THE PEOPLE, Plaintiff and Respondent, v. SUDESH SINGH, Defendant and Appellant.
A154826
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION THREE
Filed 11/18/19
CERTIFIED FOR PUBLICATION
(City & County of San Francisco Super. Ct. No. SCN225090)
FACTUAL AND PROCEDURAL BACKGROUND
A. Summary of the Trial Evidence
Defendant was charged by information with felony kidnapping a one-year-old child (
The mother of the victim (Mother) testified that one morning in November 2015, she and her son waited for a bus outside of the U.S. Citizenship and Immigration building on Sansome Street in San Francisco. At the time, her son was nearly two years old.
Mother stepped into the bus when it arrived, and she put her son down to pay the fare. The child did not cry as Mother put him down, and she did not notice anything that would put him in danger. At this point, defendant picked the child up and walked away from the bus.
Upon hearing her son either crying or saying something, Mother turned around and ran after him. Defendant got about five steps away from the bus before Mother yanked her son out of defendant‘s arms. Mother had not given defendant permission to touch her son or take him from the bus. After returning to the bus, Mother called her brother and asked him to call the police. Defendant was arrested three days later trying to enter San Francisco International Airport from the airport BART station.
Videos from the bus and from the U.S. Citizenship and Immigration building were played and admitted into evidence. The videos showed defendant‘s pre-taking contact with Mother and her son, his taking the child off the bus, and Mother reclaiming her child. The bus footage reflected that the child began crying moments after defendant picked him up and that he continued to cry for a short time after he and his mother got back on the bus.
Defendant testified on his own behalf. He said he went to the U.S. Citizenship and Immigration building that day to report to his immigration officer, though he had no appointment. He noticed the line into the building was long, so he decided to hang around until it got shorter. His attention was drawn to Mother and her son because the child was crying. Mother did not object when he made contact with the child to cheer
B. Instructions, Arguments, and the Outcome of Trial
For the kidnapping count, the trial court instructed the jury with CALCRIM No. 1201, which required the People to prove that defendant used physical force to take and carry away an unresisting child, that he moved the child a substantial distance, that he moved the child with an illegal intent or for an illegal purpose, and that the child was under 14 years old at the time of the movement. As given, the instruction defined “substantial distance” as follows: “Substantial distance means more than a slight or trivial distance. In deciding whether the distance was substantial, 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.” (Italics omitted.)
With regard to the child endangerment count, the trial court instructed with CALCRIM No. 823 that the People had to prove that “defendant willfully inflicted unjustifiable physical pain or mental suffering on a child.” In addition, and as relevant here, the court also instructed that “[w]ords and phrases not specifically defined in these
During closing argument, the prosecutor contended defendant was guilty of kidnapping because he took and moved the child away from Mother a substantial distance with no right or reason to do so. He explained the requirement that a defendant move a child with an illegal intent or purpose was in place to ensure that people engaging in harmless conduct—such as a babysitter who picks up the wrong child from school, or a sibling who takes a child to a park—are not penalized. The prosecutor asserted he could not prove defendant‘s motivations, but regardless, defendant had no right or reason to take the victim from his mother. Defense counsel argued during closing that the only possible illegal intent or purpose that could be conjured in this case was that defendant intended to take or steal the child away. She urged the jury to reject that theory and to find defendant was trying to protect the child.
The jury found defendant guilty of kidnapping but was unable to reach a verdict on the child endangerment count. The trial court declared a mistrial as to the child endangerment count and ultimately dismissed it. The court sentenced defendant to five years, awarding him a total of 1096 days of credit.
DISCUSSION
A. CALCRIM No. 1201 and the Illegal Intent or Purpose Element
In In re Michelle D. (2002) 29 Cal.4th 600 (Michelle D.), the Supreme Court held that the offense of kidnapping an unresisting infant or child requires proof that the defendant moved the victim for an illegal purpose or with an illegal intent. (Michelle D., at p. 612.) This holding was derivative of an earlier holding in People v. Oliver (1961) 55 Cal.2d 761, 768 (Oliver). The illegal purpose or intent element was codified in
While acknowledging the trial court instructed with CALCRIM No. 1201, defendant claims the court violated its sua sponte duty to instruct on all the elements of the crime because it failed to further define what illegal purpose or intent he may have had. He asserts that the phrase “illegal intent or for an illegal purpose” is unconstitutionally vague and broad, and that the failure to define the possible scope of a defendant‘s alleged illegal intent or purpose based on the evidence provides inadequate guidance to the jury.2 We are unpersuaded.
In criminal cases, a trial court has a sua sponte duty to instruct regarding the general principles of law relevant to the issues raised by the evidence and necessary for the jury‘s understanding of the case (People v. Estrada (1995) 11 Cal.4th 568, 574 (Estrada)), including the elements of a charged offense. (People v. Bell (2009) 179 Cal.App.4th 428, 434 (Bell).) ” ‘[T]he language of a statute defining a crime or defense is generally an appropriate and desirable basis for an instruction, and is ordinarily sufficient when the defendant fails to request amplification. If the jury would have no difficulty in understanding the statute without guidance, the court need do no more than instruct in statutory language.’ ” (Estrada, at p. 574, italics added.) “The rule to be applied in determining whether the meaning of a statute is adequately conveyed by its express terms is well established. When a word or phrase ’ “is commonly understood by those familiar with the English language and is not used in a technical sense peculiar to the law, the court is not required to give an instruction as to its meaning in the absence of a request.” ’ [Citations.] A word or phrase having a technical, legal meaning requiring
Here, the trial court properly instructed the jury with CALCRIM No. 1201, which required the People to prove that defendant “moved the child with an illegal intent or for an illegal purpose.” This instructional language tracks
Defendant nonetheless maintains the instruction was so vague and broad it created a likelihood the jury punished him for innocent conduct. We disagree.
In evaluating whether a jury instruction provides inadequate guidance, we ask “whether there is a reasonable likelihood the jury understood the charge as defendant asserts. [Citations.] We determine how it is reasonably likely the jury understood the instruction, and whether the instruction, so understood, accurately reflects applicable law.” (People v. Raley (1992) 2 Cal.4th 870, 899 (Raley).) “[W]hen it is argued the instruction is so vague and confusing as to violate fundamental ideas of fairness, ‘we inquire “whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way” that violates the Constitution.’ ” (Id. at p. 901.)
Here, there is no reasonable likelihood the jury understood the instruction as defendant suggests or in a way that violates the law. Instead, it is highly likely the jury understood the terms “illegal intent” and “illegal purpose” in accord with the common understanding of those words, i.e., in contrast with a lawful, innocent, or innocuous intent or purpose, which accurately reflects our case law. (Michele D., supra, 29 Cal.4th at pp. 607, 611–612; Oliver, supra, 55 Cal.2d at pp. 765–766, 768; see People v. Westerfield (2019) 6 Cal.5th 632, 716 (Westerfield).) As indicated, the jury was instructed, and the prosecutor‘s closing argument reiterated, that when words and phrases are not specifically defined, the jury is to use their ordinary, everyday meanings. Other arguments made by the parties also highlighted this point to the jury. For instance, the prosecutor explained the illegal intent or purpose requirement was meant to ensure that people engaging in harmless conduct—such as a babysitter who picks up the wrong child from school, or a sibling who takes a child to a park—were not penalized. This explanation essentially mirrored the controlling case law. (Michele D., supra, 29 Cal.4th at p. 612 [contrasting the “illegal purpose or intent” requirement with individuals who move a person for innocuous purposes, such as “a sibling who takes a child to the park, or for a babysitter who picks up the wrong child from school by mistake“].)
Significantly, neither party suggested defendant could be convicted if he took the child for innocent purposes. The prosecutor contended that defendant‘s illegal intent or purpose was stealing the child away from his mother. Defense counsel agreed that an intent to take the child away from Mother was the only imaginable illegal intent or purpose in the case, but she argued evidence of that intent was lacking because defendant testified he was trying to protect the child from perceived danger.
Defendant‘s reliance on Johnson v. United States (2015) 135 S.Ct. 2551 (Johnson) is misplaced. Johnson involved the
Here, defendant does not challenge a statutory clause; rather, he objects to instructional language. But even if Johnson‘s analysis were applied, the phrase “illegal intent or for an illegal purpose” in CALCRIM No. 1201 does not deny fair notice to defendants of the type of conduct that is punishable as child kidnapping; nor does it invite arbitrary enforcement by judges. (See Johnson, supra, 135 S.Ct. at pp. 2555–2560.)
In sum, we reject the foregoing claim of instructional error.
B. CALCRIM No. 1201 and the Associated Crime Factor
Defendant next contends the trial court erred by failing to modify the asportation element in CALCRIM No. 1201 sua sponte to instruct the jury to consider whether his movement of the child was incidental to the “associated crime” of child endangerment. Consequently, he argues, his constitutional rights were violated when the jury neglected to consider all relevant factors pertaining to the element of asportation.3
As previously stated, a trial court has a sua sponte duty to instruct on all elements of an offense and on the general principles of law governing a case. (Bell, supra, 179 Cal.App.4th at p. 434.) This means the court must provide ” ‘adequate instructions on the defense theory of the case’ if supported by the law and evidence.” (Ibid.) ” ‘An appellate court reviews the wording of a jury instruction de novo’ [citation], and determines whether ‘the instructions are complete and correctly state the law’ [citation].” (Id. at p. 435.)
Kidnapping requires proof of asportation, i.e., proof that the defendant moved the victim a “substantial distance.” (CALCRIM No. 1201;
Relevant to the present claim, the Martinez court also said: “in a case involving an associated crime, the jury should be instructed to consider whether the distance a victim was moved was incidental to the commission of that crime in determining the movement‘s substantiality.” (Martinez, supra, 20 Cal.4th at p. 237.) Drawing in part from the aggravated kidnapping statutes, Bell, supra, 179 Cal.App.4th 428 defined “associated crime” as ”any criminal act the defendant intends to commit where, in the course of its commission, the defendant also moves a victim by force or fear against his or her will.” (Bell, at pp. 438–439, italics in original and italics added.)
Here, the trial court instructed the jury to consider the totality of the circumstances and the various contextual factors set out in Martinez to decide whether the victim was moved a substantial distance. Neither party asked for, and the court did not give, instructions concerning the so-called “associated crime” factor.
We agree with the People that an instruction regarding the associated crime factor was unnecessary because, while the child endangerment and kidnapping counts were based on the same general conduct, there was no evidence that defendant intended to inflict unjustifiable physical pain or mental suffering on the child and, in the course of committing that criminal act, moved the child.5 (See Bell, supra, 179 Cal.App.4th at
The cases defendant relies on—Bell, supra, 179 Cal.App.4th 428, People v. Delacerda (2015) 236 Cal.App.4th 282 (Delacerda), and People v. Williams (2017) 7 Cal.App.5th 644 (Williams)—do not support an alternate conclusion in this case.
In Bell, the defendant, who was a parolee with an outstanding warrant, met with his ex-wife who was going to repay him a debt. (Bell, supra, 179 Cal.App.4th at p. 432.) During this meeting, the defendant and his ex-wife were in his car when officers confronted the defendant. (Ibid.) The defendant sped off, leading officers on a car chase. (Ibid.) His ex-wife remained in his car for part of the car chase. (Id. at pp. 432–433.) The defendant was convicted, in part, of evading police while driving recklessly and kidnapping. (Id. at p. 433.) Upon finding the evidence supported a finding that the defendant intended to evade the police and did so recklessly, and that he moved the victim by force or fear against her will in the course of that evasion, the Bell court
In Delacerda, the victim‘s jealous ex-boyfriend kept her inside her apartment and demanded she let him look at her emails. (Delacerda, supra, 236 Cal.App.4th at p. 285Id. at p. 286Ibid.) The victim testified the defendant held her under her armpits when dragging her, and he choked her or covered her mouth when she tried to scream. (Id. at pp. 288, 291–292Delacerda court found “[t]hese acts of harmful or offensive touching are criminal acts which ‘the defendant intend[ed] to commit where, in the course of [their] commission, the defendant also move[d] a victim by force or fear against his or her will.’ ” (Id. at p. 292, italics added.) Comparing such evidence to the evidence of the acts in Bell, the court determined that the alleged domestic violence battery was an associated crime of the alleged kidnapping, and that the trial court prejudicially erred by not instructing sua sponte on the associated crime factor. (Id. at pp. 292–294.)
Finally, Williams involved a situation where the defendants moved employees of an AT&T store from the front of the store to the back room (about 50 feet), then took one employee to the adjoining vault room to open safes. (Williams, supra, 7 Cal.App.5th at p. 671Id. at pp. 671–672.)
Bell, Delacerda, and Williams each involved facts amply showing that the defendants intended to commit crimes other than kidnapping (evasion, domestic violence battery, robbery), and that they moved the victims to accomplish those crimes. There is no similar evidence here.
For the reasons stated, we reject this claim of instructional error.
Defendant‘s final argument is the evidence was insufficient to establish that he acted with illegal intent or for an illegal purpose because there was no evidence he picked up the victim with “nefarious intent.” On this point, defendant asserts “the prosecutor never established any theory for why [defendant] would want to remove [the child] from the custody of his mother.” He also contends insufficient evidence supported the asportation element of kidnapping because the victim‘s movement was incidental to the child endangerment count, the movement occurred in the day time in the middle of the city, and the distance involved was very short.
“In assessing the sufficiency of the evidence, we review the entire record in the light most favorable to the judgment to determine whether it discloses evidence that is reasonable, credible, and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] Reversal on this ground is unwarranted unless it appears ‘that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].’ ” (People v. Bolin (1998) 18 Cal.4th 297, 331.)
As discussed, it is an element of kidnapping an unresisting child that the defendant move the child while harboring an illegal intent or purpose. (Michele D., supra, 29 Cal.4th at p. 612People v. Morgan (2007) 42 Cal.4th 593, 607.) “[O]ur Supreme Court has ‘repeatedly stated no minimum distance is required to satisfy the asportation requirement.’ ” (People v. Robertson (2012) 208 Cal.App.4th 965, 986.) What constitutes a “substantial distance” is resolved by considering the totality of the circumstances, including non-exclusive contextual factors, such 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.” (Martinez, supra, 20 Cal.4th at p. 237.)
We conclude there is sufficient evidence to satisfy both the illegal purpose or intent element and the asportation element.
First, there was substantial evidence of an illegal intent or purpose. Specifically, the evidence was undisputed that defendant took the child away from his mother without her knowledge or consent. In rejecting defendant‘s claim that he took the child to protect him, the jury determined he had no legitimate or lawful reason for carrying away the child. As one court has indicated, to satisfy the illegal intent or purpose requirement, the lack of a lawful purpose for separating a child from his or her parent without the parent‘s knowledge and consent “is all that the law requires.” (Westerfield, supra, 6 Cal.5th at p. 717, italics added; see People v. Jones (2003) 108 Cal.App.4th 455, 465–466;
Second, with regard to asportation, we observe the record lacks an exact measurement of the actual distance defendant moved the child. Nonetheless, the video evidence shows defendant removing the child from inside the bus and taking about five steps away before Mother ran and caught up. During closing argument, defense counsel estimated the child was moved six to ten or twelve feet, while the prosecutor estimated ten to fifteen feet. Accepting the parties’ assessment that defendant moved the child ten or so feet from Mother, we cannot say the movement was insubstantial considering the totality of the circumstances. The victim here was extremely vulnerable: he was just shy of two years old and only spoke a little bit of Spanish. A child such as this had no means of fending off an adult kidnapper, or protecting himself, or finding his mother after a physical separation. Without speaking a word and behind Mother‘s back, defendant picked up this child and took him from one environment, the inside of the bus where his mother was, to another environment, outside of the bus where no one knew the child and the child knew no one. (See Martinez, supra, 20 Cal.4th at p. 236; People v. Shadden (2001) 93 Cal.App.4th 164, 169 (Shadden) [“Where movement changes the victim‘s environment, it does not have to be great in distance to be substantial“].)
The change in environment was significant in this case because it separated the child from his mother, the only nearby adult who knew him and provided him safety.
Finally, we reject defendant‘s contention that the movement was merely incidental to the child endangerment count. As discussed previously, the evidence fell short of indicating that the alleged child endangerment crime was an associated crime within the meaning of Bell, supra, 178 Cal.App.4th at pages 438–439.
Having reviewed the entire record in the light most favorable to the judgment, we find substantial evidence supporting the kidnapping conviction.
DISPOSITION
The judgment is affirmed.
Fujisaki, J.
WE CONCUR:
Siggins, P. J.
Goode, J. *
A154826
* Retired Judge of the Superior Court of Contra Costa County, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
(A154826)
Trial court: City & County of San Francisco
Trial Judges: Hon. Bruce E. Chan
Attorneys: First District Appellate Project‘s Independent Case System, John L. Staley for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Jeffrey M. Laurence, Senior Assistant Attorney General, Eric D. Share, Supervising Deputy Attorney General, Ashley Harlan, Deputy Attorney General.