Filed 6/26/15 P. v. Soto CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B253607
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA412259)
v.
CARLOS SOTO,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County,
George G. Lomeli, Judge. Affirmed.
Alan S. Yockelson, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Susan Sullivan Pithey and Blythe
J. Leszkay, Deputy Attorneys General, for Plaintiff and Respondent.
_________________________
Defendant and appellant Carlos Soto raises contentions of sufficiency of the
evidence and instructional error following his conviction of kidnapping and corporal
injury to a cohabitant, with an enhancement for a prior serious felony conviction.
For the reasons discussed below, the judgment is affirmed.
BACKGROUND
Viewed in accordance with the usual rules of appellate review (People v. Ochoa
(1993) 6 Cal.4th 1199, 1206), the evidence established the following.
The victim, Denise G., testified as follows. She and defendant Soto were in a
relationship and had two children together. All four of them lived together in
apartment 25 on Pasadena Avenue in Los Angeles. On June 7, 2013, Soto was going
through Denise’s phone and discovered texts from a male acquaintance. Soto became
enraged, calling Denise a “bitch and a whore and all kinds of names.” He punched her
approximately five times in the right arm, striking her “from [her] shoulder all the way
down to [her] elbow.” Denise identified photographs showing the large red bruises that
resulted from these punches. Soto also punched her twice on the right leg, near her knee,
leaving a big bruise, which Denise again identified in a photograph.
Their children began to cry. Soto continued to harangue Denise, and at one point
threw the phone at her “real hard,” leaving a small bruise on her back which she
identified in a photograph. He also poked her hard in the left eye with two fingers,
bruising her face. Denise identified a photograph showing her half-closed left eye with a
slight bruise underneath. Only after Soto’s children pleaded tearfully for him to stop did
the attack subside.
Denise left apartment 25 with her children. Hearing Soto yell “bitch,” Denise ran
to apartment 12, in an adjacent building, where her friend Consuelo lived, locking the
door behind her. Apartment 12 faced apartment 25 from the adjacent building, but as no
direct path linked the doors to each other, Denise had to walk “all the way around” the
rectangular walkway and over a bridge between the buildings to reach apartment 12.
Soto followed, shouting and banging on the door of apartment 12. Denise called
9-1-1 on Consuelo’s phone and said her boyfriend was trying to hit her. Soto then
2
walked back to apartment 25. Denise testified at trial: “I . . . see him going through my
phone, he is nodding his head, keeps looking at Consuelo’s apartment. He knows I’m in
the living room. At that point, he goes back to Consuelo’s door, yelling at me, hitting the
door, saying he is going to go in and that’s when I placed the second 9-1-1 call.” Denise
told the 9-1-1 operator she was in apartment 12.
At some point, Consuelo left to run an errand and, as Consuelo was returning,
Soto followed her into apartment 12 just as Denise was calling 9-1-1 a third time. She
threw the phone down onto the couch. The 9-1-1 call remained connected. As the
operator listened, Soto shouted at Denise, demanded to know the identity of “D-Boy,”
slapped her, spat in her face and grabbed her hair. At one point, Soto said he did not
“wanna do this in front of people.”
After approximately fifteen minutes, Soto flung Denise to the ground, took her by
the hair, and dragged her about 20 feet until the two of them were just outside Consuelo’s
apartment. Once outside, Soto pulled Denise to her feet and marched her back to their
apartment, still holding her by her hair. Denise noticed some other neighbors watching
the commotion from downstairs. When Denise apparently tried to extricate herself from
Soto’s grasp, he bit her hand. Denise did not suffer any injuries from the bite. Once back
inside apartment 25, Soto resumed his attack, slapping and spitting on Denise and
pinning her to the couch with his knee. At this point, police officers responding to
Denise’s 9-1-1 calls entered the apartment and arrested Soto.
Soto did not call any witnesses.
Soto was convicted of kidnapping and corporal injury to a cohabitant, with an
enhancement for a prior serious felony conviction. (Pen. Code, §§ 207, 273.5, subd. (a),
667, subd. (a)(1)).1 He was sentenced to state prison for a term of 15 years. This appeal
followed.
1
All further statutory references are to the Penal Code unless otherwise specified.
3
CONTENTIONS
Soto contends: (1) the kidnapping conviction must be reversed because the
evidence was insufficient to establish that crime’s asportation element; and (2) the trial
court erred in failing to instruct the jury to consider whether the alleged kidnapping was
movement that was merely incidental to the commission of a kidnapping-associated
crime.
DISCUSSION
1. Substantial evidence supported the jury’s kidnapping verdict.
Soto contends the kidnapping conviction must be reversed because the evidence
was insufficient to establish that crime’s asportation element. There is no merit to this
claim.
a. Legal principles.
“In assessing a claim of insufficiency of evidence, the reviewing court’s task is to
review the whole record in the light most favorable to the judgment to determine whether
it discloses substantial evidence – that is, 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. [Citation.] . . . . The standard of review is the same in cases in which
the prosecution relies mainly on circumstantial evidence. [Citation.] ‘ “Although it is the
duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible
of two interpretations, one of which suggests guilt and the other innocence [citations], it
is the jury, not the appellate court[,] which must be convinced of the defendant’s guilt
beyond a reasonable doubt. ‘ “If the circumstances reasonably justify the trier of fact’s
findings, the opinion of the reviewing court that the circumstances might also reasonably
be reconciled with a contrary finding does not warrant a reversal of the judgment.” ’
[Citations.]” ’ [Citation.]” (People v. Rodriguez (1999) 20 Cal.4th 1, 11.)
To prove the crime of simple kidnapping (§ 207, subd. (a)), “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
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person was for a substantial distance. [Citation.]” (People v. Jones (2003)
108 Cal.App.4th 455, 462.) The third element is the “asportation” element.
In evaluating the element of asportation, a jury may convict only upon finding that
the victim was moved “a distance that was ‘substantial in character.’ ” (People v.
Martinez (1999) 20 Cal.4th 225, 237 (Martinez). The jury may so decide by evaluating
the distance alone, and need not consider any other factor. (Ibid.) However, where the
evidence permits, the finder of fact may examine not only the physical distance the
victim was moved, but may also take into account the “ ‘scope and nature’ of the
movement and the increased risk of harm to the victim.” (Id. at p. 236.) “[T]he jury
should consider the totality of the circumstances,” and may consider “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.” (Id. at p. 237.) “At the same time, we emphasize that contextual
factors, whether singly or in combination, will not suffice to establish asportation if the
movement is only a very short distance.” (Ibid.)
b. Application.
Soto makes two arguments why the evidence at trial failed to establish that his
movement of Denise was for a substantial distance: (1) the actual distance of the
movement was too short; and, (2) the Martinez non-distance factors did not render the
distance substantial because the police already had been called, they knew where Denise
was, and the movement occurred in view of her neighbors. We address these arguments
in turn.
(1) The distance was sufficient to prove asportation.
Soto argues the distance he forced Denise to travel was insufficient to support his
kidnapping conviction. He asserts, “No distance estimate was offered for the path from
Denise G.’s apartment to Consuelo’s, but the description suggests a modest distance. The
only distance estimate offered into evidence was 20 feet for the distance appellant
dragged Denise G. within Consuelo’s apartment – from the couch to the doorway.”
5
(Italics added.) Pointing to the language in Martinez explaining that “contextual factors,
whether singly or in combination, will not suffice to establish asportation if the
movement is only a very short distance” (People v. Martinez, supra, 20 Cal.4th at
p. 237), Soto argues, “Here, there was little evidence offered to establish the distance
Denise G. was moved,” and she “described Consuelo’s apartment as ‘[r]ight across from
my apartment,’ suggesting that the distance was not great.” However, while it is true the
jury never received an estimate of the total distance, the jury did view several
photographs of the apartment complex on which Denise used a permanent marker to
indicate the location of both apartments, and the path she and Soto traveled between
them.
Based on the evidence submitted to it, the jury was capable of estimating the
distance of Denise’s movement. Exhibit 1, a photograph, shows a view of the two
apartment doors and a good portion of the walkway on either side. Denise, in the
presence of the jury, drew the path she took on this photograph. Exhibit 2 shows the door
of apartment 25, as well as the walkway leading away from it and half of the walkway
bridge. Exhibit 8 shows a circled door, identified at trial as the same door circled in
exhibit 1, and the walkway in front of it, continuing to the left out of the frame. These
exhibits enabled the jury to estimate the distance Denise was moved and to reasonably
conclude the distance was substantial.2
Soto fails to cite any case law for the proposition that the distance traveled here
was so short that the prosecution failed to prove asportation, no matter what other factors
might have been present. In fact, cases have found movements for fairly short distances
to be sufficient where the evidence showed the existence of other relevant factors. (See,
e.g., People v. Arias (2011) 193 Cal.App.4th 1428, 1435 [movement of victim a distance
of 15 feet from public area to apartment interior sufficient for kidnapping conviction];
People v. Smith (1995) 33 Cal.App.4th 1586, 1594 [movement 40 to 50 feet from
2
We attach copies of People’s exhibits 1, 2 and 8 as exhibits A, B, C, respectively,
to this opinion.
6
driveway to interior of camper sufficient to sustain sentencing enhancement (§ 667.8)
based on simple kidnapping].)
The distance Soto forced Denise to move was not by itself insufficient to prove the
asportation element of kidnapping.
(2) The evidence was sufficient for the jury to conclude the distance
was substantial under the totality of the circumstances.
Soto next argues that the totality of the circumstances fails to render the distance
substantial; i.e., that there was no increase in risk of harm or decrease in likelihood of
detection as a result of the movement. He notes Denise had given the police both
apartment numbers, the police were on their way, and indeed they arrived shortly after
Soto forcibly returned Denise to apartment 25. In addition, the commotion had drawn
neighbors from their apartments, and they apparently watched the entire movement from
below. Soto argues, therefore, that the movement did not decrease the likelihood of
detection, and might even have increased it. However, even assuming arguendo that the
movement did indeed increase the likelihood of detection, this does not dispose of the
matter. Decreased likelihood of detection is but one factor among several that Martinez
empowers juries to examine in determining whether the distance was substantial.
Soto seemingly asserts that in evaluating these other factors, i.e., whether the
“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, supra, 20 Cal.4th at p. 237, fn. omitted), the jury
must consider “not . . . what could have been but . . . what was, and here, the facts show
that the movement of Denise G. did not increase the risk of harm to her nor did it
decrease the likelihood of detection.” However, Martinez cautions that “[t]he fact these
dangers do not in fact materialize does not, of course, mean that the risk of harm was not
increased.” (Id. at p. 233)
The jury heard the tape recording of Denise’s third 9-1-1 call in which Soto told
her, “I’m fucking telling you I don’t wanna do this in front of people.” The jury could
7
have interpreted this to mean Soto did not want to be observed, and that removing Denise
from Consuelo’s presence and back into apartment 25 would afford him the “opportunity
to commit additional crimes.” Additionally, Denise testified that Soto bit her when she
attempted to escape his grasp while he was forcing her to go from Consuelo’s apartment
back to their apartment. Like the risks accompanying asportation in a vehicle or under
other dangerous conditions, Soto’s reaction was indicative of the increased danger from a
kidnap victim’s foreseeable attempt to escape. Denise testified: “[W]hen I tried to get
his arm, his hand off of me, that’s when he bit me, [and] said where the hell was I going.”
In sum, ample evidence supported the jury’s verdict. Although the distance was
not quantified, the jury viewed exhibits showing the distance Denise was moved and it
supported a finding that she was moved a substantial distance. The jury heard the
recording of a 9-1-1 call containing a statement by Soto that he did not “wanna do this in
front of people.” The evidence demonstrated that Soto treated Denise more roughly
when they were outside Consuelo’s presence (poking Denise hard in the eye and
punching her) than when they were inside apartment 12 (slapping, spitting and grabbing
her hair). The jury also heard the sounds of the mêlée, and could in light of the evidence
reasonably have concluded that the movement created a greater risk of harm to Denise in
the seclusion of their apartment than if Soto had continued his attack where they were.
We therefore reject Soto’s contention that the evidence was insufficient to support
his conviction for kidnapping.
2. The exclusion of the “associated crime” language from CALJIC 9.50 was not
error.
Soto contends the movement of Denise was merely incidental to the associated
crime of corporal injury to a cohabitant charged in count 1. Accordingly, he argues the
trial court erred in excluding from its kidnapping instruction language discussing
movement incidental to an associated crime. We reject this contention because the crime
of corporal injury to a cohabitant was not in progress at the time the movement occurred
and, therefore, the failure to instruct was not error.
8
a. Legal principles
A trial court must instruct the jury on the essential elements of an offense (People
v. Flood (1998) 18 Cal.4th 470, 504) and “ ‘ “even in the absence of a request, the trial
court must instruct on the general principles of law relevant to the issues raised by the
evidence. [Citations.] The general principles of law governing the case are those
principles closely and openly connected with the facts before the court, and which are
necessary for the jury’s understanding of the case.” [Citation.]’ ” (People v. Breverman
(1998) 19 Cal.4th 142, 154.) “A ‘criminal defendant is entitled to adequate instructions
on the defense theory of the case’ if supported by the law and evidence. [Citation.]”
(People v. Bell (2009) 179 Cal.App.4th 428, 434.)
In a kidnapping 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.” (People v. Martinez, supra,
20 Cal.4th at 237.) An “associated crime” is “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.” (People v. Bell, supra, 179 Cal.App.4th at 438-439,
original italics.) If the victim’s movement was merely “incidental” to an associated
crime, then this is a factor the jury should take into account when deciding if the distance
the victim was forced to move was “substantial.”
Whether or not a movement is incidental to an associated crime is a fact-specific
inquiry turning on “the actual acts undertaken by the defendant in a specific case, not a
bare comparison of the elements of the crimes.” (People v. Bell, supra, 179 Cal.App.4th
at 438.) For example, in People v. Washington (2005) 127 Cal.App.4th 290, this court
held that the movement of two victims from a bank’s teller area into its vault room was
incidental to the associated bank robbery because “robbery of a business owner or
employee includes the risk of movement of the victim to the location of the valuables
owned by the business that are held on the business premises.” (Id. at p. 300.) “[T]here
was no excess or gratuitous movement of the victims over and above that necessary to
obtain the money in the vault,” this court observed. (Id. at p. 299.) Likewise, in People
9
v. Bell, the defendant’s movement of the victim 70 feet in his car was sufficiently related
to the associated crime of evasion3 to trigger an incidentalness instruction because “the
jury could have found that in the course of the evasion, [the victim] was moved by force
or fear against her will.” (People v. Bell, supra, 179 Cal.App.4th at p. 439, italics added.)
However, in People v. Salazar (1995) 33 Cal.App.4th 341, the movement of the victim
from a motel balcony, across a motel room, and into a bathroom was not incidental to an
associated rape because “[t]he movement of [the victim] was not necessarily related to
the rape crime itself; rather, a jury could reasonably conclude it was an essential part of
[the defendant]’s plan to avoid detection and to make the crime easier to commit.” (Id. at
p. 347.)
b. Application
Soto’s theory of the case, as we gather from defense counsel’s closing argument,
was that Denise sustained injuries from Soto’s assault in both apartments, and since
wounding or injury is an element of corporal injury to a cohabitant (§ 273.5, subd. (a)),
the movement occurred during a single unitary course of assaultive conduct. On appeal,
Soto contends that the trial court should, in light of the evidence, have instructed the jury
sua sponte on movement incidental to an associated crime.
The jury was instructed on kidnapping with CALJIC No. 9.50. However, the
language in this instruction relating to movement incidental to an associated crime was
not included. The omitted language would have said, “If an associated crime is involved,
the movement also must be more than that which is incidental to the commission of the
other crime,” and “An associated crime is any criminal act, whether charged or not, 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.” (CALJIC No. 9.50.)4
3
Vehicle Code section 2800.2 proscribes evading a police officer while driving
recklessly.
4
As it happens, the language the court deleted from the instruction is not a correct
statement of the law. It implies the jury can convict only where the movement was not
incidental, when in fact incidentalness is only one factor the jury should consider in
10
In determining whether the trial court’s failure to include this “incidental to the
commission of the other crime” language in the kidnapping instruction constitutes
reversible error, we must first determine whether Soto’s theory of the case was
“supported by the law and evidence.” (People v. Bell, supra, 179 Cal.App.4th at 434.) In
doing so, we examine Soto’s “actual acts” in this case. (Id. at 438.) Soto beat Denise
repeatedly until she left apartment 25. Once she arrived at Consuelo’s apartment, she
remained there and Soto remained stymied on the other side of the door. When Consuelo
let him in, Soto spat at Denise, slapped her and pulled her hair, and then dragged her
through the door, across the walkway (where he bit her hand), and back into
apartment 25.
The offense of corporal injury to a cohabitant requires the infliction of a traumatic
condition, defined in section 273.5, subdivision (d), as “a condition of the body, such as a
wound, or external or internal injury. . . , whether of a minor or serious nature, caused by
a physical force.” Section 273.5 “proscribes a ‘very particularized battery.’ [Citation.]
The essence of any battery is the touching of the victim. [Citation.] In section 273.5, the
touching must result in bodily injury. Thus, evidence of one punch to the face resulting
in a black eye would constitute a completed violation of section 273.5.” (People v.
Johnson (2007) 150 Cal.App.4th 1467, 1477.) Section 273.5 is violated if there is
evidence of bruising (People v. Beasley (2003) 105 Cal.App.4th 1078, 1085) or redness
(People v. Wilkins (1993) 14 Cal.App.4th 761, 771), but not by evidence of pain without
any physical manifestation (see People v. Abrego (1993) 21 Cal.App.4th 133, 138
[“soreness and tenderness” without any physical manifestation of injury does not
constitute requisite traumatic condition].)
deciding whether the movement was substantial. (See People v. Martinez, supra,
20 Cal.4th at 237.) CALCRIM 1215, on the other hand, correctly informs the jury that
“[i]n deciding whether the distance was substantial . . . you may also consider other
factors such as . . . whether the distance the other person was moved was beyond that
merely incidental to the commission of .”
11
The evidence here was that the only traumatic injuries Denise sustained – bruising
to her arm, leg, back and face – were all inflicted in apartment 25 before she fled to
apartment 12, which is where the kidnapping began. Soto has not pointed to any
evidence in the record demonstrating Denise suffered traumatic injuries except those she
sustained prior to being kidnapped.
Denise testified there was no resulting injury when Soto bit her hand while he was
dragging her from Consuelo’s apartment back to apartment 25. Inside Consuelo’s
apartment, the evidence demonstrates Soto assaulted Denise by slapping her, pulling her
hair and dragging her on the floor, but he did not inflict any section 273.5 traumatic
injuries because there was no evidence that he left physical marks from those actions.
The jury was instructed that corporal injury to a cohabitant requires infliction of a
traumatic injury, which the instructions defined as “a condition of the body such as a
wound or external or internal injury, whether of a minor or serious nature caused by a
physical force.” During closing argument, the prosecutor noted this instruction and then
said: “Well, you heard the testimony from Denise G. You saw the pictures and the
pictures . . . will go in the back room with you. You saw the pictures where on
Denise G.’s arm, there were bruises. [¶] On her leg there were bruises. You saw the
picture on [sic] her back. There was a bruise and under her left eye, there was swelling
and a bruise. Ladies and gentlemen of the jury, that is the physical injury. That’s
element 1. I need to prove no more regarding that element.” The prosecutor continued:
“The bruises on her arm were caused by him punching her. The bruise on her leg was
caused by the defendant punching her. The bruise on her back was caused by the
defendant throwing her phone at her back, and the bruise on her eye was caused by the
defendant basically poking her in the eye. [¶] All of that is a direct application of force.
And each of those incidents caused a wound or an injury to her.”
Defense counsel asserted in closing argument that not all Denise’s injuries
occurred before she ran from apartment 25 because “[w]hen she went over to Consuelo’s
apartment, she had the phone thrown at her.” During rebuttal argument, however, the
prosecutor correctly pointed out the phone-throwing incident occurred before Denise left
12
apartment 25. The prosecutor also argued: “When she was bitten on the hand, I asked
her a specific question . . . I asked her . . . . [d]id she receive any injury? She said no.
That is important. Why? Because you heard the element for count number 1, domestic
violence. In order for there to be a domestic violence, there must be a traumatic
condition. When she was . . . in Consuelo’s apartment, she was slapped, she suffered no
bruises. When she was being pulled, she incurred no bruises. When she was bit, she
suffered no injury. [¶] If she had suffered a traumatic condition in Consuelo’s
apartment, you would have had two counts of domestic violence because once she fled
and got to safety [in Consuelo’s apartment], that first incident was completed.”
Hence, the evidence clearly establishes that Soto finished committing the crime of
corporal injury to a cohabitant before he gained access to apartment 12 and seized Denise
in order to commit the kidnapping. We therefore reject Soto’s argument that the
asportation of Denise was merely incidental to the domestic violence crime alleged in
count 1. Because the associated crime of corporal injury to a cohabitant had already been
committed at the time of Soto’s movement of Denise, the failure to instruct on incidental
movement was not error. (See People v. Delacerda (2015) 236 Cal.App.4th 282, 291
[trial court did not err in failing to instruct on kidnapping as possibly incidental to assault
with a firearm because the assault “was complete before the movement which comprised
the kidnapping began” and “[c]onsequently, this act was not an associated crime as a
matter of fact”].)
The trial court did not err in failing to instruct the jury to consider whether the
alleged kidnapping was merely incidental to the crime of corporal injury to a cohabitant.
Soto’s theory of the case was not “supported by the law and evidence.” (People v. Bell,
supra, 179 Cal.App.4th at 434.) The jury was properly instructed on “ ‘ “the general
principles of law relevant to the issues raised by the evidence” and “which [were]
necessary for the jury’s understanding of the case.” ’ ” (People v. Breverman, supra,
19 Cal.4th at p. 154.)
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DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EDMON, P. J.
We concur:
KITCHING, J.
EGERTON, J.*
*
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
14
EXHIBIT “A”
15
EXHIBIT “B”
16
EXHIBIT “C”
17