Filed 10/29/18 P. v. Chavez CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Charles G. Rogers, Judge. Affirmed.

Christine M. Aros, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Teresa Torreblanca, Deputy Attorneys General, for Plaintiff and Respondent.

A jury convicted Sarah Chavez of kidnapping after she drove erratically and would not let her mother (Mother) out of the car. The trial court sentenced her to seven years in prison. On appeal, Chavez challenges the sufficiency of the evidence supporting the jury's findings that Mother did not consent to being moved, and that Chavez did not actually and reasonably believe Mother consented to being moved. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND[1]

Factual Background

On April 9, 2017, 54-year-old Mother arranged to drive 36-year-old Chavez from El Cajon to Orange County, where Chavez's belongings were being kept in a storage unit while she was in jail. Chavez was angry that Mother had not picked her up from jail upon her release a few days earlier, leaving Chavez to live "on the streets" in the interim.

Mother arrived at the designated meeting spot around 2:00 p.m. in a sedan she and Chavez jointly leased. Mother got out of the car to hug Chavez, but Chavez brushed past her and got in the driver's seat. Mother told Chavez not to drive because she (Chavez) was still attending DUI classes, but Chavez responded, "You can't tell me I can't drive." Mother got in the front passenger seat, and they drove off.

As they traveled, Chavez began to express her anger at Mother for not picking her up from jail. Mother explained she had been on vacation and could not come back just to pick up Chavez. "[F]rom there, it just got worse and worse," as Chavez's conduct "escalated." Her driving had been "fine up to that point," but then "it got more reckless and scary." Mother became "scared and a little nervous," and told Chavez, "You need to pull over and let me out." Chavez responded, "No, Mom, don't get out," and grabbed Mother's arm "[n]ot in a violent way[,] but in a very sad please-don't-get-out-of-the-car-Mom way."

Mother described what happened next at the Mast Boulevard exit from State Route 52: Chavez "was kind of crying. And then something happened and . . . we got off on an off-ramp like she was going to let me out, but she didn't want me to get out; and the light turned green, but she was—I don't know if it was in a daze. I don't know how to describe it. [¶] But it was very still. And I said, 'It's okay. Just go through the light. Go through the light,' because I didn't know what was happening. But when we got on the other side of the light back on the freeway to go on the off-ramp [sic], a real anger came out of her, a real anger. She started cussing and she jerked the steering wheel, pushed the gas pedal and from there it just got worse."

Chavez swerved across the freeway, staring at Mother instead of the road. She called Mother a "fucking bitch" and a "liar," and screamed, "You weren't there to pick me up." Mother was scared and tried to calm Chavez down, but nothing was working. When Chavez saw Mother holding a cellphone, she became even angrier because she thought Mother was recording her.

Mother decided she needed to get the car to the side of the freeway so she could get out. As the car headed uphill toward the summit of State Route 52 between Mast Boulevard and Santo Road, Mother grabbed the gear shifter to put the car in neutral. Mother and Chavez fought over control of the shifter, but Mother managed to use both hands to put the car in neutral. As the car quickly began to slow down in a traffic lane, Mother realized the situation was hazardous and that she needed to steer the car to the shoulder.

Mother and Chavez struggled over control of the steering wheel. Chavez punched Mother several times in the head and face, and attempted to bite her hand. Mother tried a ruse to get Chavez to pull over, telling her, "There are cops behind us. Just pull over." The ruse did not work. Eventually, Mother was able to steer to the car to the shoulder, put the transmission in park, and turn off the engine. "There was a little more scuffle in the car" as Mother unsuccessfully tried to remove the key from the ignition.

Mother grabbed her purse and opened the car door to get out. As Mother exited, Chavez started the car and began accelerating. Unbeknownst to Chavez, Mother's arm was caught in the seatbelt and she was dragged on the pavement for about 30 feet. Mother screamed Chavez's name repeatedly to get her attention. Chavez stopped long enough for Mother to free her arm from the seatbelt, then drove off.

Good Samaritans called 911 and attended to Mother on the freeway shoulder until California Highway Patrol (CHP) and medical personnel arrived. Mother had "[v]ery severe road rash" on the "backside" of her body, and her arm "was very enlarged from the seat belt." She was transported by ambulance to a hospital trauma unit, where she was admitted and stayed for two days.

Procedural Background

Chavez was charged with kidnapping (Pen. Code,[2] § 207, subd. (a)) and assault with a deadly weapon (§ 245, subd. (a)(1)). As to both counts, it was alleged that Chavez personally inflicted great bodily injury on Mother. (§§ 12022.7, subd. (a), 1192.7, subd. (c)(8).) It was further alleged Chavez had four prison priors. (§§ 667.5, subd. (b), 668.)

The jury found Chavez guilty of kidnapping and found the great-bodily-injury allegation not true. The jury was unable to reach a verdict on the assault count, so the trial court declared a mistrial and ultimately granted the prosecutor's motion to dismiss the count. Chavez admitted the four prison priors.

The trial court sentenced Chavez to the midterm of five years on the kidnapping conviction, plus two additional one-year terms for two of the prison priors (the court struck the other two), for a total prison term of seven years.

DISCUSSION

To prove the crime of kidnapping under section 207, subdivision (a), the prosecution bears the burden of establishing the following elements: (1) the defendant unlawfully moved a person by use of physical force or by instilling reasonable fear; (2) the movement was for a substantial distance; (3) the person did not consent to the movement; and (4) the defendant did not actually or reasonably believe that the other person consented to the movement. (See People v. Burney (2009) 47 Cal.4th 203, 232; People v. Eid (2010) 187 Cal.App.4th 859, 878; CALCRIM No. 1215; § 207, subd. (a).)[3] Chavez contends the third and fourth elements (the victim's consent and the defendant's belief in consent, respectively) are not supported by substantial evidence. We disagree.

• • A. Background

The trial court instructed the jury on the elements of kidnapping with CALCRIM No. 1215, which states in pertinent part:

"To prove that the defendant is guilty of [kidnapping], the People must prove that:

"1. The defendant took, held, or detained another person by using force or by instilling reasonable fear;

"2. Using that force or fear, the defendant moved the other person or made the other person move a substantial distance;

"3. The other person did not consent to the movement[;] [¶] [AND]

"4. The defendant did not actually and reasonably believe that the other person consented to the movement.

"In order to consent, a person must act freely and voluntarily and know the nature of the act. [¶] . . . [¶]

"The defendant is not guilty of kidnapping if she reasonably and actually believed that the other person consented to the movement. The People have the burden of proving beyond a reasonable doubt that the defendant did not reasonably and actually believe that the other person consented to the movement. If the People have not met this burden, you must find the defendant not guilty of this crime.

"The defendant is not guilty of kidnapping if the other person consented to go with the defendant. The other person consented if she (1) freely and voluntarily agreed to go with or be moved by the defendant, (2) was aware of the movement, and (3) had sufficient maturity and understanding to choose to go with the defendant. The People have the burden of proving beyond a reasonable doubt that the other person did not consent to go with the defendant. If the People have not met this burden, you must find the defendant not guilty of this crime.

"Consent may be withdrawn. If, at first, a person agreed to go with the defendant, that consent ended if the person changed his or her mind and no longer freely and voluntarily agreed to go with or be moved by the defendant. The defendant is guilty of kidnapping if after the other person withdrew consent, the defendant committed the crime as I have defined it."

In closing argument, the prosecutor acknowledged Mother initially consented to being moved by Chavez. The prosecutor argued the kidnapping began when Mother "withdrew her consent . . . the moment that [she] said, 'Let me out of the car,' the moment that . . . Chavez did not let her." The prosecutor asserted Mother did not reinstate her consent at the offramp intersection by telling Chavez to drive through it. The prosecutor reasoned that Mother's alternative—getting out of the stopped car at an intersection with a green light—was "a worse consequence" than remaining in the car. And even if this did constitute a reinstatement of Mother's consent, the prosecutor argued Mother promptly re-withdrew it, as evidenced by "the extreme measures that [she] felt she needed to take to get out of the car. Asking wasn't enough."

Chavez's trial counsel argued in closing that Mother never withdrew her consent to travel with Chavez. When Mother asked to be let out, Chavez exited the freeway. And at the offramp intersection, Chavez complied with Mother's direction to " '[g]o through the intersection,' " which led back to the freeway. Counsel asserted that even though "they fought after that, . . . there were no demands to let her out after that." Counsel thus maintained that Mother either consented to remaining in the car, or Chavez actually and reasonably believed she had done so.

• • B. Standard of Review

" 'When considering a challenge to the sufficiency of the evidence to support a conviction, we review the entire record in the light most favorable to the judgment to determine whether it contains 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. [Citation.] We presume in support of the judgment the existence of every fact the trier of fact reasonably could infer from the evidence. [Citation.] If the circumstances reasonably justify the trier of fact's findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding. [Citation.] A reviewing court neither reweighs evidence nor reevaluates a witness's credibility.' " (People v. Covarrubias (2016) 1 Cal.5th 838, 890.)

• • C. Analysis

Substantial evidence supports Chavez's conviction. Although Mother initially consented to traveling with Chavez, Mother unequivocally withdrew her consent when she told Chavez, "You need to pull over and let me out." (See People v. La Salle (1980) 103 Cal.App.3d 139, 146 ["even had the initial entry into the car been voluntary, the act became a kidnaping by force when defendant refused to allow [the victim] and her daughter to get out of the car"]; People v. Camden (1976) 16 Cal.3d 808, 814 [" '[W]here the victim has at first willingly accompanied the accused, the latter may nevertheless be guilty of kidnaping if he subsequently restrains his victim's liberty by force and compels the victim to accompany him further.' "].)[4]

The jury was not required to accept Chavez's argument that Mother reinstated her consent to remain in the car by directing Chavez to drive through the offramp intersection. To the contrary, as the prosecutor suggested, the jury could have reasonably inferred from Mother's testimony that it would have been unsafe for her to exit the car while at an intersection with a green light. The jury could have reasonably construed Mother's instruction as merely requesting that she be set free at a safer location across the intersection.

Nor was the jury required to accept that Chavez actually and reasonably believed that Mother's direction to drive through the intersection constituted a reinstatement of her consent. As Mother testified, Chavez appeared to be "in a daze" at the intersection, and her behavior worsened on the other side of it. The jury could reasonably have concluded Chavez was processing her own state of mind, not Mother's.

Even if Mother reinstated her consent at the offramp intersection, substantial evidence supports the finding that she re-withdrew it when Chavez got back on the freeway and resumed driving and behaving erratically. Although Mother may not have made another oral request to be set free, it is reasonably inferable from her conduct—telling Chavez the police were behind her, struggling to put the car in neutral, and struggling to steer the car to the shoulder—that she no longer consented to traveling with Chavez. (See People v. Sattiewhite (2014) 59 Cal.4th 446, 476-477 [victim's "attitude" relevant to determining consent].) Chavez forcibly resisted Mother's efforts to free herself by repeatedly punching Mother in the head and face, and by attempting to bite her hand. The jury could reasonably have found that Mother withdrew her consent, and that it would have been unreasonable for Chavez to conclude otherwise.

DISPOSITION

Affirmed.

HALLER, J.

WE CONCUR:

BENKE, Acting P. J.

HUFFMAN, J.