California Court of Appeals, Fourth District, Third Division
Appeal from a judgment of the Superior Court of Orange County, No. 10NF1197 James Edward Rogan, Judge. Affirmed in part,
Tracy A. Rogers, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Laura Baggett, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted defendant Sean Paul Delacerda of simple kidnapping (Pen. Code, § 207, subd. (a); all further undesignated statutory references are to this code), false imprisonment (§§ 236, 237, subd. (a)), assault with a firearm (§ 245, subd. (a)(2)), and domestic violence battery (§ 243, subd. (e)(1)), and found true allegations that in committing those crimes he personally used a firearm (§§ 12022.5, subd. (a), 12022.53, subd. (b)). The court sentenced defendant to a term of 13 years in prison.
Defendant claims the kidnapping conviction must be reversed because the false imprisonment, assault with a firearm, and domestic violence battery are “associated crimes” as that phrase was used in People v. Martinez (1999) 20 Cal.4th 225 [83 Cal.Rptr.2d 533, 973 P.2d 512] (Martinez), and the court erroneously failed to instruct the jury to consider whether the movement of the victim was merely incidental to the commission of those crimes. He also claims the evidence of movement is insufficient to support the kidnapping conviction.
We conclude the false imprisonment is not an associated crime as a matter of law, and the assault with a firearm is not an associated crime as a matter of fact. But we agree the evidence was sufficient to show the relationship between the kidnapping and the domestic violence battery meets the associated crime test set out in People v. Bell (2009) 179 Cal.App.4th 428, 438-439 [102 Cal.Rptr.3d 300] (Bell). So the court was required to instruct the jury to consider whether the movement of the victim was merely incidental to the commission of the domestic violence battery. And, since the failure to so instruct was not harmless beyond a reasonable doubt, the kidnapping conviction must be reversed.
The victim, Emily R., testified she and defendant, a deputy sheriff, began dating in the summer of 2009. At first, their relationship was stable, but after a while defendant became very possessive. Every time Emily tried to do
something on her own, defendant became depressed, told her he could not live without her, and wanted to commit suicide.
In the fall of 2009, Emily told defendant she wanted to end their relationship. He continued to call and send her text messages, in which he threatened to kill himself. Emily was worried about defendant, and she remained friends with him. They had sexual relations twice in November and twice in December 2009.
In April 2010, Emily spent the night with an ex-boyfriend. About 4:00 a.m., Emily awakened to her cell phone vibrating. There were several text and voicemail messages from defendant asking where she was. Emily sent him a text message saying she was fine and would call him in the morning.
Defendant responded that she needed to call him immediately. She did call, but she refused to tell him where she was. Defendant said, “I need to know where you are right now. Why aren’t you telling me the truth right now?” She replied, “We are not together anymore. Doesn’t matter where I am. It’s none of your business. You need to stop this. You need to knock it off. You need to stop.”
The next afternoon, Emily returned to her apartment. She was concerned defendant might be there, so she drove around looking for his car. Not seeing it, she parked and went in. When she unlocked her door, she saw defendant lying on the floor with a blood stain on his shirt, petting her cat.
Emily asked defendant, “What are you doing here?” He told her he wanted to talk. Emily responded, “I don’t want you here. You need to leave.” Defendant said he was upset and depressed. Defendant accused Emily of cheating on him. Emily reminded him they were no longer dating. She told him her whereabouts were none of his business, and he should stop trying to keep track of her.
After Emily told him several times to leave, he said, “Not yet, ” and added, “I wanted you to be here to see this.” He took a revolver from his pocket, put one bullet in it, and stood between her and the front door. Emily walked towards the front door, and asked, “What are you doing?” Defendant blocked the door and said, “No. I’m not going to hurt you” and “I just want to talk.”
Defendant removed the bullet from the gun, placed it on a table by the front door and said, “I want to read your e-mails.” Emily asked, “If I let you read my e-mails will you leave me alone forever?” He said, “I promise. I won’t bother you again.”
Emily went in the bathroom and locked the door. Defendant banged on the door and asked her what she was doing. When Emily came out, defendant was standing by the bathroom door. He said, “Let’s read your e-mails. Let’s do this.” They both went into her bedroom and sat down on the bed.
Emily opened her laptop computer. Defendant ordered her to show him her e-mails. Emily threw the laptop at him and tried to run away. When she was halfway across the apartment, he tackled her and they both fell to the floor.
Emily tried to scream but defendant put his hands over her mouth and nose so it was difficult for her to breathe. Defendant picked Emily up, and marched her back to the bedroom. He put the laptop on her lap and said, “Let’s keep looking. I want to see.” He pointed to the e-mails he wanted Emily to open.
As defendant was reading one of them, Emily threw the computer at him again and ran toward the front door. Defendant again tackled her, put his hands over her nose and mouth, dragged her back to the bedroom, and put her back on the bed. This time, defendant held on to the computer, and told Emily to sit down and shut up.
While defendant was reading her e-mails, Emily ran for a third time. She was near the front door when defendant tackled her to the ground once more. Defendant rolled her onto her back. Emily screamed. Defendant got on top of her. He put his hands over her mouth, and said, “Shut the fuck up” and “Okay, I’ve got to do this.”
Defendant grabbed the gun with his right hand while holding Emily down with his left. He opened the cylinder, put the bullet back in the gun, snapped it shut, and put the gun in his mouth. Emily begged defendant not to do anything. Defendant put his hands over her mouth again and pulled the trigger. The gun clicked but nothing happened. Emily screamed.
Defendant said, “Shut the fuck up. You need to shut up.” He pointed the gun at her face. Defendant kept telling Emily to “shut up” while she pleaded with him, “Please don’t do this” and “Please just stop.” Emily tried to deter defendant by warning him that the neighbors might have overheard the commotion and contacted the police. Defendant said, “You’re right. Someone had to have heard that. We have to end this.”
Emily said, “I’ll tell you anything you want.” “Just please stop.” Defendant rolled Emily over, dragged her back into the bedroom, shoved her into the closet, and blocked her exit. ...