Filed 3/20/18 P. v. Francis CA3
NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
THIRD APPELLATE DISTRICT
(San Joaquin)
----




THE PEOPLE,

Plaintiff and Respondent,

v.

RANDY HOWARD FRANCIS,

Defendant and Appellant.


C083849

(Super. Ct. No. CR20155970)


Following a jury trial, defendant Randy Howard Francis was convicted of first degree murder (Pen. Code, § 187), elder abuse (§ 368, subd. (b)(1)), criminal threats (§ 422), first degree robbery (§ 211), kidnapping (§ 207, subd. (a)), and carjacking (§ 215), along with enhancements for death resulting from great bodily injury (§ 12022.7, subd. (e)) and personal use of a weapon on a vulnerable victim (§§ 12022, subd. (b)(1), 667.9, subd. (a)). He was sentenced to serve a state prison term of 25 years to life plus seven years four months.
On appeal, defendant contends (1) the trial court’s denial of his motion to acquit on the kidnapping count violated due process because there was insufficient evidence to show movement inside the apartment, (2) the trial court erred in failing to instruct the jury on the lesser included offense of false imprisonment, (3) the trial court erroneously answered a jury question regarding provocation, and (4) the trial court erred in failing to stay sentence on three counts pursuant to section 654. We conclude (1) the trial court erred in denying the motion to acquit because there is insufficient evidence of asportation to support the kidnapping conviction, (2) any error regarding the response to the jury’s question regarding provocation was invited, and (3) there was no violation of section 654. We shall reverse the kidnapping count with directions to enter a judgment of acquittal on this count. In all other respects, the judgment is affirmed.
BACKGROUND
The Prosecution Case
In December 2014 or January 2015, defendant moved in with his mother. She later told defendant to move out, which he did in late February or early March 2015.
The apartment manager (Manager) knew mother and would shop or do other things for her. Manager saw mother at least every other day. Mother had balance problems and had not left her upstairs apartment for a year.
On March 14, 2015, defendant checked out of the Ivy Motel at 10:45 a.m. He told the motel manager he wanted to rent the room for another week, but had to get an unemployment check from his mother’s home. Defendant told the manager he would be back later in the evening to rent the room. Defendant left the motel riding a mountain bike and carrying a backpack. Around noon, defendant contacted manager to tell him mother’s phone was dead and she wanted manager to do some shopping for her.
Manager got groceries he had previously purchased for mother and went to her apartment to deliver them. He entered her apartment with his key and left the groceries in the kitchen. Manager saw defendant standing in the bedroom doorway holding a knife. Defendant said to manager, “Mom is dead. And you’re next if you don’t cooperate.” He told manager he needed the keys to manager’s truck, which manager, who was in fear for his safety, gave to defendant. Defendant asked for money. When manager gave $10, defendant said it was not enough, and asked for manager’s debit card, which manager surrendered.
Defendant ordered manager to lie face down on the floor. After manager complied, defendant, using Ziploc ties and electrical tape, tied manager’s hands behind his back, bound manager’s ankles together, and put a loveseat on manager’s back. He told manager he should count his blessings and to give defendant the PIN for the debit card. After manager complied, defendant told manager, “Okay. If this is not the correct number I’m going to come back and finish you off.” He showed manager an improvised shotgun and declared that they would not take him alive. Defendant told manager, “she might make it, but she won’t be living in these comfortable surroundings.” He also said, “This didn’t have to happen. If she would have given me her bedroom, none of this would have had to have happened.” Defendant left the apartment with a bag full of clothing and other items.
After defendant left, manager freed himself and went to a neighbor’s apartment, where he called 911. Manager determined his truck was gone and later learned $300 was withdrawn from his bank account.
At 2:39 p.m., emergency responders found mother lying on a bed and nonresponsive. She had bruising and ligature marks around her throat, an abrasion on her right forearm, and dried blood on her right ear. Mother had sustained impaired brain function and was connected to a ventilator. She died on May 22, 2015. The cause of death was asphyxia due to strangulation. It would take 3 to 10 minutes of compression to cause the ligatures she sustained.
Defendant checked into the Executive Lodge Inn in Stockton on March 14, 2015. Police searched the room three days later, and found a backpack containing multipurpose zip ties, a set of keys, duct tape, tools, and a written list. On March 26, 2015, defendant was found sleeping in a pickup truck at the Berkeley Marina. Manager’s debit card and a homemade shotgun were found in the truck.
The Defense
Defendant testified he was his mother’s paid caregiver. He moved into her apartment in December 2014 because she fell several times. She kept the temperature high in her apartment, which made sleeping there difficult for him. He wanted to move her bed to the dining room so he could sleep away from the heater. Mother told defendant to move out. He gave her his keys and left. Defendant saw his mother every day after he moved out as he was still her caretaker.
On the day of the incident, defendant went to his mother’s apartment at around lunchtime. He got her coffee, did the dishes, made the bed, and cleaned. He and mother got into an argument over where he was going to live. She suggested the Salvation Army, but defendant thought they would have no room. During the argument, mother admitted lying about telling defendant the protective services agency had him move out.
Defendant lost his temper because he had previously lost his inheritance and now lost his place to live. While his mother was sitting down watching television, he grabbed his mother’s dress and twisted it until his mother leaned over unconscious. Defendant carried mother to bed after she lost consciousness. He did not intend to kill her.
Defendant next went to manager’s apartment and told manager that mother needed him. When defendant returned to the apartment and saw manager, defendant told him, “I’ve hurt my mom, I need to get out of here, give me some money, give me your truck keys, I need your truck.” He may have had a knife in his hands when he said this to manager. Manager gave defendant the keys to his truck and handed over a little money. When defendant said he needed more money, manager gave defendant his debit card and PIN. Defendant asked manager how much money he could withdraw and manager told him $300.
Defendant instructed manager to lie down. After manager complied, defendant zip tied him and put a piece of duct tape over his mouth. He also used shoelaces to restrain manager. All three items, zip ties, duct tape, and shoelaces, were on defendant’s to-do list. He put a couch on manager so it would take longer for manager to get up after defendant left. After he left, defendant withdrew $300 from an ATM, went to eat, got some marijuana, and rented a motel room. He went to Berkeley the following morning.
Defendant removed the front plate from manager’s truck. On his to-do list he had written: “Get plate, get sticker, glue on plate,” “phone off,” “zip ties,” “duct tape,” “shoestrings,” “Get 1,” “Get 2,” “Get T,” “Change plates,” “Get M,” “Get PIN from 2,” “Get Card,” “Get dope,” “Get gun,” and, “Get shells.” He did not return to the Executive Lodge Inn because he knew the police were looking for him.
REBUTTAL
In June 2005, defendant told Ted Simmons he was going to kill his mother with an improvised shotgun that he then would use on the police, who would kill him.
DISCUSSION
I
Motion for Acquittal
Defendant contends the trial court violated his due process rights in denying his motion for acquittal on the kidnapping charge because there is insufficient evidence he moved manager a substantial distance. We conclude the trial court erred in denying the motion because there is insufficient evidence of asportation to support the kidnapping charge.
When ruling on a section 1118.1 motion, the trial court determines whether substantial evidence supports each element of the charged offense, as it stood at the time the motion is made. (People v. Cole (2004) 33 Cal.4th 1158, 1212-1213.) “A substantial evidence inquiry examines the record in the light most favorable to the judgment and upholds it if the record contains reasonable, credible evidence of solid value upon which a reasonable trier of fact could have relied in reaching the conclusion in question. Once such evidence is found, the substantial evidence test is satisfied. [Citation.]” (People v. Barnwell (2007) 41 Cal.4th 1038, 1052.) We review “independently a trial court’s ruling under section 1118.1 that the evidence is sufficient to support a conviction. [Citation.]” (Cole, at p. 1213.)
A defendant commits simple kidnapping if he or she “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.) Physical compulsion is not required. (People v. Majors (2004) 33 Cal.4th 321, 326-327.)
The distance of the forcible movement is not necessarily dispositive. (Cf. Martinez, supra, 20 Cal.4th at p. 233 [“ ‘there is no minimum number of feet a defendant must move a victim in order to satisfy’ ” the asportation element of aggravated kidnapping].) “[I]n determining whether the movement is ‘ “substantial in character” ’ [citation], the jury should consider the totality of the circumstances. Thus, in a case where the evidence permitted, the jury might properly consider not only the actual distance the victim is moved, but also 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.” (People v. Martinez (1999) 20 Cal.4th 225, 237.)
Here, defendant was armed with a knife, and after getting money and a debit card from manager, ordered him to the ground, where he bound his 71-year-old victim and the put a loveseat on him. Defendant then got manager’s PIN and left the apartment. However, manager was able to escape soon after defendant left the apartment and suffered no significant injury as a result of his temporary confinement. Based on these facts, we conclude the minimal distance of forcible movement is not sufficient evidence of asportation to support the kidnapping offense.
When an appellate court determines the trial court erroneously denied a motion to acquit, the remedy is to reverse and remand with directions to acquit. (See, e.g., People v. Belton (1979) 23 Cal.3d 516, 527; People v. Velasquez (2011) 201 Cal.App.4th 219, 231-232, 234.)
II
Jury Question Regarding Provocation
Additional Background
During deliberations, the jury sent a note to the trial court indicating it needed further explanation as to the meaning of CALCRIM Nos. 521 and 522. Over defendant’s objection, the trial court asked the jury to be more specific. The jury responded with two notes. The first note read, “CAMCRIM 522 If there’s indication of some provocation can the crime be considered first degree murder?” The second note asked:
“Under CALCRIM 521 for first degree murder ‘if he decided to kill before completing the act’ does the law define completing as the start of the act or the final process of the act? For example, I will complete this project today vs. I am in the process of completing this project right now.
“What does the sentence mean. Can we have a[] case law example: ‘The test is the extent of the reflections, not the length of time.”
The trial court discussed the notes with counsel outside the jury’s presence as follows:
“THE COURT: So we received two questions from the jury this morning, both dated today, the 13th of October, at 9:35 a.m. I have met with counsel and I have, with their advice, determined responses.
“Anything you’d like to add?
“[Defense counsel]: Yes.
“For the record, I basically indicated, um, that note number 1 talks about CAMCRIM 522, if there’s any indication of some provocation can the crime be considered first degree murder, that I feel that the entire language beginning on 5--in CALCRIM 570, beginning with heat of passion, the uh, three--if the Court is going to read any portion of it, that all three of these sentences need to be read in order that the jury understands what provocation means and how it is used. Um, I would also request that the--that they specifically be referred to 570 for the, um--or . . . for the language, so that they can have it in front of them and review it if they need to.
“THE COURT: Hmmm. So you’re saying a general reference to 570, and even if the Court chooses to remind them of the paragraph beginning with the words, ‘It is not enough.’ Is that what you’re saying?
“[Defense counsel]: Correct. So that if the Court is only going to read--the language, um, ‘Slight provocation is not enough’ or--I’m sorry, I don’t have it in front of me to be able to quote it directly, the language that the Court intended to read to them, that at the--if that’s all that’s going to be read, that they still be referred to the entire instruction for them to review the, uh--the definition of ‘provocation.’
“And I believe the Court was just going to refer them to the first instruction on the other--on the second note. And I didn’t have any objection to that part of it.
“THE COURT: Okay. Anything you’d like to add, counsel?
“[The prosecutor]: Yes, Your Honor.
“I feel that what the Court has already proposed is completely on point and completely appropriate because the jury’s note is specifically asking about provocation and can--how is that to be considered within first degree murder. So to point them out to the manslaughter, um, full instruction does not comport with their question and the People feel that, um, what the Court is giving them, um is completely on point with their question.”
The trial court then directed the jury’s attention to CALCRIM No. 570, the instruction for voluntary manslaughter, stating: “And within CALCRIM 570, the paragraph that begins ‘It is not enough’: [¶] It is not enough that the defendant simply was provoked. The defendant is not allowed to set up his own standard of conduct. You must decide whether the defendant was provoked and whether the provocation was sufficient. In deciding whether the provocation was sufficient, consider whether a person of average disposition in the same situation and knowing the same facts would have reacted from passion rather than from judgment.”
Analysis
Defendant contends the trial court violated his due process rights in answering the jury’s question about provocation in CALCRIM No. 522. His claim is based on the different definitions of the provocation used to reduce first degree murder to second degree murder and the provocation that reduces murder to voluntary manslaughter.
Heat of passion arising from provocation can negate premeditation and deliberation and reduce a murder from first to second degree. (People v. Hernandez (2010) 183 Cal.App.4th 1327, 1332.) The test for whether provocation reduces the degree of a murder is subjective. (People v. Jones (2014) 223 Cal.App.4th 995, 1000.) “The issue is whether the provocation precluded the defendant from deliberating. [Citation.] This requires a determination of the defendant’s subjective state.” (People v. Fitzpatrick (1992) 2 Cal.App.4th 1285, 1295.)
Heat of passion can also preclude the formation of malice aforethought and reduce an unlawful killing from murder to voluntary manslaughter. (People v. Beltran (2013) 56 Cal.4th 935, 942.) The heat of passion requirement for voluntary manslaughter has subjective and objective components. (People v. Steele (2002) 27 Cal.4th 1230, 1252.) “The defendant must actually, subjectively, kill under the heat of passion. [Citation.] But the circumstances giving rise to the heat of passion are also viewed objectively.” (Ibid.) The facts and circumstances must be sufficient to arouse the passions of an ordinarily reasonable person. (Id. at p. 1253.) “Heat of passion arises if, ‘ “at the time of the killing, the reason of the accused was obscured or disturbed by passion to such an extent as would cause the ordinarily reasonable person of average disposition to act rashly and without deliberation and reflection, and from such passion rather than from judgment.” ’ [Citation.]” (Beltran, at p. 942; see Steele, supra, 27 Cal.4th at pp. 1252-1255.)
Defendant asserts instructing the jury with the language defining heat of passion in the context of the voluntary manslaughter instruction in CALCRIM No. 570 violated his due process rights by erroneously instructing the jury it had to apply an objective standard to the heat of passion that reduced first degree murder to second degree murder.
“When a defense attorney makes a ‘conscious, deliberate tactical choice’ to [request or] forego a particular instruction, the invited error doctrine bars an argument on appeal that the instruction was [given or] omitted in error. [Citations.]” (People v. Wader (1993) 5 Cal.4th 610, 657-658.) “In cases involving an action affirmatively taken by defense counsel, we have found a clearly implied tactical purpose to be sufficient to invoke the invited error rule. [Citations.]” (People v. Coffman (2004) 34 Cal.4th 1, 49.)
Defendant’s trial counsel asked for the instruction given by the trial court. We can readily imply a tactical purpose in doing so. Defendant’s testimony that his mother lied to him about whether he had to stop living with her in her apartment was evidence of provocation. Counsel could reasonably conclude that instructing the jury with the voluntary manslaughter instruction reinforced that theory of provocation in the jury’s mind. Counsel could also decide additional instruction on the subjective variant of provocation in the context of first degree murder could needlessly confuse the jury, and a single definition of provocation gave her client the best chance. Accordingly, the invited error doctrine applies and defendant cannot challenge the instruction on appeal.
III
Section 654
The trial court imposed consecutive terms for the crimes against manager, criminal threats, robbery, kidnapping, and carjacking. Defendant contends section 654 required the trial court to stay three of the four terms.
Section 654 prohibits multiple punishments for offenses arising from a single act or an indivisible course of conduct. (People v. Latimer (1993) 5 Cal.4th 1203, 1208.) It provides: “An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision. An acquittal or conviction and sentence under any one bars a prosecution for the same act or omission under any other.” (§ 654, subd. (a).) “[T]he purpose of section 654 ‘is to insure that a defendant’s punishment will be commensurate with his [or her] culpability.’ [Citation.]” (Latimer, at p. 1211.)
“ ‘ “Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one.” ’ [Citation.]” (People v. Capistrano (2014) 59 Cal.4th 830, 885.) “If, on the other hand, in committing various criminal acts, the perpetrator acted with multiple criminal objectives that were independent of and not merely incidental to each other, then he [or she] may be punished for the independent violations committed in pursuit of each objective even though the violations were parts of an otherwise indivisible course of conduct. [Citation.]” (People v. Alvarado (2001) 87 Cal.App.4th 178, 196.)
“ ‘ “The defendant’s intent and objectives are factual questions for the trial court; [to permit multiple punishments,] there must be evidence to support [the] finding the defendant formed a separate intent and objective for each offense for which he [or she] was sentenced.” ’ [Citation.]” (People v. Capistrano, supra, 59 Cal.4th at p. 886.) We review the trial court’s determination regarding the applicability of section 654 for substantial evidence, and presume in support of the court’s conclusion, the existence of every fact the court could reasonably have deduced from the evidence. (People v. Jones (2002) 103 Cal.App.4th 1139, 1143.) When section 654 prohibits multiple punishments, the trial court must stay execution of sentence on the convictions that implicate multiple punishments. (People v. Correa (2012) 54 Cal.4th 331, 337.)
The evidence shows multiple objectives for each crime against manager. The criminal threat came at the beginning of defendant’s encounter with manager, when defendant told manager he had killed his mother and the same would happen to manager if manager did not cooperate with defendant. The threat was the first crime committed against manager. Defendant induced manager to come to the apartment so he could rob him in order to obtain money. Defendant, who rode a bicycle to the scene of the crimes, carjacked the truck to obtain motorized transportation. Based on the record, we conclude there was no violation of section 654.
DISPOSITION
The judgment as to the kidnapping count is reversed, and the trial court is directed to enter a judgment of acquittal on this count. In all other respects, the judgment is affirmed.



/s/
HOCH, J.



We concur:



/s/
ROBIE, Acting P. J.



/s/
RENNER, J.