People v. ChaconPeople v. Chacon
OPINION
California Youth Authority inmates Freddie Chacon and Raul Alberto Lopez kidnapped a librarian during an attempted escape. They inflicted “bodily harm” and exposed her to a “substantial likelihood of death.” Appellants were apprehended, convicted, and sentenced to state prison for life without the possibility of parole.
The amended information charged appellants with escape by means of force and violence (count I;
Appellants entered pleas of not guilty, denied the special allegations, and waived jury trial. The matter was submitted on the preliminary hearing transcript and exhibits. The trial court found appellants guilty as charged and found the special allegations to be true.
As to the aggravated kidnapping (count V), the trial court found that the victim suffered “bodily harm” and was confined in a manner exposing her to a “substantial likelihood of death.” (
Appellants were also sentenced to a determinate term of nine years. The trial court selected count I (escape by means of force and violence) as the principal offense and imposed an upper term of six years. As to counts II (assault with a deadly weapon), III (assault with a deadly weapon), and count IV (extortion), it imposed a one-year consecutive term for each count (one-third the midterm) and stayed the one-year weapon enhancement for count IV. (
Pursuant to
Appellants contend that (1) the life without parole sentence for aggravated kidnapping is cruel or unusual punishment, (2) insufficient evidence was presented that the kidnap victim suffered “bodily harm” within the meaning of
We vacate the convictions for attempted kidnapping and false imprisonment (counts VII & VIII), stay the sentences for escape, assault with a deadly weapon, and extortion (counts I, II, & IV) pursuant to
Facts
On September 17, 1993, appellants were confined at El Paso de Robles, a youth authority facility in Paso Robles. Jerry Oliver, a group supervisor, observed appellants break from a group of wards, run to the library, and punch the librarian, Ava Goldman, in the face. Lopez put his arm around Goldman‘s neck and dragged her inside where he held a sharpened metal shank to her neck.2
Roy Victorino, a vocational landscape instructor, tried to rescue Goldman. Lopez swung at him with the shank. Victorino deflected the blow and sustained a puncture wound to his stomach and a cut on his wrist. Lopez put the shank against Goldman‘s neck and yelled, “back off or I‘ll kill her!”
Chacon ran back and forth to the front door, screaming that they wanted the “Officer of the Day‘s” pickup truck. Chacon threatened to “kill the bitch” if the truck was not delivered. When staff members tried to talk to Chacon, Lopez applied pressure to Goldman‘s neck, causing her to pass out a second time. Chacon ran over to Goldman and stabbed her in the stomach with a shank. Appellants threatened to “kill the bitch” if the truck was not delivered. Chacon held the shank to Goldman‘s right eye and started a countdown from 10.
The “Officer of the Day,” Lieutenant John Barrett, directed Jerry Oliver to park the truck in front of the library. Appellants dragged Goldman to the truck. Lopez kept his arm around her neck and held the shank to her head. Appellants screamed and hollered, “[b]etter not do anything to the truck or do anything with us or we‘re going to kill the bitch.”
Goldman sat in the middle of the truck cab with Lopez on the passenger side. Lopez continued to hold Goldman around the neck. Chacon got behind the wheel, accelerated full throttle, and spun the tires. Chacon steered the
Goldman woke up facedown, yelling “ow, ow, I hurt, I hurt, my face, my face, my eyes, my eyes, my back, my back.” Mace was in her eyes and coming out her mouth. An ambulance transported her to the hospital where she was treated for a cut on the right eyelid, bruises, multiple contusions, and a right arm sprain. As a result of this attack, Goldman was unable to work from September 17, 1993, to November 29, 1993.
Aggravated Kidnap: Bodily Harm
(1a) Appellants contend that insufficient evidence was presented to support the finding that Goldman suffered “bodily harm” within the meaning of
In People v. Schoenfeld (1980) 111 Cal.App.3d 671 [168 Cal.Rptr. 762], the defendants pled guilty to 27 counts of kidnapping for ransom after abducting a busload of schoolchildren from Chowchilla. The trial court found that three of the victims suffered “bodily harm” and imposed a sentence of life without parole. The bodily harm consisted of a nosebleed (not caused by the defendant), fainting spells, nausea and stomachache. (Id., at p. 690.) (2) The Court of Appeal reversed and held that “bodily harm,” for purposes of aggravated kidnapping for ransom, required “1) a substantial or serious injury to the body of the kidnaped victim, 2) by application of a physical force, 3) beyond that necessarily involved in the forcible kidnapping. [Citations.]” (Id., at page 685.)3
Appellants argue that “bodily harm” requires broken bones or injuries necessitating surgery. We disagree. Whether “bodily harm” has been suffered is a factual question to be decided by the trier of fact. We review
(1b) Here, appellants hit Goldman in the face, choked her unconscious, stabbed her in the stomach, cut her on the right eyelid, and inflicted severe bruises and contusions to her right arm, leg, hip, ankles, and back. Appellants poked, cut, and scratched the victim with shanks made from rusty landscape nails. The injuries included a nine-inch scratch from the bottom of her throat to her right ear. Goldman testified that she could hardly walk after the incident and that her right arm was badly sprained. Goldman was treated at a hospital and missed 10 weeks of work. She recovered use of the right arm about a week after the incident.
The trial court factually found that “Ms. Goldman did suffer bodily harm. . . . It appears to me Ms. Goldman suffered bruising and severe bruising. She suffered what, in my opinion, were severe abrasions; that she suffered swelling; that she suffered unconsciousness on at least two occasions. And . . . that is a bodily injury, in this court‘s mind. [¶] She suffered sprains. It‘s common knowledge that sprains can actually be more severe than broken bones. And it‘s this court‘s experience that some cuts requiring sutures can cause less discomfort than the sorts of injuries that were received by Ms. Goldman as a direct result of these defendants.”
The injuries suffered meet the three-prong test articulated in People v. Schoenfeld, supra, 111 Cal.App.3d at page 685. Substantial evidence supports the trial court‘s factual determination. (E.g., People v. Rayford (1994) 9 Cal.4th 1, 23 [36 Cal.Rptr.2d 317, 884 P.2d 1369].) We cannot say that the injuries inflicted on Goldman were “trivial.” (People v. Jackson (1955) 44 Cal.2d 511, 517 [282 P.2d 898]; People v. Gilbert (1965) 63 Cal.2d 690, 711 [47 Cal.Rptr. 909, 408 P.2d 365].)
Appellant Lopez argues that the trial court erred in considering the victim‘s cumulative injuries because the kidnapping was complete once the pickup was delivered. We disagree. “[F]orcible detention of a victim is an element of kidnapping and as long as the detention continues, the crime continues. [Citation.]” (People v. Masten (1982) 137 Cal.App.3d 579, 588 [187 Cal.Rptr. 515]; see also People v. Thomas (1994) 26 Cal.App.4th 1328, 1335 [32 Cal.Rptr.2d 177] [abduction followed by continuous period of detention]; People v. Dacy (1970) 5 Cal.App.3d 216, 219 [85 Cal.Rptr. 57] [kidnap for ransom began with entry into victim‘s house and ended in high-speed chase]; and People v. Reed (1969) 270 Cal.App.2d 37, 49-50 [75 Cal.Rptr. 430] [kidnap ended after police rescue].)
Appellants’ reliance on People v. Wiley (1994) 25 Cal.App.4th 159 [30 Cal.Rptr.2d 701], People v. Beaumaster (1971) 17 Cal.App.3d 996 [95 Cal.Rptr. 360], and People v. Thomas (1970) 3 Cal.App.3d 859 [83 Cal.Rptr. 879] does not compel a different result. There, the defendants committed a robbery or kidnapping, and after the crimes were completed, committed additional offenses. The courts held that the crimes were separate and distinct offenses. (People v. Wiley, supra, 25 Cal.App.4th at p. 163 [kidnapping for robbery terminated before detention for extortion]; People v. Beaumaster, supra, 17 Cal.App.3d at pp. 1008-1009 [robbery, then kidnap for robbery, followed by forcible oral copulation]; People v. Thomas, supra, 3 Cal.App.3d at pp. 866-867 [robbery, attempted robbery, and kidnap for robbery completed before defendant sexually molested the same victims].)
Aggravated Kidnap: Substantial Likelihood of Death
(3) Appellants also contend that insufficient evidence was presented that they intentionally confined Goldman in a manner that exposed her to a “substantial likelihood of death.” The argument lacks merit. Before the truck was delivered, appellants choked Goldman unconscious, stabbed her in the stomach, and severely bruised and sprained her right arm. The method of confinement and appellants’ use of Goldman as a hostage exposed her to a substantial risk of death.
The trial court also found that the escape in the truck posed a substantial risk of death because it could have led to a high speed pursuit. This was not impermissible speculation. The Legislature‘s choice of the word “likelihood” allows and requires the trier of fact to draw reasonable inferences in determining whether the victim was exposed to a substantial likelihood of death.
Forced movement of the victim is not an element of kidnapping for ransom. (People v. MacInnes (1973) 30 Cal.App.3d 838, 844 [106 Cal.Rptr. 589]; People v. Rayford, supra, 9 Cal.4th 1, 12, fn 8.) Intentional movement of the victim may create a substantial risk of death. (E.g., People v. Smith (1992) 18 Cal.App.4th 1192, 1196 [27 Cal.Rptr.2d 20] [victim forced to accompany defendants on two- to three-block drive]; People v. Daniels (1988) 202 Cal.App.3d 671, 683 [248 Cal.Rptr. 753] [three- to four-block movement]; In re Earley (1975) 14 Cal.3d 122, 130 [120 Cal.Rptr. 881, 534 P.2d 721] [one-block movement].)
Here, after appellants dragged Goldman to the truck, and sped away from the library, the truck ran into a tree. The force of the impact broke the windshield, jammed the doors shut, and collapsed the steering wheel. The
Extortion
(4a) Appellant Chacon argues that the prosecution failed to prove extortion because the delivery of the pickup was not an “official act.” The contention is without merit. “Extortion” is defined in
Appellants were not convicted of extorting an “official act.”4 The trial court found Lieutenant Barrett furnished the pickup truck “because of the force, fear, and threat being used against Ms. Goldman.”
Appellants’ reliance on People v. Norris, supra, 40 Cal.3d 51 is misplaced. There, the defendant, a prisoner, was transported by two police officers from prison to county jail. Norris brandished a revolver and ordered the officers to drive him to San Francisco. The officers escaped from the car and Norris was captured. Norris was convicted of aggravated kidnapping for extortion of an official act and sentenced to life in prison without the possibility of parole. The Supreme Court reversed on the ground that the demand to be driven to San Francisco was not extortion. “[T]hreats or demands cannot be converted into extortion [of an official act] merely because the person threatened happens to be an on-duty law enforcement officer.” (Id., at p. 56.) The case is distinguishable and not controlling here.
(4b) Chacon finally asserts that the demand for the truck was robbery, not extortion. He cites People v. Martinez (1984) 150 Cal.App.3d 579 [198 Cal.Rptr. 565] for the rule that the confinement of a victim incidental to a robbery does not support a conviction for aggravated kidnap. The argument lacks merit. Robbery and extortion are not the same. “[T]he two crimes are distinguished by the fact that in extortion the property is taken with the victim‘s consent whereas in robbery it is taken against his will.” (In re Stanley E. (1978) 81 Cal.App.3d 415, 420 [146 Cal.Rptr. 232].) If the ransom demand is made on a person other than the kidnap victim, there is no robbery. The kidnapping for ransom statute applies “. . . to those situations involving a primary and secondary victim, where one of the victims is held or taken away and the other is subjected to a ransom or extortion demand.” (People v. Martinez, supra, 150 Cal.App.3d at p. 591.)
Cruel or Unusual Punishment
(6a) Appellants contend that the sentence of life without possibility of parole is, “on its face” and “as applied,” cruel or unusual punishment.
(7) On review, appellants have the burden of showing that the punishment prescribed is unconstitutional. (People v. Wingo (1975) 14 Cal.3d 169, 174 [121 Cal.Rptr. 97, 534 P.2d 1001].) “A tripartite test has been established to determine whether a penalty offends the prohibition against cruel . . . [or] unusual punishment. First, courts examine the nature of the offense and the offender, ‘with particular regard to the degree of danger both present to society.’ Second, a comparison is made of the challenged penalty with those imposed in the same jurisdiction for more serious crimes. Third, the challenged penalty is compared with those imposed for the same offense in other jurisdictions. [Citations.] In undertaking this three-part analysis, we consider the ‘totality of the circumstances’ surrounding the commission of the offense. [Citations.]” (People v. King (1993) 16 Cal.App.4th 567, 572 [20 Cal.Rptr.2d 220].)
People v. Castillo, supra, 233 Cal.App.3d 36 is illustrative and dispositive. “‘The selection of a proper penalty for a criminal offense is a legislative function involving an appraisal of the evils to be corrected, the weighing of practical alternatives, and consideration of relevant policy factors and responsiveness to the public will.’ [Citation.] This broad legislative discretion is subject to constitutional limitation, but given the long-standing, even ancient, horror of kidnapping [citation] and the substantial risk to human life that it presents [citation], we [conclude] that the punishment [on its face] is not excessive.” (Id., at p. 66, citing People v. Ordonez, supra, 226 Cal.App.3d at pp. 1236-1237.)
Nor is the punishment cruel or unusual as applied to appellants. Aggravated kidnapping for ransom involves an inherent danger to the life of the victim. “Because it is the Legislature which determines [the] appropriate penalty for criminal offenses, the defendant must overcome a ‘considerable burden’ in convincing us that his sentence was disproportionate to his level of culpability. [Citation.]” (People v. Weddle (1991) 1 Cal.App.4th 1190, 1196-1197 [2 Cal.Rptr.2d 714].)
Here, the sentence was lawfully predicated on the heinous nature of the crime and appellants’ individualized culpability. Appellants planned the escape and selected Goldman as the kidnap victim because she was small and vulnerable. They threatened to kill her, choked her unconscious, inflicted bodily harm, and exposed her to a substantial risk of death. The sentence of life without possibility of parole is not disproportionate to this crime when measured against appellants’ individualized culpability.5
On its face and as applied, the sentences of life without the possibility of parole are not cruel or unusual punishment under the California or federal Constitution. (
Appellants meritoriously contend that the convictions for attempted kidnapping and false imprisonment (counts VII & VIII) should be vacated because they are lesser-included offenses of kidnapping for ransom. (People v. Magana (1991) 230 Cal.App.3d 1117, 1120-1121 [281 Cal.Rptr. 338] [false imprisonment lesser-offense of kidnapping]; People v. Daly (1992) 8 Cal.App.4th 47, 57 [10 Cal.Rptr.2d 21] [attempted kidnapping a lesser included offense of kidnapping].) Respondent concedes the point. The convictions for attempted kidnapping and false imprisonment (counts VII and VIII) are vacated.
Section 654
(8) Appellants contend that the sentence for aggravated kidnapping, extortion, escape by force and violence, and assault with a deadly weapon constitutes impermissible multiple punishment.
In In re McCoy (1968) 266 Cal.App.2d 739 [72 Cal.Rptr. 373], an inmate at San Quentin broke into a home on the prison grounds, brandished a knife, tied up a woman, and took cash, clothes, and the family automobile. McCoy escaped but was later apprehended. The Court of Appeal held that the robbery was part of and intended to consummate the escape. Applying
The same principle applies here. The kidnap for ransom, extortion, and escape were part of an indivisible transaction having a single objective: escape.7 We conclude that
The sentences for assault with a deadly weapon (counts II and III) require a different analysis. In count II, appellants were charged with assaulting Goldman. The evidence was uncontroverted that Lopez held a shank to Goldman‘s neck and choked her unconscious. Chacon ran up to Goldman and stabbed her in the stomach. Relying on cases such as People v. Nguyen (1988) 204 Cal.App.3d 181, 190-191 [251 Cal.Rptr. 40], the Attorney General claims that these assaults were gratuitous and unnecessary acts of violence and not incidental to the kidnap. As to Goldman, we cannot agree. The acts of violence upon her, while atrocious, were committed to get the attention of Lieutenant Barrett so that he would supply the truck. The aggravated kidnap was ongoing. The sentence on count II must be stayed.
Appellants were also convicted of assaulting Roy Victorino with a deadly weapon. (Count III.) When Victorino attempted to rescue Goldman, Lopez took a swing at him. Victorino warded this blow but was stabbed in the stomach.
Even though the defendant entertains a single principal objective during an indivisible course of conduct, he may be convicted and punished for each crime of violence against a different victim. (People v. Miller (1977) 18 Cal.3d 873, 885 [135 Cal.Rptr. 654, 558 P.2d 552].) “The purpose of
Consecutive Sentence
(9) Appellants finally argue that the trial court erred in ordering the determinate sentence to run consecutive to the life without possibility against parole sentence. The trial court found that consecutive sentences were appropriate because the crimes involved separate acts of violence or threats of violence of separate victims. (Cal. Rules of Court, rule 425(a)(2); People v. Levitt (1984) 156 Cal.App.3d 500, 518 [203 Cal.Rptr. 276].) No error occurred.
The record shows that the kidnap victim was selected by appellants because she was a female and small in size, i.e., she was particularly vulnerable. In addition, appellants’ prior convictions were numerous and of increasing seriousness. (Cal. Rules of Court, rules 421(a)(3), 425(b).) The presence of these factors indicates that the trial court did not abuse its discretion in imposing a consecutive sentence. (People v. Arviso (1988) 201 Cal.App.3d 1055, 1059 [247 Cal.Rptr. 559].)
Conclusion
Where, as here, the trial court‘s intention is clear, there is no need to remand for resentencing as we have the statutory power to modify the judgment. (
The convictions for attempted kidnapping and false imprisonment (counts VII & VIII) are vacated. A stay of sentence for escape, assault with a deadly
Stone (S.J.), P.J., and Gilbert, J., concurred.
On August 24, 1995, the opinion was modified to read as printed above. Appellants’ petition for review by the Supreme Court was denied November 2, 1995.
Notes
Count V of the information, in pertinent part, alleged that appellants violated section 209, subdivision (a) by kidnapping Goldman “. . . for ransom, reward, extortion and to extract from relatives and friends of Ava Goldman money and other valuable things to wit, a 1990 CHEVY PICKUP.”
The information pled count V in the conjunctive and the People proved the disjunctive. (In re Bushman (1970) 1 Cal.3d 767, 774-775 [83 Cal.Rptr. 375, 463 P.2d 727].) Reference to “extortion” in count V does not mean that the People‘s theory was “extortion of an official act.” Nor does the separate count of extortion of Lieutenant Barrett, count IV, mean that that was the People‘s theory as to count V. “[E]ach count of an accusatory pleading . . . charges a separate and distinct offense [and] must stand on its own merit and the disposition of one count has no effect or bearing on the other counts in the accusation. [Citations.]” (People v. Ham (1970) 7 Cal.App.3d 768, 776 [86 Cal.Rptr. 906].)The probation report further indicated that Lopez, age 16, agreed to escape with Chacon. Lopez and Chacon took a vocational landscape class and made the shanks from long rusty nails that were sharpened on a cement wall. The probation report stated: “Lopez was insistent they would have stabbed or killed Goldman if they were forced to. He said if he was going to go down, he was going to take somebody with him. Lopez emphasized he would have gone out like a soldier and done what he had to do if it would have been necessary. When asked if he really thought the shanks could have hurt someone, Lopez explained he could have done a lot of damage with the shank he was holding because he had it pressed to victim Goldman‘s neck/throat area. He said any of these ‘soft tissue’ areas could be very deadly. Lopez was also convinced that Chacon would have killed Goldman if it had been necessary.”