableness . . . under prevailing professional norms."'"'" (Nguyen, supra, 61 Cal.4th at p. 1051.) "'In determining whether counsel's performance was deficient, we exercise deferential scrutiny. [Citations.] The appellant must affirmatively show counsel's deficiency involved a crucial issue and cannot be explained on the basis of any knowledgeable choice of tactics. [Citation.] [¶] . . . "'"Reviewing courts defer to counsel's reasonable tactical decisions in examining a claim of ineffective assistance of counsel . . . .'" [Citation.] "[W]e accord great deference to counsel's tactical decisions" [citation], and we have explained that "courts should not second-guess reasonable, if difficult, tactical decisions in the harsh light of hindsight" [citation]. "Tactical errors are generally not deemed reversible, and counsel's decisionmaking must be evaluated in the context of the available facts."'"'" (Loza, supra, 207 Cal.App.4th at p. 351.)
"'"[T]here is a 'strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.'"' [Citation.] 'In the usual case, where counsel's trial tactics or strategic reasons for challenged decisions do not appear on the record, we will not find ineffective assistance of counsel on appeal unless there could be no conceivable reason for counsel's acts or omissions.' [Citation.] For this reason, claims of ineffective assistance of counsel 'are ordinarily best raised and reviewed on habeas corpus.'" (Nguyen, supra, 61 Cal.4th at p. 1051.)
Here, the performance of Pruitt's counsel was not deficient in failing to object to the jury instructions on the asportation element because, as explained above, those instructions provided a complete and accurate statement of the governing law. Similarly, there was no deficiency in counsel failing to request the court instruct the jury with CALJIC No. 9.50.1 in response to the jury's question. Pruitt fails to show counsel's decision to respond to the jury's question by merely referring the jury back to the CALCRIM instructions cannot be explained on the basis of any knowledgeable choice of tactics. (See Nguyen, supra, 61 Cal.4th at pp. 1051-1052 [ineffective assistance of counsel claim failed because "defendant fail[ed] to show that there could be no conceivable reason for trial counsel not to request such a clarifying instruction"].) To the contrary, the record reveals at least two tactical reasons for objecting to the court's suggestion the jury should clarify its question.
Pruitt's trial counsel argued the question was tantamount to asking the court to resolve a factual dispute that only the jury could determine. Counsel tactically may have believed any response other than referring the jury to the existing instructions would usurp the jury's function.
The jury's question demonstrates the jury was experiencing difficulty in deciding whether Pruitt's movement of E.G. was merely incidental to the sexual penetration crime. By leaving the jury to its own devices based on the existing instructions, Pruitt's counsel could have believed she was increasing his chances of an acquittal or hung jury because the question suggested there was disagreement on the significance of the movement. That is at least one conceivable reason for not asking the jury to clarify its question, and not providing additional guidance to the jury on the meaning of incidental movement. Accordingly, the record on this direct appeal does not establish the ineffective assistance of counsel.
III
DISPOSITION
The judgment is affirmed.
ARONSON, J. WE CONCUR: BEDSWORTH, ACTING P. J. THOMPSON, J.