P. v. Mora

Filed 4/17/07 P. v. Mora CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

APPEAL from a judgment of the Superior Court of Los Angeles County, Patricia M. Schnegg, Judge. Affirmed in part, reversed in part and remanded.

John F. Schuck, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorneys General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven D. Matthews and G. Tracey Letteau, Deputy Attorneys General, for Plaintiff and Respondent.

__________________________________

Luis Alfonso Mora was convicted after a jury trial on a variety of felony charges arising from his kidnapping and robbery of J. L. and H. S. and his sexual assault of H. S. On appeal Mora does not challenge his convictions for kidnapping J. L. with intent to commit robbery, two counts of robbery and sexual battery by restraint. However, he contends insufficient evidence supports his conviction for kidnapping with intent to commit rape; his conviction on the lesser included offenses of kidnapping and false imprisonment should be reversed; insufficient evidence supports the finding he used a firearm during the commission of the crimes; the prosecutor misstated the law regarding use of a firearm; the court erred in failing to instruct the jury sua sponte on voluntary intoxication; and the sentence imposed for false imprisonment should be stayed if it is not considered a lesser included offense of aggravated kidnapping. We affirm in part, reverse in part and remand for resentencing.

FACTUAL AND PROCEDURAL BACKGROUND

1. The Crimes Committed by Mora

J. L. and H. S., who were dating, were in front of H. S.s house in Los Angeles between 3:00 a.m. and 5:00 a.m on August 14, 2004. While H. S. was sitting in the passenger seat of J. L.s car and J. L. was standing outside the car smoking a cigarette, Mora approached J. L., pointed a black semiautomatic handgun at his head and asked him for money. After J. L. retrieved his wallet from the car and Mora learned it only had approximately $20 dollars in it, Mora, while threatening J. L. and H. S. with the gun, told them to give him all the stuff that he could turn into money. They gave Mora J. L.s cell phone and H. S.s ring, earrings, watch and cell phone.

Mora then got into the drivers seat of the car, J. L. into the passenger seat with H. S. They sat in the car while Mora pointed the gun at J. L. and H. S. and talked. Based upon how Mora was speaking, J. L. believed he was under the influence of drugs or alcohol. Mora eventually asked J. L. whether he had an automated teller machine card. When J. L. said he did, Mora ‑‑ still pointing the gun at J. L. and H. S. ‑‑ directed J. L. to get into the drivers seat, H. S. into the back seat and, after getting into the back seat with H. S., gave J. L. directions to the bank. Mora also said, [I]f you do something else, then Im going to shoot your girlfriend.

The bank had a drive-through automated teller machine. J. L. withdrew $120 and gave it to Mora. Mora told J. L. to drive back to the location where Mora had first confronted J. L. Before reaching the location, however, Mora said, I cant trust you, and told J. L. to stop the car; Mora made J. L. get into the cars trunk. H. S. then drove the car back to the original location. After she had parked, Mora began kissing and fondling H. S. H. S. attempted to fight back, but Mora slapped her check multiple times and continued to sexually assault her. While this was occurring J. L. managed to open the trunk and escape. When Mora saw the trunk lid open, he wiped the inside of the car with H. S.s jacket, left the car, ran to a car parked across the street, got in and drove away.

2. The Information

Mora was charged in a nine-count information with two counts of second degree robbery (Pen. Code, 211)[1](counts 1 (J. L.) and 2 (H. S.)); one count of kidnapping to commit robbery ( 209, subd. (b)(1)) (count 3 (J. L.)); one count of kidnapping ( 207, subd. (a)) (count 4 (H. S.)); one count of first degree robbery involving use of an automated teller machine ( 211, 212.5, subd. (b)) (count 5 (J. L.)); one count of false imprisonment ( 236 (count 6 (J. L.)); one count of kidnapping with intent to commit rape ( 209, subd. (b)(1)) (count 7 (H. S.)); one count of sexual battery by restraint ( 243.4, subd. (a)) (count 8 (H. S.)); and one count of assault with intent to commit a sexual offense ( 220) (count 9 (H. S.)). The information further alleged as to all counts Mora had personally used a firearm within the meaning of section 12022.53, subdivision (b). Mora pleaded not guilty and denied the special allegation.

3. The Trial, Jurys Verdict and Sentence

At trial Mora asserted a mistaken identity defense. An eyewitness identification expert testified regarding, among other things, the fallibility of the human memory and the difficulty of cross-racial identification. Dina Urquilla, the mother of three of Moras children, testified Mora was at his mothers house, where Urquilla was staying, at the time the crimes occurred. Urquilla also testified there was a restraining order barring Mora from his mothers house, although she claimed she was not certain if the restraining order was intended to bar all contact between Mora and Urquilla and the children.

The jury convicted Mora on all counts and found true the special allegation he used a firearm. Mora was sentenced to two consecutive terms of life with the possibility of parole (counts 3 and 7), plus a determinate term of 18 years, consisting of three years for robbery in count 1, one year for robbery in count 2, eight months for false imprisonment in count 6, 10 years for the firearm-use enhancement in count 1, and three years, four months for the firearm-use enhancement in count 2. Sentence as to the remaining counts and enhancements was ordered stayed.

DISCUSSION

1. The Evidence Was Insufficient to Convict Mora of Kidnapping with Intent To Commit Rape

To be convicted of kidnapping with the intent to commit another crime, the intent must be present when the kidnapping commences.[2] (People v. Laursen (1972) 8 Cal.3d 192, 198 [specific intention to commit target offense must be present at the time of the original asportation]; see People v. Tribble (1971) 4 Cal.3d 826, 831-832 [kidnapping without intent to rob constitutes kidnapping but not kidnapping for purpose of robbery; and a robbery during a kidnapping where the intent was formed after the asportation is a robbery and not a kidnapping for purposes of robbery]; People v. Shelburne (1980) 104 Cal.App.3d 737, 742-743 [notwithstanding substantial evidence defendant participated in kidnapping victim and robbing him, there was no credible evidence defendant intended to rob victim when he was taken]; cf. In re Alvarado (1972) 27 Cal.App.3d 610, 615 [modifying judgment to substitute simple kidnapping for aggravated kidnapping when intent to rob kidnapped victim was incidental to principal intent to commit sexual offense].)

Mora argues there is insufficient evidence he formed the specific intent to rape H. S. when the kidnapping commenced; H. S. was just along for the ride when he kidnapped J. L. with the intent to rob him, a conviction Mora does not challenge. Thus, Mora contends he can only be guilty of the simple kidnapping of H. S.[3] Conceding Mora did not form the intent to rape H. S. when Mora initially kidnapped J. L. and H. S., the People contend there were two, separate kidnappings: the first ended upon completion of the robbery; the second began immediately thereafter. The People argue there was substantial evidence Mora formed the intent to rape H. S. at the time the second kidnapping commenced.

A kidnapping, however, cannot be divided into discrete segments when there is a single abduction and the detention is continuous, as it was here. In People v. Thomas (1994) 26 Cal.App.4th 1328 (Thomas), relied upon by Mora, the victim, Jennifer M., was kidnapped at gunpoint as she approached her car in a mall parking structure. The defendant forced her into her car and, as he drove away, asked her how much money she had. After Jennifer M. gave the defendant her wallet with $35, the defendant demanded her automated teller machine card. Because she did not have it with her, the defendant drove Jennifer M. toward her apartment where she said she had the card. Before arriving at her apartment, however, the defendant parked the car and repeatedly raped Jennifer M. When they finally got to Jennifer M.s apartment, she called the police while the defendant waited in the car. (Id. at pp. 1331-1332.)

The defendant was convicted of, among other crimes, two counts of kidnapping with intent to commit robbery on the theory the first kidnapping began when the defendant abducted Jennifer M. at the mall, indicated he wanted money and took her wallet, money and credit cards. . . . [T]his kidnapping ended when he stopped the car, repeatedly raped the victim and forced her to engage in oral sex. [The defendant] committed a second kidnapping . . . when [he] drove Jennifer M. from the location of the sexual offenses to the Redondo Beach apartment, intending to rob her of her ATM card. (Thomas, supra, 26 Cal.App.4th at p. 1334.) The Court of Appeal disagreed, holding there was a single abduction, followed by a continuous period of detention. (Id. at p. 1335.) That [the defendant] may have changed his approach or focus as to the robbery, uttered a variety of threats to the victim, and engaged in other crimes after the initial abduction did not transform the offense into two kidnappings. (Ibid.)

The People contend Thomas, supra, 26 Cal.App.4th 1328 is not controlling because it was not just Moras focus or approach that changed upon completion of the robbery; rather his intent was completely transformed. When Mora initiated the detention of H. S., his only motivation was to rob J. L. at the automated teller machine. It was only after that robbery was completed that Mora formed the specific intent to rape H. S. The People may be correct Moras intent to rape H. S. was not formed until the completion of the robbery (and that it was, in fact, present when the second leg of the kidnapping began), but that does not change the fact there was only one abduction followed by a continuous detention, not two separate kidnappings.

The Peoples reliance on People v. Jackson (1998) 66 Cal.App.4th 182, in which the court reversed the defendants simple kidnapping conviction because it was a lesser included offense of kidnapping to commit sodomy or oral copulation and kidnapping to commit robbery, crimes for which the defendant was also convicted, is misplaced. Jackson does not stand for the proposition the People assert ‑‑ that the court necessarily found that the initial kidnapping did not determine the nature or intent of any continuing course of conduct. Rather, in holding the defendants conviction of a lesser included offense must be reversed, the court affirmed the principle in Thomas, supra, 26 Cal.App.4th 1328 pertinent here that the conduct of kidnapping . . . cannot be divided into separate incidents to permit multiple convictions. (Jackson, at p. 190.) The court was not confronted with the question when during the kidnapping the defendant formed the intent to commit robbery, oral copulation or sodomy. (Nolan v. City of Anaheim (2004) 33 Cal.4th 335, 343 [A decision, of course, does not stand for a proposition not considered by the court.].)

2. Moras Conviction for False Imprisonment Must Be Reversed, and the Stay of the Conviction for Simple Kidnapping Lifted

The People concede Mora was improperly convicted of false imprisonment of J. L., a lesser included offense of kidnapping with intent to commit robbery; thus that conviction must be reversed.[4] (People v. Greenberger (1997) 58 Cal.App.4th 298, 374.) In light of our holding insufficient evidence supports Moras conviction for kidnapping with intent to rape H. S., the stay of his conviction for the simple kidnapping of H. S., which Mora does not contest if we reverse the aggravated kidnapping charge, must be lifted.

3. Sufficient Evidence Supports the Use of a Firearm Enhancement

Mora contends the firearm-use enhancements under section 12022.53, subdivision (b), must be reversed because there was insufficient evidence the weapon he used during the crimes was real. Mora notes the gun was not presented at trial, no bullets were found and no witness described it in detail. (See 12001, subd. (b) [defining firearm as any device, designed to be used as a weapon, from which is expelled through a barrel a projectile by the force of any explosion or other form of combustion]; People v. Jackson (1979) 92 Cal.App.3d 899, 903, fn. 7 [toy gun does not qualify as firearm for 12022.53 use enhancement].)

The character of a weapon may be shown by circumstantial evidence, including testimonial descriptions of the weapon and its role in the commission of the crime. (See, e.g., People v. Dominguez (1995) 38 Cal.App.4th 410, 421 [victims testimony he felt a cold steel object pressed against him, coupled with defendants threat to kill the victim, constituted substantial evidence weapon used was a firearm]; cf. People v. Rodriguez (1999) 20 Cal.4th 1, 12-13 [defendants statements and behavior while making armed threat against victim may warrant jurys finding weapon was functional and loaded].)
Substantial evidence supports the jurys finding Mora used a real firearm during the commission of his crimes.[5] J. L. and H. S.s testimony established the gun was continually pointed at them at close range, giving them ample opportunity to observe it. J. L. testified he was familiar with guns because he had been in the army and identified the gun as a semi-automatic pistol. Mora threatened to shoot H. S. if J. L. did not drive to the automated teller machine and withdraw money. Although Mora was free to present evidence the gun used in the commission of the crimes was not a firearm within the meaning of section 12001, subdivision (b), in addition to asserting his defense of mistaken identity, there was ample evidence for the jury to find it was.

4. Mora Has Forfeited His Claim the Prosecutor Misstated the Law When He Argued the Gun Used by Mora Did Not Have To Be Real

Mora contends, and the People concede, the prosecutor committed misconduct when he erroneously stated in his closing argument regarding the firearm-use enhancement, it does not matter if the gun was real or not real. Moras counsel, however, did not object to the prosecutors comment or request the court admonish the jury to disregard the error.

A defendant cannot complain on appeal of error by a prosecutor unless he or she objected on the same ground in a timely fashion in the trial court and requested the jury be admonished to disregard the error. (People v. Jones (2003) 29 Cal.4th 1229, 1262; People v. Box (2000) 23 Cal.4th 1153, 1207; People v. Green (1980) 27 Cal.3d 1, 27-36.) The only exception is for cases in which a timelyobjection would have been futile or ineffective to cure the harm. (Green, at p. 34 [[T]he initial question to be decided in all cases in which a defendant complains of prosecutorial misconduct for the first time on appeal is whether a timely objection and admonition would have cured the harm. If it would, the contention must be rejected.].) Nothing in the record suggests an objection by Moras counsel would not have been sustained and followed immediately by an admonition to the jury to disregard the prosecutors remark or that this remedy would not have cured any prejudice. Accordingly, a timely objection was required; and Moras counsels failure to do so forfeits his claim of prosecutorial misconduct on appeal.

5. Moras Ineffective Assistance of Counsel Claim Fails Because He Has Not Demonstrated Prejudice as a Result of Counsels Failure to Object to the Prosecutors Misstatement of the Law

Recognizing the forfeiture problem, as an alternative to his claim of prosecutorial misconduct, Mora urges us to hold his counsels failure to object to the prosecutors misstatement of the law constituted ineffective assistance of counsel. To prevail on this claim, Mora must establish his counsels representation fell below an objective standard of reasonableness and there is a reasonable probability that, but for counsels deficient performance, the result of the trial would have been different. (Strickland v. Washington (1984) 466 U.S. 668, 686-687 [104 S. Ct. 2052, 80 L.Ed.2d] (Strickland ); People v. Williams (1997) 16 Cal.4th 153, 215.)

The burden of sustaining a charge of inadequate or ineffective representation is upon the defendant. The proof . . . must be a demonstrable reality and not a speculative matter. [Citation.] (People v. Karis (1988) 46 Cal.3d 612, 656.) There is a presumption the challenged action might be considered sound trial strategy under the circumstances. (Strickland, supra, 466 U.S. at pp. 689, 694; accord, People v. Dennis (1998) 17 Cal.4th 468, 541.) On a direct appeal a conviction will be reversed for ineffective assistance of counsel only when the record demonstrates there could have been no rational tactical purpose for counsels challenged act or omission. (People v. Lucas (1995) 12 Cal.4th 415, 442 [Reviewing courts reverse convictions on direct appeal on the ground of incompetence of counsel only if the record on appeal demonstrates there could be no rational tactical purpose for counsels omissions.]; People v. Mitcham (1992) 1 Cal.4th 1027, 1058 [If the record sheds no light on why counsel acted or failed to act in the manner challenged, unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation, [citation], the contention [that counsel provided ineffective assistance] must be rejected.].) [R]arely will the failure to object establish incompetence of counsel, because the decision whether to raise an objection is inherently tactical. (People v. Lewis (2001) 25 Cal.4th 610, 678.)

In considering a claim of ineffective assistance of counsel, it is not necessary to determine whether counsels performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies . . . . If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed. (In re Fields (1990) 51 Cal.3d 1063, 1079, quoting Strickland, supra, 466 U.S. at p. 697.) It is not sufficient to show the alleged errors may have had some conceivable effect on the trials outcome; the defendant must demonstrate a reasonable probability that absent the errors the result would have been different. (People v. Williams, supra, 16 Cal.4th at p. 215; People v. Ledesma (1987) 43 Cal.3d 171, 217-218; see People v. Mesa (2006) 144 Cal.App.4th 1000, 1008.)

In this case, even if Moras counsel had no valid tactical reason for failing to object to the prosecutors misstatement of the law and request an admonition,[6]Moras ineffective assistance of counsel claim must be rejected because he has failed to demonstrate a reasonable probability the outcome of his trial would have been different absent that error. The trial court properly instructed the jury on the elements of a firearm-use enhancement (CALJIC No. 17.19) and to follow the courts instructions on the law, even if they conflict with statements made by counsel (CALJIC No. 1.00). In conjunction with the fact there was no evidence or theory presented that the gun used by Mora was not real, there is simply no reasonable probability the outcome of Moras trial would have been different absent his counsels error.

6. The Trial Court Did Not Have a Duty To Instruct Sua Sponte on Voluntary Intoxication

Based upon J. L.s testimony Mora slurred his speech and appeared to be under the influence of drugs or alcohol, Mora contends the trial court erred in failing to instruct the jury sua sponte that voluntary intoxication may negate the specific intent required to commit robbery, aggravated kidnapping, sexual battery and assault with intent to commit rape.[7] (Presumably because he relied solely on a mistaken identification defense, Mora failed to request a voluntary intoxication instruction.) Acknowledging the California Supreme Court has held the trial court has no sua sponte duty to instruct the jury regarding voluntary intoxication (People v. Saille (1991) 54 Cal.3d 1103, 1117-1120), Mora nevertheless contends due process and fundamental fairness obligated the court to do so. (See People v. Giardino (2000) 82 Cal.App.4th 454, 465 [The trial court has a duty to help the jury understand the legal principles the jury is asked to apply.].)

Moras attempt to rely on generalized due process principles in the face of explicit Supreme Court authority rejecting his argument necessarily fails. [V]oluntary intoxication is proffered in an attempt to raise a doubt on an element of a crime which the prosecution must prove beyond a reasonable doubt. [Citation.] As such, the burden falls on the defendant to request a pinpoint instruction. [Citation.] [S]uch a pinpoint instruction does not involve a general principle of law as that term is used in the cases that have imposed a sua sponte duty of instruction on the trial court. [Citation.] (People v. San Nicolas (2004) 34 Cal.4th 614, 669; see People v. Wader (1993) 5 Cal.4th 610, 643 [notwithstanding there was some evidence from which jury could have inferred the defendant was intoxicated at the time of the crimes, defendant did not rely on voluntary intoxication as a defense to the specific intent crimes with which he was charged and a trial court has no duty to instruct on its own motion on voluntary intoxication].)

Moreover, a defendant is entitled to a pinpoint instruction on voluntary intoxication only when there is substantial evidence of the defendants voluntary intoxication and the intoxication affected the defendants actual formation of specific intent. (People v. Williams (1997) 16 Cal.4th 635, 677.) Although J. L.s testimony suggests Mora may have been under the influence of drugs or alcohol, there was no evidence Moras possible intoxication had any effect upon his ability to form the mental state necessary to commit the offenses. To the contrary, the evidence suggested Mora was well possessed of his faculties: Mora gave specific driving instructions to J. L.; attempted to avoid leaving fingerprints by wearing gloves; attempted to destroy any fingerprints he may have inadvertently left when he took off the gloves to sexually assault H. S. by wiping down the inside of the car with H. S.s jacket; and successfully fled the scene when he noticed J. L. had escaped from the trunk. (Cf. People v. Horton (1995) 11 Cal.4th 1068, 1119 [insufficient evidence warranting giving of voluntary intoxication instruction; manner in which the crimes were committed suggested planning and design rather than intoxication].) The record simply does not support the giving of a voluntary intoxication instruction.

DISPOSITION

The judgment is reversed with respect to the conviction on count 7 for kidnapping with intent to commit rape; and the matter is remanded for resentencing, including lifting the stay on the sentence as to count 4 for kidnapping. In all other respects, the judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

PERLUSS, P. J.

We concur:

WOODS, J. ZELON, J.

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[1] Statutory references are to the Penal Code.

[2] Section 209, subdivision (b)(1), states, Any person who kidnaps or carries away any individual to commit robbery, rape, spousal rape, oral copulation, sodomy, or any violation of Section 264.1, 288, or 289, shall be punished by imprisonment in the state prison for life with the possibility of parole.

[3] Section 207, subdivision (a), proscribing simple kidnapping, provides, 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.

[4] In light of our reversal of Moras conviction for false imprisonment, we need not address Moras contention the sentence imposed for that offense should be stayed.

[5] To be substantial, evidence need only be of ponderable legal significance, . . . reasonable, credible and of solid value. (Roddenberry v. Roddenberry (1996) 44 Cal.App.4th 634, 651.)

[6] Although we need not decide the issue, Moras counsel may well have made a tactical choice not to highlight the prosecutors misstatement of the law inasmuch as Moras only defense was mistaken identity.

[7] Mora contends the court should have instructed the jury with CALJIC Nos. 4.21 (Voluntary Intoxication ‑‑ When Relevant to Specific Intent) and 4.21.1 (Voluntary Intoxication ‑‑ Trial With General and Specific Intent Crimes).