Filed 6/22/17 P. v. Jackson CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.


IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO



THE PEOPLE,

Plaintiff and Respondent,

v.

JESSIE RAY JACKSON, JR.,

Defendant and Appellant.


E064061

(Super.Ct.No. FSB1405572)

OPINION


APPEAL from the Superior Court of San Bernardino County. William Jefferson Powell IV, Judge. Affirmed.
Cynthia Grimm, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris and Xavier Becerra, Attorneys General, Julie L. Garland, Senior Assistant Attorney General, and Randall D. Einhorn and Peter Quon, Jr., Deputy Attorneys General, for Plaintiff and Respondent.
Following a jury trial, defendant and appellant Jessie Ray Jackson, Jr., was convicted of kidnapping (Pen. Code, § 207, subd. (a)). In a bifurcated proceeding, the trial court found true the allegations that he suffered two prior prison terms within the meaning of section 667.5, subdivision (b). Defendant was sentenced to state prison for a total term of 10 years. On appeal, he contends there was insufficient evidence of kidnapping, the trial court erred in instructing the jury, the prosecutor committed misconduct during closing argument, defense counsel was ineffective, and the cumulative error doctrine applies. Rejecting these contentions, we affirm.
I. PROCEDURAL BACKGROUND AND FACTS
At approximately noon on March 27, 2014, San Bernardino Police Officer Aaron Jones and Detective David Baughman, were driving their unmarked police vehicle onto North G Street when they saw defendant forcefully moving Jane Doe from a vehicle that was parked in a driveway towards a silver Toyota Venza (Venza) parked on the street. Defendant’s right hand was on the back of Doe’s neck and his left hand was holding her left arm; her body was bent over at the waist. Officer Jones saw Doe trying to pull away. As the officers continued to watch, defendant opened the right rear passenger-side door of the Venza, pushed Doe inside, closed the door, walked around to the driver’s door, and got inside. The officers did not provide any testimony regarding the distance that defendant forcibly moved Doe between the parked vehicle to the Venza.
The officers observed that, as soon as defendant closed the driver’s door, Doe jumped out of the vehicle and began running away. Officer Jones saw her run across a four-lane city street without pausing or looking for traffic. Defendant chased Doe. It appeared that he was upset and angrily yelling at her.
Detective Baughman “believed” he was witnessing a kidnapping. The officers intercepted defendant, ordered him to the ground, and eventually handcuffed and arrested him. When Detective Baughman told defendant that he was stopped because he was “beating up” a girl that jumped out of his car, he responded that he “only slapped the bitch, [he] never beat her up.”
When Officer Jones talked to Doe, she was crying and shaking, and she appeared to be upset and scared; there was redness on her face. Officer Jones testified that there were people in the vicinity who could have potentially been witnesses to what happened between defendant and Doe prior to their arrival. Detective Baughman testified that no one came forward to inform the officers that Doe had been causing problems, or that defendant was defending them from Doe. When other officers were sent to the area the next day to see if there were any witnesses, they “got the same cold shoulder.”
II. DISCUSSION
Defendant challenges his kidnapping conviction on sufficiency of the evidence; incorrect jury instruction; prosecutorial misconduct in misstating the law and the evidence during closing argument; ineffective counsel; and cumulative error doctrine.
A. There Is Sufficient Evidence to Support the Kidnapping Conviction.
A person is guilty of simple kidnapping if he “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 part of the same county . . . .” (§ 207, subd. (a).) In order “‘to prove the crime of kidnapping, the prosecution must prove three elements: (1) a person was unlawfully moved by the use of physical force or fear; (2) the movement was without the person’s consent; and (3) the movement of the person was for a substantial distance. [Citation.]’ [Citation.]” (People v. Dalerio (2006) 144 Cal.App.4th 775, 781, fn. omitted.) The element that the victim be moved a substantial distance is called the asportation element. (People v. Bell (2009) 179 Cal.App.4th 428, 435.)
It was the People’s theory that defendant committed kidnapping by the act of taking Doe from a vehicle parked in a driveway, to an SUV parked on the street, 10 to 15 feet away. Defendant contends that insufficient evidence supports a finding of the asportation element of kidnapping. We disagree.
When a criminal defendant contends the evidence was insufficient to support his conviction, “‘we review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.]’ . . . The conviction shall stand ‘unless it appears “that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].”’ [Citation.]” (People v. Cravens (2012) 53 Cal.4th 500, 507-508.)
To satisfy the asportation element, “the movement must be ‘substantial in character.’” (People v. Martinez (1999) 20 Cal.4th 225, 235 (Martinez).) Determining whether movement is substantial in character “arguably should include some consideration of the ‘scope and nature’ of the movement or changed environment, and any increased risk of harm.” (Id. at p. 236.) Factors contributing to a finding of an increased risk of harm include: (1) diminished likelihood of discovery; (2) the opportunity for the commission of additional crimes; and (3) the possibility of injury from foreseeable attempts to escape. (Ibid.) Nevertheless, “[w]hile the jury may consider a victim’s increased risk of harm, it may convict of simple kidnapping without finding an increase in harm, or any other contextual factors. Instead, as before, the jury need only find that the victim was moved a distance that was ‘substantial in character.’” (Id. at p. 237.) Moreover, “contextual factors, whether singly or in combination, will not suffice to establish asportation if the movement is only a very short distance.” (Ibid.)
Defendant argues that because Doe was moved only a “very short distance,” that movement was legally insufficient to support asportation. In People v. Arias (2011) 193 Cal.App.4th 1428, 1435 (Arias), the court affirmed a kidnapping conviction in which the victim was moved 15 feet from outside to inside his apartment. Although the victim was moved at gunpoint away from a public area into the seclusion of a private apartment (id. at pp. 1434-1435) and Arias may be distinguished on that basis, the case is precedent that a movement of 15 feet is enough to support the asportation element. Defendant disagrees, arguing that this issue was not directly considered and resolved, and thus, Arias provides no authority on this point. Defendant notes that the majority’s analysis “made no mention of the distance of 15 feet being substantial or long; conversely, Justice Armstrong’s dissent characterized the distance of movement as ‘very short.’” (Id. at pp. 1434-1435 (maj. opn. of Kumar, J.), 1447-1448 (dis. opn. of Armstrong, J.).) However, Justice Armstrong’s dissenting conclusion was based on the “totality of the circumstances,” which included not only “the very short distance involved,” but also “the fact that [the victim] simply walked down the hall, and the absence of evidence of an increased risk of harm.” (Id. at pp. 1447-1448.)
The California Supreme Court has “‘resisted setting a specific number of feet as the required minimum distance’” (People v. Dominguez (2006) 39 Cal.4th 1141, 1155), explaining: “[A]s we have historically recognized for both aggravated and simple kidnapping, limiting a trier of fact’s consideration to a particular distance is rigid and arbitrary, and ultimately unworkable.” (Martinez, supra, 20 Cal.4th at p. 236.) We decline to do what our Supreme Court has resisted doing and will not conclude that, as a matter of law, a movement of 10 to 15 is insufficient to support asportation. It is for the jury to consider, and decide, if the circumstances of the victim’s forced movement was “‘substantial in character’” sufficient to establish the asportation required for simple kidnapping. (People v. Morgan (2007) 42 Cal.4th 593, 610; see Martinez, supra, at p. 237.)
Here, the evidence is sufficient to support the jury’s kidnapping verdict. Doe was forcibly moved 10 to 15 feet against her will from a vehicle parked in a driveway towards and into a vehicle parked on the street, minimizing the risk of detection, enhancing defendant’s opportunity to commit additional crimes, and increasing both the risk of harm and the danger inherent in her foreseeable attempts to escape. (Martinez, supra, 20 Cal.4th at p. 237; People v. Shadden (2001) 93 Cal.App.4th 164, 168 [determination of increased risk of harm requires consideration of whether the movement decreased the likelihood of detection and enhanced the defendant’s opportunity to commit additional crimes].) In her attempt to escape, Doe ran across a four-lane city street without regard to the traffic. The fact that the danger inherent in her attempt to escape did not materialize does not mean that the risk of harm was not increased. (People v. Leavel (2012) 203 Cal.App.4th 823, 834.) While in the vast majority of cases the increased risk of harm is a risk of physical harm, this requirement can also be satisfied by a risk of mental, emotional, or psychological harm. (Ibid.; People v. Rayford (1994) 9 Cal.4th 1, 14.)
B. The Trial Court Correctly Instructed the Jury on Asportation.
Defendant faults the trial court for failing to modify the language in CALCRIM No. 1215 (kidnapping (§ 207)). He contends the court should have instructed the jury that “it was not required to consider the contextual factors set forth in Martinez and that when the distance of movement is too brief, contextual factors alone cannot establish movement for a substantial distance.”
After the prosecution rested, the parties discussed the instructions that would be given to the jury. The instructions included CALCRIM No. 1215. Defense counsel did not object to CALCRIM No. 1215, nor did she ask that the instruction be modified or amplified. Thus, the court instructed the jury as follows: “‘The defendant is charged with kidnapping. [¶] To prove that the defendant is guilty of this crime, the People must prove that: [¶] One, the defendant took, held, or detained another person by using force or by instilling reasonable fear; [¶] Two, using that force or fear the defendant moved the other person or made the other person move a substantial distance; [¶] And, three, the other person did not consent to the movement. [¶] In order to consent, a person must act freely and voluntarily and know the nature of the act. [¶] 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 movement increased the risk of physical or psychological harm, increased the danger of a foreseeable escape attempt, gave the attacker a greater opportunity to commit additional crimes, or decreased the likelihood of detection . . . .’”
“An appellate court reviews the wording of a jury instruction de novo . . . .” (People v. O’Dell (2007) 153 Cal.App.4th 1569, 1574) and determines whether an instruction is complete and correctly states the law (People v. Posey (2004) 32 Cal.4th 193, 218; People v. Andrade (2000) 85 Cal.App.4th 579, 585). “[T]he proper test for judging the adequacy of instructions is to decide whether the jury was fully and fairly instructed on the applicable law [citation].” (People v. Partlow (1978) 84 Cal.App.3d 540, 558.)
Defendant faults the instruction for (1) requiring the jury to consider all the circumstances of the movement in determining whether the movement was substantial, and (2) failing to convey that if the victim was moved for a very short distance, contextual factors are not enough to establish that the movement was for a substantial distance. We consider these issues on the merits because defendant also raises them under the rubric of ineffective assistance of counsel.
Prior to Martinez, asportation for simple kidnapping required only an assessment of the “actual distance” the victim was moved. (People v. Caudillo (1978) 21 Cal.3d 562, 574, overruled as stated in Martinez, supra, 20 Cal.4th at p. 229.) The Martinez court changed this simplistic quantification of asportation, concluding that “the jury should consider the totality of the circumstances.” (Martinez, supra, at p. 237.) However, the court also stressed that the jury must find that the distance is “‘“substantial in character.”’” (Ibid.) When the distance involved is long enough that no reasonable person would question that it is substantial in character, other circumstances may be irrelevant, but a defendant could not then be prejudiced by an instruction that the jury must consider all of the circumstances. But when, as here, the distance is not so long, it is not possible for a jury to determine if the distance is substantial in character without considering evidence other than the distance alone and it is not error to instruct the jury that it must consider all of the circumstances. The bench notes for CALCRIM No. 1215 capture this distinction between distances that are facially substantial and those that are not by providing that the contextual factors listed in the instruction may be omitted “in the case of simple kidnapping, if the movement was for a substantial distance.” (Bench Notes to CALCRIM No. 1215.)
By telling the jury that “substantial distance” for kidnapping means that the forced movement must be more than a “slight or trivial distance,” CALCRIM No. 1215 conveyed, in commonsense terms, that a victim’s forced movement for only “a slight or trivial distance” does not prove a kidnapping. This admonition mirrors the Martinez holding that kidnapping requires the victim be moved “‘a distance more than slight or trivial.’” (Martinez, supra, 20 Cal.4th at p. 237.) Nonetheless, defendant correctly notes that CALCRIM No. 1215 does not admonish the jury that “[i]f the victim was moved a very short distance, [proof of] contextual factors are not enough to establish that the movement was for a ‘substantial distance’” sufficient to establish kidnapping. However, nothing in the instruction (or Martinez) suggests the contextual factors alone could render a distance substantial. CALCRIM No. 1215 correctly informs the jury that a substantial distance is one that is more than slight or trivial, and that contextual factors are to be considered “in addition to” the actual distance.
We reject defendant’s interpretation of CALCRIM No. 1215 as requiring the jury to consider contextual factors of the victim’s movement irrespective of the distance of the movement. In order to convict defendant of kidnapping, the jury must find that he moved the victim a “substantial distance.” (CALCRIM No. 1215.) In defining substantial distance, the jury is instructed to consider all aspects of the forced movement, including the distance. (CALCRIM No. 1215.) If the jury finds the actual distance to be slight or trivial, it need not look further and must conclude there was no kidnapping. However, if the jury finds the actual distance to be more than slight or trivial, then, “in addition to considering the actual distance moved, [it] may also consider other factors such as . . . 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.” (CALCRIM No. 1215, italics added.) Thus, the jury is instructed to consider the distance of the forced movement separate from the character of that movement.
The Martinez court wrote that consideration of factors other than actual distance “should apply in all cases involving simple kidnapping.” (Martinez, supra, 20 Cal.4th at p. 235.) It is true that the court observed that “contextual factors, whether singly or in combination, will not suffice to establish asportation if the movement is only a very short distance” (id. at p. 237), but the court did not imply that it would be improper, in such a case, for the jury to consider the contextual factors. Because it is never improper for a jury to consider the contextual factors, there was no requirement in this case that the trial court, sua sponte, modify the instruction.
We conclude that CALCRIM No. 1215 is in accord with the decision in Martinez.
C. The Prosecutor Correctly Argued the Instruction and Evidence on Asportation.
Defendant contends the prosecutor committed prejudicial misconduct and violated his due process rights by misstating the law, in closing argument, on the asportation element of kidnapping. He further adds that his objection to the prosecutor’s rebuttal statement was improperly overruled, because the prosecutor committed misconduct by misstating evidence that the arresting officers talked to people about defendant’s altercation with Doe and by improperly bolstering the officers’ credibility. Despite the lack of counsel’s objection on the alleged misstatement of law, we consider the issue on the merits because defendant also raises it under the rubric of ineffective assistance of counsel.
1. The Prosecutor Did Not Misstate the Law on Asportation.
It is misconduct for a prosecutor to misstate the law in closing argument. (People v. Hill (1998) 17 Cal.4th 800, 829-830.) Our review of the prosecutor’s closing argument shows that her statements were consistent with the Martinez decision and CALCRIM No. 1215. In closing argument, the prosecutor acknowledged that slight or trivial movement does not constitute kidnapping, but then proceeded to explain why defendant had moved Doe a substantial distance within the meaning of the law. She identified the contextual factors that the jury could consider and then pointed to the evidence of those factors. Because the prosecutor’s closing argument did not misstate the law pertaining to jury’s determination of asportation, we find no prosecutorial misconduct.
2. The Prosecutor Did Not Misstate the Evidence or Improperly Vouch for the Officers.
It is misconduct for a prosecutor to state facts not in evidence. (People v. Bolton (1979) 23 Cal.3d 208, 212-213.) During closing argument, defense counsel suggested that defendant’s interaction with Doe was but a “child custody issue” or a “brother/sister sort of thing,” and that his movement of her towards, and then into, his vehicle was “for her protection,” “to talk and calm her down.” The prosecutor refuted this suggestion during rebuttal argument when she referenced that Officer Baughman talked to the people who were in the area. Defense counsel objected on the grounds the prosecutor misstated the evidence. In response, the prosecutor clarified that the officer approached the people, but no one wanted to say anything. To the extent there was any misstatement of the evidence, the prosecutor clarified it. Therefore, we find no misconduct.
Regarding defendant’s assertion that the prosecutor improperly bolstered the officers’ testimony, we conclude that the prosecutor’s assurances of the officers’ honesty was based on the facts in the record and the inferences reasonably drawn therefrom. Defense counsel argued that the jury should question the officers’ credibility because Officer Jones first testified that the photograph of Doe’s face was taken 45 minutes after the incident, but on cross-examination he stated it was taken two hours after the incident; and Detective Baughman hesitated in answering the question as to whether he had talked to Officer Jones about the case.
On rebuttal, the prosecutor dismissed defense counsel’s attempt to impugn the officers’ integrity for talking about the case by explaining that that is what officers who work together do, “they talk about their cases.” The prosecutor argued that if “they wanted to collude, to make up, fabricate evidence,” she could “think of some stuff they should have come up with.” She later added: “If they wanted to make up evidence, it would have been really nice probably to hear what was being yelled between the two . . . . [¶] I won’t belabor that point. I believe you all can find both the officers are credible in their own accord. But there were some other points that I want to quickly touch on. . . . The evidence is just what you heard up there. It’s not what could have been, what could have happened, or what could have been said. I mean, the officers had so much integrity that although they knew they were watching a kidnapping, they left room in their minds for some explanation. [¶] So I see this plan kidnapping her, but perhaps it is a custody dispute and he is trying to make sure she doesn’t grab the kids or . . . maybe it is a citizen’s arrest, maybe at the house causing a ruckus, but they talk to people. . . .”
Considering each of the challenged comments by the prosecutor in context, we find no misconduct. We recognize that “[a] prosecutor is prohibited from vouching for the credibility of witnesses or otherwise bolstering the veracity of their testimony by referring to evidence outside the record. [Citations.] Nor is a prosecutor permitted to place the prestige of her office behind a witness by offering the impression that she has taken steps to assure a witness’s truthfulness at trial. [Citation.] However, so long as a prosecutor’s assurances regarding the apparent honesty or reliability of prosecution witnesses are based on the ‘facts of [the] record and the inferences reasonably drawn therefrom, rather than any purported personal knowledge or belief,’ her comments cannot be characterized as improper vouching. [Citations.]” (People v. Frye (1998) 18 Cal.4th 894, 971, overruled on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) Here, the prosecutor was not personally vouching for the credibility of either of the officers, putting the prestige of her office behind them or referring to evidence outside the record. Rather she was inviting the jury to consider the evidence that it heard from which it could infer that the officers were credible. Such argument was proper.
D. Ineffective Assistance of Counsel.
Defendant contends that his trial counsel rendered ineffective assistance by failing to object to CALCRIM No. 1215 concerning asportation and by failing to object to the prosecutor’s alleged misstatement of the law concerning asportation. A showing of ineffective assistance of counsel requires: (1) a showing that counsel’s performance was deficient, “in that it fell below an objective standard of reasonableness under prevailing professional norms” and (2) a showing of resulting prejudice. (People v. Mai (2013) 57 Cal.4th 986, 1009.) Because we have already concluded that CALCRIM No. 1215 correctly states the law on asportation and that there was no prosecutorial misconduct, we need not further consider this issue.
E. The Cumulative Error Doctrine Does Not Apply.
Defendant contends the cumulative impact of the foregoing alleged errors violated his right to a fair trial. Because we have found no error, there was no cumulative error. (People v. Myles (2012) 53 Cal.4th 1181, 1225.)
 

III. DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS


RAMIREZ
P. J.
We concur:

CODRINGTON
J.

SLOUGH
J.