APPEAL from a judgment of the Superior Court of Shasta County, Steven E. Jahr, Judge. Affirmed. (Super. Ct. No. 06F3312).
The opinion of the court was delivered by: Sims, J.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
A jury convicted defendant Ty Hudson of one count of kidnapping (Pen. Code, § 207, subd. (a))*fn2 and two counts of false imprisonment (§ 236). On appeal, defendant contends that (1) insufficient evidence of asportation supported the kidnapping conviction, (2) one count of false imprisonment should be reversed because it is a lesser included offense of kidnapping, (3) even if not a lesser included offense of kidnapping, section 654 prohibits a separate sentence for the false imprisonment conviction, (4) the trial court erred by failing to give a unanimity instruction, (5) Judicial Council of California Criminal Jury Instructions (CALCRIM) No. 318 improperly lessened the prosecution's burden of proof, and (6) the trial court's imposition of the upper term for kidnapping violated his right to jury trial as articulated in Cunningham v. California (2007) 549 U.S. 270 [166 L.Ed.2d 856] (Cunningham).
In the published portion of the opinion, we reject defendant's attack on CALCRIM No. 318. In the unpublished portion of the opinion, we reject defendant's other contentions of error. Accordingly, we shall affirm the judgment.
FACTUAL AND PROCEDURAL HISTORY
In July 2006, the Shasta County District Attorney filed an information charging defendant with kidnapping (§ 207, subd. (a)), two counts of false imprisonment (§ 236), and corporal injury to a cohabitant (§ 273.5, subd. (a)). The information further alleged that defendant had a prior serious felony conviction (§ 1170.12, subds. (a)-(d)).
Evidence adduced at trial showed that, on December 18, 2005, defendant and his then-girlfriend, Desiray, sat arguing in his truck. The truck was parked in an area known as Johnson Park, which is about two miles east of the town of Burney. When the argument became heated, Desiray got out of the truck and started walking down the highway. When she reached the parking lot of Sam's Pizza, defendant pulled his truck in front of her. Defendant got out and told her, ―[Y]ou're not going anywhere. You're a stupid bitch. This is what I do to stupid dumb bitches.‖ Defendant grabbed Desiray and threw her into the truck. Desiray protested that she did not want to go with him and kicked at the door in an unsuccessful attempt to escape.
Defendant drove to Sandpit Road, which is located about three or four miles from where they started in Johnson Park. While driving, defendant slammed Desiray's head against the dashboard with sufficient force that the dashboard cracked. She believed that defendant intended to kill her.
When defendant parked on Sandpit Road, Desiray got out of the truck and took off running. Defendant pursued her. She became exhausted and collapsed. Defendant picked her up and put her back into his truck.
On January 13, 2006, defendant and Desiray were watching a movie while lying on the living room floor of a friend's mobile home. Desiray fell asleep and accidentally hit defendant in the groin. Defendant grew angry and accused her of kicking him intentionally. He slapped her face and choked her. Defendant then threw Desiray against a wall and told her that he was going to kill her. From the choking, Desiray sustained bruising around her neck.
The next day, Desiray showed up soaking wet and upset at the house of her friend, Marilyn Weeks. Weeks invited her in and provided a robe for Desiray to change into. Weeks then saw the bruising around Desiray's neck. As they sat on the bed, Desiray told Weeks about the previous day's attack by defendant as well as the incident on December 18, 2005.
On January 20, 2006, Weeks called the Sheriff's Office. Shasta County Sheriff's Department Deputy Stephen Harper responded and interviewed Desiray. Desiray appeared to be extremely frightened. She told the deputy that she had been involved in domestic violence incidents with defendant on December 10 and 18, 2005, and on January 13, 2006. Asked to recount the December 10 incident, Desiray stated that she could not remember it. She did, however, describe the attacks on her by defendant on December 18 and January 13.
When the deputy asked why she had delayed reporting the incidents, Desiray stated that she feared defendant was going to kill her. She also stated that she was pregnant with defendant's child. Defendant and Desiray subsequently married.
At trial, Desiray denied that she had ever been attacked by defendant. She also denied that she had the injuries or bruises described by Weeks. She stated that she lied about the attacks because of coercion by a former lover, Hishkama Wilson. Wilson supposedly became jealous upon learning of Desiray's pregnancy, and threatened to injure Desiray, defendant, and their unborn child unless she made false reports against defendant.
Desiray acknowledged that no one else heard the threats made by Wilson. And, Weeks testified that the only person Desiray had ever expressed fear of was defendant.
During trial, the court dismissed the corporal injury charge. The jury convicted defendant on the three remaining counts. A court trial was held on the issue of the prior conviction allegation, which the court found to be true.
The trial court sentenced defendant to an aggregate prison term of 17 years and four months. The sentence comprised 16 years for kidnapping (the upper term of eight years, doubled); a consecutive 16 months for the first count of false imprisonment (one-third the mid-term of two years, doubled); and a concurrent six years for the second count of false imprisonment (the upper term of three years, doubled).
I. Evidence of Asportation
Defendant contends the evidence adduced at trial is insufficient to support his kidnapping conviction. For reasons that follow, we disagree.
Subdivision (a) of section 207 sets forth the definition of kidnapping as follows: ―Every person who forcibly, or by any other means of instilling fear, steals or takes, or holds, detains, or arrests any person in this state, and carries the person into another country, state, or county, or into another part of the same county, is guilty of kidnapping.‖
Asportation is an element of kidnapping that refers to the movement of a victim against his or her will for a substantial distance. Prior to 1999, asportation was determined solely by the actual distance the victim was moved. (People v. Caudillo (1978) 21 Cal.3d 562, 572, overruled in People v. Martinez (1999) 20 Cal.4th 225, 229 (Martinez).) In Martinez, the California Supreme Court explained ―that the trier of fact may consider more than actual distance‖ in determining whether the movement of the victim was ―substantial in character.‖ (Id. at p. 235.) Thus, a jury may consider the totality of the circumstances when deciding whether the movement was substantial. (Id. at p. 237.)
The Martinez court held that a jury may consider ―such factors as whether that movement increased the risk of harm above that which existed prior to the asportation, decreased the likelihood of detection, and increased both the danger inherent in a victim's foreseeable attempts to escape and the attacker's enhanced opportunity to commit additional crimes.‖ (Martinez, supra, 20 Cal.4th at p. 237, fn. omitted.) Although the jury is allowed to take into account considerations in addition to actual distance, the Supreme Court cautioned that ―contextual factors, whether singly or in combination, will not suffice to establish asportation if the movement is only a very short distance.‖ (Ibid.)
Cases decided since Martinez have held that quite short distances suffice for kidnapping when the movement substantially changes ―the context of the environment.‖ (People v. Diaz (2000) 78 Cal.App.4th 243, 247.) The Diaz court upheld a kidnapping conviction based on a distance of approximately 150 to 300 feet because the victim was moved from a visible street location to a completely dark portion of an adjacent park where the chances of detection were minimized. (Id. at p. 248.)
Even distances of just several feet have sufficed to meet the asportation requirement for kidnapping. In People v. Shadden (2001) 93 Cal.App.4th 164, a defendant's aggravated kidnapping conviction was affirmed even though the victim was moved only nine feet before defendant began to assault her.
This short movement sufficed for kidnapping because the victim was moved from the front of a video store to a backroom with the door closed. (Id. at p. 167.) Because the backroom was out of public view, the risk of harm to the victim was increased. (Id. at pp. 169-170.) The court noted the ―critical factor‖ was whether the defendant ―secluded or confined‖ the victim. (Id. at p. 170.) Similarly, the Court of Appeal affirmed a kidnapping conviction in a case in which the defendant caused the victims to move about 10 feet from a public area to a small back room with no windows and a solid door. (People v. Corcoran (2006) 143 Cal.App.4th 272, 279.) The Corcoran court explained that even this short distance substantially increased the danger to the victims due to the back room's lack of visibility. (Id. at p. 280.)
In considering the sufficiency of the evidence of asportation, ―the reviewing court must examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence--evidence that is reasonable, credible and of solid value--such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] The appellate court presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.‖ (People v. Kraft (2000) 23 Cal.4th 978, 1053.) We do not reweigh the evidence or reevaluate a witness's credibility. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)
Resolving all conflicts in the evidence and questions of credibility in favor of the verdict, we conclude that substantial evidence of asportation supports defendant's kidnapping conviction.
On the charge of kidnapping, the testimony at trial established that defendant moved Desiray several miles against her will. Marilyn Weeks recounted that Desiray ―had also told [Weeks] about another incident that had happened earlier in December where they had an altercation in Johnson Park and he had driven her out from Johnson Park to Sandpit Road, slamming her head against the dashboard the whole way.‖ The prosecutor immediately followed up on this statement by ...