People v. Singh CA3

Filed 10/28/21 P. v. Singh 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
(Sacramento)
----
THE PEOPLE, C088997
Plaintiff and Respondent, (Super. Ct. No. 16FE018212 )
v.
HARPREET SINGH,
Defendant and Appellant.
Is testifying as a complaining witness in a criminal prosecution a form of property,
as defined in the context of kidnapping for extortion? The prosecution argued, and the
trial court agreed, that defendant Harpreet Singh could be convicted of aggravated
kidnapping under a kidnapping for extortion theory because the reason for the
kidnapping, preventing the victim from testifying against him in a sexual assault
prosecution, was a form of property as defined in the extortion statute (former Pen. Code,
1
§ 518).1 They are wrong. Although the term “property” is broadly defined in the context
of the extortion statute, it is not this broad. The ability to testify is not property.
Following a jury trial, defendant was convicted of assault with the intent to
commit sexual penetration by force (§ 220, subd. (a)), conspiracy to dissuade a witness
(§ 182, subd. (a)(1)), dissuading a witness (§ 136.1, subd. (c)(1)), and aggravated
kidnapping (§ 209, subd. (a)), with on bail enhancements (§ 12022.1); defendant admitted
a serious felony (§ 667, subd. (a)), and strike allegations as well (§§ 667, subds. (b)-(i),
1170.12). He was sentenced to 14 years to life plus 20 years.
On appeal, defendant contends there were multiple instructional errors on the
assault offense, the aggravated kidnapping conviction must be reversed as it was obtained
under an invalid theory, the trial court prejudicially erred in failing to instruct on simple
kidnapping as a lesser included offense, and the trial court should have instructed on the
definition of property.
Insufficient evidence supports the aggravated kidnapping conviction because
testifying is not a form of property, and defendant could be guilty of aggravated
kidnapping only if testifying was a form of property. Since simple kidnapping is a lesser
included offense of aggravated kidnapping in this case under the accusatory pleading test,
we shall modify the aggravated kidnapping conviction to simple kidnapping. Declining
to reach the remaining contentions regarding the kidnapping count and rejecting the
contention regarding the assault count, we shall modify the conviction and remand for
resentencing.
1 Undesignated statutory references are to the Penal Code.
2
FACTUAL AND PROCEDURAL BACKGROUND
Prosecution Case
A. The Sexual Assault
M.D. and defendant had been dating for about a month in July 2016. He had told
M.D. he was once accused of rape.
According to M.D., on July 5, 2016, at around 2:00 a.m., she went to defendant’s
Elk Grove home to spend time with him and talk about their relationship. An
engagement party for defendant’s brother was ending; when she arrived, someone offered
her a drink and she accepted. She and the others socialized and drank. At some point,
defendant asked her to go upstairs after she started feeling dizzy and wanted to go
outside.
When they got upstairs, M.D. took off some of her clothes and they started kissing
on defendant’s bed. She was not going to have sex with defendant that night because she
was menstruating and M.D. believed defendant had sex with other women during a recent
trip to Las Vegas. Defendant touched her vagina; she told him to stop and pushed
defendant away. He did not comply at first, but he eventually let her use the bathroom.
He was asleep when she returned.
M.D. was upset because she had come over to defendant’s to talk with him, so she
tried to wake defendant by kissing and moving him. Defendant muttered another
woman’s name when he awoke, which upset M.D. She and defendant started to wrestle,
playfully at first until defendant grabbed her wrists and pushed M.D. onto the bed. An
angry looking defendant pinned her arms above her head and threatened, “I will fuck you
up, nigga.” Scared, M.D. tried but failed to get away from defendant. He removed her
remaining clothing while ignoring M.D.’s repeated pleas for him to stop. According to
M.D., she tried to push defendant away but he penetrated her vagina with his penis three
to four times. Still angry, defendant slapped M.D. in the face and called her a “dirty
bitch.”
3
M.D. could do no more than turn her body around as she tried to get away from
defendant. He started pulling M.D.’s hair, then put something into her anus several
times. After M.D. got on her back, defendant started to choke her. He laid down on the
bed after he stopped the assault.
M.D. cried and pounded on defendant’s chest. Defendant went to her side and
apologized but got angry when she refused to calm down. He told M.D. she should calm
down or leave. Being too intoxicated to drive and unable to find a ride home, M.D. slept
in defendant’s bed.
At 9:00 a.m. that morning, defendant told M.D. to get dressed while he confirmed
that his parents were not home. After she left, defendant sent M.D. a text thanking her
for coming over. M.D. replied by texting defendant that he was a “fucking psycho” who
put his hands on her. Later that day, she texted her friends that she fought with defendant
because he wanted to have sex and she did not. She also texted her friends that defendant
had “slapped” her a few times, had pulled her hair, scared her, and acted like a “fucking
psycho.” She told them that she had to do “the hardest thing,” sleeping at his house that
night, because she could not find a ride home.
M.D. reported the sexual assault to the Elk Grove Police that afternoon. Police
Officer Jason Skelton interviewed her and saw a bruise on her left forearm, where she
reported feeling pain. M.D. also complained of pain in her neck, but Officer Skelton saw
no marks. She told Officer Skelton she was on her period, had removed one tampon, and
inserted another.
M.D. had a sexual assault examination that day, during which she told Dr. Angela
Vickers that defendant had penetrated her anus with his finger. Dr. Vickers found
evidence of anal tears, several cuts to M.D.’s inner vagina, and that two tampons were in
her vagina. No semen was found in swabs taken from her vulva, vagina, cervix, or the
tampons.
4
Swabs taken from both sides of M.D.’s neck contained DNA that was consistent
with defendant’s. DNA from her right breast had a profile that was highly likely
defendants.
In a later interview with Elk Grove Police, M.D. said defendant penetrated her
vagina and anus with his finger while her hair was being pulled. The penetration of her
vagina began before the “playful wrestling” started.
B. Kidnapping and Dissuading a Witness
On October 23, 2017, a week before defendant’s trial was scheduled to start, a
man and a woman approached M.D. as she got out of her car by her apartment. The
man yelled at M.D.; he pointed a gun at her head as she turned around. The man grabbed
M.D.’s arm, told her to shut up, and pushed her into a car that was driven by a third
person. Inside the car, the woman, Jaswin Kaur,2 told M.D. that defendant had sent them.
Kaur said they had been following her for a year, knew where she worked, and where her
daughter went to school; they knew her every move. M.D. was scared when Kaur told
her the name of her daughter’s daycare, the store where she worked, and the gym she
used.
Kaur told M.D. testifying against the defendant was wrong because he was
innocent. She told M.D. not to appear in court. M.D. was to contact a defense
investigator, Angela Santos, the following day and recant the allegations she made
against defendant. M.D., who believed she was being recorded, was made to repeat
statements to the effect that no sexual assault took place. Kaur told M.D. defendant
wanted to contact her and would contact her the next day about arranging a meeting. The
kidnappers then drove back to M.D.’s apartment and dropped her off.
2 Kaur and defendant filed for a marriage license on June 20, 2017.
5
M.D. stayed home from work the following day. She called Investigator Santos
and left a message to call back. She then went to the store, where Kaur called and told
M.D. she knew where she was and that she should call Kaur after talking with Santos.
Santos later called, and M.D. gave a recorded statement recanting her allegations against
defendant. She then called Kaur and related what she told Santos.
That evening, M.D. talked on the phone with defendant, who said he was
frustrated with the case and how much money he spent on it. They agreed to meet at a
park near M.D.’s apartment and did so the next day. When they met, defendant hugged
and caressed M.D., searched her for a wire, and told her everything would be all right.
After defendant again vented about his situation and his belief that the sexual assault
never happened, M.D. expressed her sympathy because she felt she had to. Defendant
said nothing would happen to M.D. if she did not show up to testify, and she would get a
paid vacation for herself and her daughter if this happened. He also told M.D. the case
would be dropped if she did not show up. After defendant made sexual advances towards
her, M.D. became uncomfortable and thought up a reason to leave.
The next day, October 26, 2017, M.D. drove to Fairfield to see a friend. Kaur
repeatedly called her that day, but M.D. ignored the calls. The following day,
October 27,2017, Kaur texted M.D. to call her back. When she did so, Kaur told M.D.
she was upset, M.D. should answer her calls, and that she knew M.D. had gone to
Fairfield. M.D. wondered whether she was being followed. On October 28, 2017, M.D.
looked under her car and found what was later identified as a GPS tracker. This caused
M.D. to decide to testify at defendant’s trial. She called the Elk Grove Police and gave
an initial statement, and later spoke with a detective, who told her the device was a GPS
tracker, which police eventually recovered.
M.D. gave an extensive statement to the Elk Grove Police on October 29, 2017,
after which she participated in four pretext calls, two with Kaur, and two with defendant.
During one call, defendant complaint he would get 40 years for something he did not do.
6
He told M.D. he was in charge and in control of the situation, the tracker had been on
M.D.’s car for a while, and nothing would happen to her if she listened to him. In the
other pretext call, defendant told M.D. that she was being tracked only so the case would
drop, he had control of the situation but would lose it if M.D. did not listen, and her doing
something stupid would “fuck you up.” Kaur told M.D. in one call that “he” had asked
her to call M.D., they had been tracking her for about a year and would continue until the
entire trial was dropped. Kaur also told M.D. nothing would happen to her or her
daughter if the case was dropped, and they could have taken care of the problem, but “he”
did not want to do that.
Defendant was arrested after the pretext calls. Elk Grove Police seized six cell
phones from defendant’s truck when executing a search warrant. In a call from jail with
a woman named Jas, defendant told the woman to turn off her phone and the woman told
defendant she had no money and could not book a ticket to India. About a week later, he
made a call to a phone linked to Kaur, the two engaged in a highly emotional
conversation during which they each expressed their love for the other.
C. Prior Misconduct
On April 23, 2010, D.D. met defendant at a friend’s barbecue. She did not feel
well after a few drinks while at the barbecue and went to a guest bedroom to sleep. D.D.
awakened to find defendant on top of her; he was pinning her arms down and his face
was very close to hers. Defendant had removed her pants and underwear, and his penis
was inside her vagina. A hysterical D.D. scratched defendant’s face and kicked him as
she tried to escape. Defendant kept thrusting his penis into her vagina. When she
escaped, D.D. left the bedroom and sought help.
D. Defense Evidence
Officer Skelton took M.D.’s statement and asked whether she resisted defendant
taking off her bodysuit. M.D. told the officer she did not say no to the defendant because
she thought he was trying to make her feel comfortable.
7
Heath Newland, defendant’s friend, and a former employee of the towing business
owned by defendant’s family, attended the July 4 and 5, 2016 gathering at defendant’s
home, which followed an engagement party for defendant’s brother. Newland testified
that M.D. arrived at the gathering around 1:30 a.m.; she was nicely dressed and looked
“hot.” She sat next to defendant on the couch, held his hand, and was very flirtatious
with defendant. Newland saw M.D. have two drinks.3 After he went to bed in a guest
bedroom, Newland was awakened by defendant a little after 4:00 a.m. He went upstairs
to defendant’s bedroom, where he saw M.D. sitting on defendant’s bed, looking like she
just had sex. M.D. declined his offer of a ride home. He admitted to previously stating
M.D. looked like she had been crying.
Dr. Jerrold Kram, an expert on sleep medicine, testified about the sleep disorder
parasomnia, a condition where the subject engages in various activities like going
downstairs, cooking and eating, and then returning to bed, without remembering having
done so. Alcohol can contribute to the deep sleep state during which this can occur.
Ashley Cuevas met defendant at the end of 2014 and dated him for around six
months. They had sex during this time; defendant never forced her to engage in any
sexual activity, even when they had sex after drinking alcohol. She continued the
relationship after defendant told her he had been convicted of rape.
DISCUSSION
I
Instructional Error
Defendant contends the trial court prejudicially erred in failing to adequately
instruct on the specific intent element of the section 220 offense of assault with intent to
3 Newland also saw defendant drink that day, “normally for a party of that caliber;” but
he did not think defendant was drunk or “sloppy drunk,” but maybe “buzzed.”
8
commit sexual penetration by force, and by failing to instruct on voluntary intoxication
and unreasonable belief M.D. consented to the penetration.
A. Background
Regarding the sexual assault of M.D., defendant was charged with rape (§ 261,
subd. (a)(2)) in count one and forcible sexual penetration (§ 289, subd. (a)(1)) in counts
two and three. He was acquitted of the charge and the lesser included offense on count
one, acquitted on count two, with the jury unable to reach a verdict on the lesser included
offense, and acquitted on count three, but convicted of assault with intent to commit
sexual penetration as a lesser included offense.
Over the prosecutor’s objection, the trial court ruled that the jury would be
instructed on the rape and forcible sexual penetration charges that defendant was not
guilty if he actually and reasonably believed M.D. consented. Over defendant’s
objection, the trial court also gave a pinpoint instruction that such belief could not be
reasonable unless supported by circumstances other than voluntary intoxication. The trial
court further ruled the reasonable belief in consent instruction was inapplicable to the
lesser included offense of assault with intent to commit sexual penetration because this
charge alleged conduct to which M.D. could not consent. Defense counsel agreed with
this ruling.
The trial court gave the standard jury charge on assault with intent to commit
sexual penetration by force, CALCRIM No. 890 as follows:
“Assault with intent to commit a sexual penetration by force, in violation of Penal
Code section 220, is a lesser offense of sexual penetration by force charged in Counts 2
and 3.
“To prove that the defendant is guilty of this crime, the People must prove that:
“1. The defendant did an act that by its nature would directly and probably result
in the application of force to a person;
“2. The defendant did that act willfully;
9
“3. When the defendant acted, he/[she] was aware of facts that would lead a
reasonable person to realize that his/[her] act by its nature would directly and probably
result in the application of force to someone;
“4. When the defendant acted, he/[she] had the present ability to apply force to a
person;
“[AND]
“5. When the defendant acted, he/[she] intended to commit sexual penetration by
force.
“Someone commits an act willfully when he or she does it willingly or on purpose.
“The terms application of force and apply force mean to touch in a harmful or
offensive manner. The slightest touching can be enough if it is done in a rude or angry
way. Making contact with another person, including through his or her clothing, is
enough. The touching does not have to cause pain or injury of any kind.
“The touching can be done indirectly by causing an object to touch the other
person.
“The People are not required to prove that the defendant actually touched
someone.
“No one needs to actually have been injured by the defendant’s act. But if
someone was injured, you may consider that fact, along with all the other evidence, in
deciding whether the defendant committed an assault, and if so, what kind of assault it
was.
“To decide if defendant intended to commit a sexual penetration by force please
refer to Instruction 1045 which defines that crime.”
The court instructed on the sexual penetration by force charges in counts two and
three with CALCRIM No. 1045, which stated as follows:
“The defendant is charged [in Count ] with sexual penetration by force in violation
of Penal Code section 289.
10
“To prove that the defendant is guilty of this crime, the People must prove that:
“1. The defendant committed an act of sexual penetration with another person;
“2. The penetration was accomplished by using a foreign object, or an unknown
object;
“3. The other person did not consent to the act;
“AND
“4. The defendant accomplished the act:
“by force, violence, duress, menace, or fear of immediate and unlawful bodily
injury to another person.
“Sexual penetration means penetration, however slight, of the genital or anal
opening of the other person for the purpose of sexual abuse, arousal, or gratification.
“A foreign object, substance, instrument, or device includes any part of the body
except a sexual organ. An unknown object includes any foreign object, substance,
instrument, or device, or any part of the body, including a penis, if it is not known what
object penetrated the opening.
“Penetration for sexual abuse means penetration for the purpose of causing pain,
injury, or discomfort.
“In order to consent, a person must act freely and voluntarily and know the nature
of the act.
“Evidence that the defendant and the other person dated is not enough by itself to
constitute consent.
“An act is accomplished by force if a person uses enough physical force to
overcome the other person’s will.
“Duress means a direct or implied threat of force, violence, danger, hardship, or
retribution that is enough to cause a reasonable person of ordinary sensitivity to do or
submit to something that he or she would not otherwise do or submit to. When deciding
11
whether the act was accomplished by duress, consider all the circumstances, including the
age of the other person and her relationship to the defendant.
“Retribution is a form of payback or revenge.
“Menace means a threat, statement, or act showing an intent to injure someone.
“An act is accomplished by fear if the other person is actually and reasonably
afraid.
“The defendant is not guilty of forcible sexual penetration if he/[she] actually and
reasonably believed that the woman consented to the sexual penetration and actually and
reasonably believed that she consented throughout the act of sexual penetration.
However, if as a result of self-induced intoxication, the defendant believed the female
was consenting, that belief would not thereby become either reasonable or in good faith
unless from all the surrounding circumstances other than self-induced intoxication you
should find that defendant’s belief that the female was consenting was reasonable and in
good faith. The People have the burden of proving beyond a reasonable doubt that the
defendant did not actually and reasonably believe that the woman consented. If the
People have not met this burden, you must find the defendant not guilty.”
B. Intent and Consent
Defendant’s primary claim of error is that the trial court erred by failing to instruct
on the section 220 offense element of specific intent.
A trial court has a sua sponte duty to instruct the jury on the essential elements of
an offense (People v. Flood (1998) 18 Cal.4th 470, 480), and on the general principles of
law governing the case, which include those principles of law closely and openly
connected with the facts of the case and necessary to the jury’s understanding of the case.
(People v. Michaels (2002) 28 Cal.4th 486, 529-530.) “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.)
12
On appeal, we review the wording of a jury instruction de novo and determine
whether the instructions are complete and correctly state the law. (People v. Bell, supra,
179 Cal.App.4th at p. 435.) We examine the entire charge of the court to determine
whether the instructions are adequate, and whether it is reasonably likely that the
instructions as a whole caused the jury to misapply the law. (People v. Cain (1995)
10 Cal.4th 1, 36.)
Defendant notes that section 220, by requiring an intent to do some further act or
achieve an additional consequence, is a specific intent crime. (People v. Rathert (2000)
24 Cal.4th 200, 205 [defining specific intent]; People v. Dixon (1999) 75 Cal.App.4th
935, 942 [mens rea of section 220].) He further notes that in a prosecution for forcible
sexual penetration (§ 289, subd. (a)(1)), the prosecution must prove the act was without
the victim’s consent, but it does not have to prove that the defendant intended to have sex
against the victim’s will. By contrast, an essential element of section 220 “ ‘is the intent
to commit the act against the will of the complainant.’ ” (People v. Davis (1995)
10 Cal.4th 463, 509.) From this, defendant concludes the instruction on the section 220
offense was insufficient because the jury was not instructed that defendant had to intend
to penetrate M.D. without her consent.
People v. Dillon (2009) 174 Cal.App.4th 1367 (Dillon) rejected a claim similar to
that made here. The codefendant in Dillon, Hall, was convicted of assault with the intent
to commit rape by a foreign object (id. at p. 1369) and claimed CALCRIM No. 890 was
insufficient because it failed to specify that the prosecution had the burden of proving a
lack of consent (id. at p. 1378). The Dillon court noted that section 220 required “not
only the specific intent to commit the underlying sexual act, but a specific intent to
commit that act without the consent of the victim. [Citations.]” (Dillon, at p. 1378.)
CALCRIM No. 890 did not specifically address this element but “specified that a
required element of the assault offense was that the defendant intended to commit the
crime of penetration of the genital opening of another by a foreign object.” (Id. at
13
p. 1379.) As in this case, the instruction referred the jury to the instruction which defined
that crime, CALCRIM No. 1045, which “in turn, specifies that the complainant’s lack of
consent is a necessary element of the crime of penetration of the genital opening of
another by force. A reasonable juror reviewing CALCRIM No. 1045, as instructed by
CALCRIM No. 890, would conclude that unless he acted against the will or consent of
the complainant, Hall could not have held the specific intent to commit the crime of
penetration of the genital opening of another by force, and therefore could not be guilty
of the lesser included assault offense as defined in CALCRIM No. 890.” (Ibid., fn.
omitted.)
The defense in Dillon also argued that because CALCRIM No. 1045 does not
define the intent requirement for forcible sexual penetration, “the jury would be unable to
determine from looking at CALCRIM No. 1045 whether the defendant had the intent to
commit that offense when he performed the act constituting the assault.” (Dillon, supra,
174 Cal.App.4th at p. 1380.) The Dillon court found that forcible sexual penetration was
a general intent crime, the mental state for that crime was not the specific intent to
commit it, and, relying on CALCRIM No. 1045, “jurors would reasonably conclude that
if the prosecution failed to prove the complainant’s lack of consent, the defendant could
not be guilty of assault with intent to commit forcible sexual penetration.” (Ibid.)
We begin our analysis of Dillon by noting one mistake in that decision, finding
forcible sexual penetration is a general intent crime. As a panel of this court has held,
Dillon “construes the concept of ‘specific intent’ too narrowly.” (People v. Zarate-
Castillo (2016) 244 Cal.App.4th 1161, 1168.) The crime of forcible sexual penetration
requires an intent to gain sexual gratification or arousal or to inflict abuse, which makes it
a specific intent crime. (Ibid.)
Although Dillon is wrong on this point, the mistake does not mean it reached the
wrong result or that it cannot inform us here. It correctly finds that CALCRIM Nos. 1045
and 890 must be read together, and that they require the jury to find a lack of consent
14
from the victim in order to convict a defendant under section 220. While Dillon did not
address whether these instructions required the jury to find defendant also had an intent to
commit the act without the victim’s consent, it noted this was an element of the crime and
found the two CALCRIM instructions appropriately instructed the jury on section 220.
We take the next logical step and find these two instructions also require the jury to find
defendant intended to commit the act without M.D.’s consent. CALCRIM No. 890
instructs the jury that one element of section 220 is that the defendant intended to commit
sexual penetration by force, as defined in section 220. The jury was also instructed with
CALCRIM No. 252 that forcible sexual penetration and any lesser included offense was a
specific intent crime requiring a “specific intent and/or mental state” and that “[t]he act
and the specific intent and/or mental state required are explained in the instruction or
allegation.” A reasonable juror therefore would understand that defendant could not be
convicted under section 220 unless he specifically intended to commit the section 289
offense, as defined in CALCRIM No. 1045. Jurors would thus reasonably conclude that
a conviction under section 220 required that it find defendant specifically intend to
commit every element of section 289, which includes an intent that the victim did not
consent to the act.4
C. Unreasonable Belief, Intoxication, and Consent
“Under People v. Mayberry (1975) 15 Cal.3d 143, a defendant who entertains both
a reasonable and bona fide belief that the victim voluntarily consents to engage in the
4 Defendant notes a federal district court granted habeas relief for Hall, the defendant in
Dillon, finding that it was an unreasonable application of federal law (the due process
right to be instructed on every element of an offense) to find the jury was adequately
instructed on the element of intent to act without the complainant’s consent. (Hall v.
Cullen (N.D. Cal. July 29, 2010, No. C 09-5299 PJH) 2010 U.S. Dist. LEXIS, 89946 at
*50.) We are not bound by decisions from the Ninth Circuit Court of Appeals, (People v.
Williams (1997) 16 Cal.4th 153, 190), and even less so by an unpublished decision from a
United States District Court, and, finally, we are also not persuaded by it.
15
sexual offense does not have the necessary wrongful intent to be convicted of the crime.
[Citations.] The rationale is simple: one who labors under a mistake of fact that negates
the existence of any criminal intent cannot be convicted of a crime. [Citations.]”
(People v. Castillo (1987) 193 Cal.App.3d 119, 124.) The so-called Mayberry defense
applies to section 220. (People v. May (1989) 213 Cal.App.3d 118, 128.)
Defendant contends the instruction on the consent defense was insufficient with
regard to the section 220 charge. He first notes that the CALCRIM No. 890 instruction
does not address the mistake of fact defense, and, while the incorporated CALCRIM
No. 1045 instruction addresses mistake of fact, it does so under the auspices of Mayberry,
which is limited to reasonable mistakes of fact. (See People v. Williams (1992) 4 Cal.4th
354, 360-361 [Mayberry defense limited to reasonable mistake that the complainant
consented].) Asserting that an unreasonable mistake of fact defense applies to specific
intent crimes, defendant finds the trial court’s instructions were insufficient because it did
not allow for unreasonable mistake of fact and by failing to inform the jury that voluntary
intoxication could negate the specific intent required for section 220.
Defense counsel agreed with the trial court that a reasonable belief in consent
instruction was not appropriate for the section 220 charge. This forfeits any claim that
the trial court had a sua sponte duty to instruct on the mistake of fact defense to this
charge. (See People v. Wader (1993) 5 Cal.4th 610, 657-658 [“When a defense attorney
makes a ‘conscious, deliberate tactical choice’ to forego a particular instruction, the
invited error doctrine bars an argument on appeal that the instruction was omitted in
error”].)5
5 This decision by counsel was reasonable, by making it potentially easier for the jury to
find defendant guilty on the lesser included offense rather than the charged crime, and
thereby making it feel less likely to confront an all or nothing choice of conviction on the
charged offense or total acquittal. Here, counsel was presented with a complaining
witness who reported the sexual assaults within a day of the attack, maintained an
16
Although counsel made no such choice regarding the defense of voluntary
intoxication, which applies to specific intent crimes (People v. Moore (2018)
19 Cal.App.5th 889, 893-894; § 29.4), the trial court was not under a duty to instruct on
this defense.
A defendant is entitled to an instruction on voluntary intoxication as a defense to a
specific intent crime “only when there is substantial evidence of the defendant’s
voluntary intoxication and the intoxication affected the defendant’s ‘actual formation of
specific intent.’ [Citations.]” (People v. Williams (1997) 16 Cal.4th 635, 677.) While
there was evidence M.D. was intoxicated, the evidence that defendant was intoxicated
and that it affected his ability to form the required specific intent is minimal. Defendant
did not testify, his one witness, Newland, who attended the party testified to M.D.’s
drinking and defendant’s, however he provided no evidence regarding defendant’s
alleged intoxication at any point near when the assault took place. The defense expert
testified that alcohol can make the sleep disorder parasomnia, an unconsciousness
defense, more likely, but gave no testimony regarding the effect of alcohol on forming
intent. In light of the lack of evidence that defendant’s intoxication affected his ability to
form the necessary specific intent, there was no sua sponte duty to instruct on
intoxication.
II
Aggravated Kidnapping
Defendant was convicted of kidnapping for extortion (§ 209, subd. (a)) under the
theory that M.D. was kidnapped to extort a form of property from her, namely inducing
essentially consistent story that was backed by some forensic evidence, and a defendant
who had a prior sexual assault conviction that was presented to the jury and who had tried
to kidnap the complainant to induce her not to testify. The very favorable results
achieved under these circumstances, acquittal on two of the three sex offense charges and
a lesser included offense conviction on the third, is ample evidence of counsel’s
competent representation here.
17
her not to testify against defendant in the sexual assault prosecution. Defendant contends
he cannot be convicted under this theory. We agree.
A. Theory of the Case and Motion to Acquit
Defendant was charged in count six with aggravated kidnapping, section 209,
subdivision (a) with the information stating in pertinent part: “in that said defendant did
unlawfully seize, confine, inveigle, entice, decoy, abduct, conceal, kidnap, and carry
away [M.D.] with the intent to hold and detain, and who did hold and detain, the said
[M.D.] for ransom, reward, extortion, money, and other valuable things, to wit, recanting
statement to defense investigator Angela Santos and/or promise not to testify against
Harpreet Singh in Sacramento Superior Court Docket 16FE018212.”
The trial court said at the instructional conference that it would not instruct on
simple kidnapping because it was not a lesser included offense of kidnapping for ransom
or reward and was at most a lesser related offense here. It issued a preliminary ruling
denying a defense section 1118.1 motion to acquit on count six, finding extortion was a
valid theory of liability, as M.D.’s recanting her statement that defendant assaulted her
was a thing of value. The prosecutor noted that the expanded definition of kidnapping,
which included anything of value, took effect after the kidnapping, but that M.D.’s
recantation and promise not to testify against defendant was a type of property covered
under the definition of extortion in effect the time of the kidnapping. Defense counsel
maintained that extortion did not include anything of value, and that the acquittal motion
should be granted “[b]ecause it’s always been our position this is a simple kidnapping.”
The trial court denied the motion, finding a jury could convict the defendant under an
extortion theory.
The trial court instructed the jury that extortion was obtaining a person’s property
with the person’s consent through the use of force or fear but did not define what
constituted property. It instructed the jury on false imprisonment (§ 237, subd. (a)) as a
lesser included offense but did not instruct on simple kidnapping.
18
The prosecutor argued to the jury that M.D.’s right to come to court and testify
was property for the purpose of extortion. In response, defense counsel conceded
defendant was guilty of attempted to dissuade a witness but did not commit aggravated
kidnapping.
B. Discussion
1. Insufficient Evidence of the Property Element
Kidnapping for the purpose of extortion is a felony punishable by life in prison.
(§ 209, subd. (a).) When the crime was committed in October 2017, extortion was
defined as “obtaining of property from another, with his consent, or the obtaining of an
official act of a public officer, induced by a wrongful use of force or fear, or under color
of official right.” (Former § 518, as amended by Stats. 1939, ch. 601, § 1.)6
Defendant contends the prosecution theory that M.D.’s right to testify is property
for the purposes of kidnapping for extortion was wrong as a matter of law. He contends
the trial court’s ruling that the prosecution could proceed under this theory erred as a
matter of statutory interpretation and deprived him of his due process right to fair
warning as to what the law prohibits or requires.
“The power to define crimes and fix penalties is vested in the Legislature.
[Citations.] Courts may not create a criminal offense by enlarging a statute or giving its
terms false or unusual meanings. Penal statutes may not be made to reach beyond their
plain intent, covering only crimes coming clearly within the statutory language. These
laws must be construed according to the fair import of its terms. [Citations.]” (People v.
Kozlowski (2002) 96 Cal.App.4th 853, 865 (Kozlowski).)
6 The current definition of extortion went into effect on January 1, 2018, and reads in
pertinent part: “Extortion is the obtaining of property or other consideration from
another, with his or her consent, or the obtaining of an official act of a public officer,
induced by a wrongful use of force or fear, or under color of official right.” (§ 518, subd.
(a); Stats. 2017, ch. 518, § 1.)
19
Section 7 defines property to include money, goods, chattels, things in action and
evidences of debt (§ 7, subds. (10), (12)) but the definition of property is not limited to
the items listed in section 7. (People v. Leyvas (1946) 73 Cal.App.2d 863, 865.)
Kozlowski addressed whether a bank card personal identification number (PIN) code was
property for the purposes of the extortion statute. (Kozlowski, supra, 96 Cal.App.4th at
pp. 856, 866.) Although the Court of Appeal found that a PIN was property under the
extortion statute (id. at p. 856), Kozlowski illustrated the limits of what is property, and
we find that testifying as a complaining witness is beyond that limit.
Kozlowski began by noting that property and larceny cases were relevant to
defining property because those offenses were related to the crime of extortion; at times
courts found it difficult to distinguish between them. (Kozlowski, supra, 96 Cal.App.4th
at p. 866; see People v. Torres (1995) 33 Cal.App.4th 37, 50; People v. Hesslink (1985)
167 Cal.App.3d 781, 790.) Theft cases define property “as the exclusive right to use or
possess a thing or the exclusive ownership of a thing. [Citations.]” (Kozlowski, at
p. 866.) The term “property” was “all-embracing, including every intangible benefit and
prerogative susceptible of possession or disposition. [Citation.] The right to own
property implies the right to possess or use a thing to the exclusion of others. [Citation.]”
(Ibid.)
The Court of Appeal took judicial notice that a PIN code was more valuable if
kept exclusive. (Kozlowski, supra, 96 Cal.App.4th at p. 867.) Accordingly, “it may
reasonably be said that a PIN code is property because it implies the right to use that
access code—and to access the funds in the related bank account by means of that code.
[Citation.] Operating as it does as a means of account access, a PIN code can be
characterized as intangible property. [Citation.]” (Ibid.) This conclusion was reinforced
by a case finding making a copy of a house key was theft because it deprived the owner
of the exclusive use of the key to enter the house. (Id. at pp. 867-869.)
20
“ ‘ An essential element of individual property is the legal right to exclude others
from enjoying it. If the property is private, the right of exclusion may be absolute; if the
property is affected with a public interest, the right of exclusion is qualified.’ ” (Desny v.
Wilder (1956) 46 Cal.2d 715, 731, quoting International News Service v. Associated
Press (1918) 248 U.S. 215, 250 [63 L.Ed. 211, 225] (Brandeis, J. dissenting).)
Whether to testify is not within the control of a crime victim or alleged crime
victim. Enforcing the state’s laws is the prerogative of the Attorney General. (Cal.
Const., art. V, § 13) “The district attorney is the public prosecutor, except as otherwise
provided by law. The public prosecutor shall attend the courts, and within his or her
discretion shall initiate and conduct on behalf of the people all prosecutions for public
offenses.” (Gov. Code, § 26500.) Thus, the prosecutor has sole discretion on who to
charge, what charges to pursue, and what punishment to seek. (People v. Sidener (1962)
58 Cal.2d 645, 650, disapproved on other grounds in People v. Tenorio (1970) 3 Cal.3d
89, 91.) “No private citizen, however personally aggrieved, may institute criminal
proceedings independently [citation], and the prosecutor’s own discretion is not subject to
judicial control at the behest of persons other than the accused. [Citations.]” (Dix v.
Superior Court (1991) 53 Cal.3d 442, 451.)
The prosecutor’s power extends to the conduct of criminal trials. “Exclusive
prosecutorial discretion must also extend to the conduct of a criminal action once
commenced. ‘In conducting a trial, a prosecutor is bound only by the general rules of law
and professional ethics that bind all counsel.’ [Citation.] The prosecutor has the
responsibility to decide in the public interest whether to seek, oppose, accept, or
challenge judicial actions and rulings. These decisions, too, go beyond safety and redress
for an individual victim; they involve ‘the complex considerations necessary for the
effective and efficient administration of law enforcement.’ There is no place in this
scheme for intervention by a victim pursuing personal concerns about the case.” (Dix v.
Superior Court, supra, 53 Cal.3d at p. 452.)
21
In the context of a criminal prosecution, M.D.’s decision to accuse defendant of
the sexual assaults and her ability to testify against him in a criminal trial has no value
unless the prosecutor decides to file charges against defendant and, subject to the rules of
evidence as determined by the trial court, call her as a witness. Since the complaint and
testimony are subject to the discretion of another, it is not in M.D.’s exclusive dominion
and control and accordingly is not property in the context of the extortion statute. The
only theory of guilt for the section 209 charge was kidnapping through extortion and the
only evidence of the property element of extortion was M.D.’s testifying against
defendant; since there is no proof as to an element of the offense, we conclude there is
insufficient evidence to support the section 209 conviction.
2. Lesser Included Offense
An appellate court has the power to modify a conviction to a lesser included
offense if there is insufficient evidence of the greater but sufficient evidence to support
conviction on the lesser offense. (People v. Navarro (2007) 40 Cal.4th 668, 677.)
“The test for determining whether there is a necessarily included offense is
whether one offense cannot be committed without necessarily committing another
offense; the latter is a necessarily included offense. [Citation.] ‘An offense is necessarily
included in the charged offense if (1) under the statutory definition of the charged offense
the charged offense cannot be committed without committing the lesser offense, or
(2) the charging allegations of the accusatory pleading include language describing the
offense in such a way that if the charged offense was committed as specified, the lesser
offense was necessarily committed.’ [Citations.]” (People v. Cortez (2018)
24 Cal.App.5th 807, 816-817.)
22
Simple kidnapping (§ 207)7 is not a lesser included offense of the crime here,
section 209, subdivision (a) under the statutory definition test “since the latter can be
accomplished without asportation and the former cannot.” (People v. Greenberger
(1997) 58 Cal.App.4th 298, 368, fn. 56.) Whether a crime is a lesser included offense
under the accusatory pleading test is determined by examining both the pleading and the
evidence adduced at the preliminary hearing. (See People v. Ortega (2015)
240 Cal.App.4th 956, 967 [“The evidence adduced at the preliminary hearing must be
considered in applying the accusatory pleading test when the specific conduct supporting
a holding order establishes that the charged offense necessarily encompasses a lesser
offense”].)
The asportation required for simple kidnapping is moving the victim must be
“substantial in character,” rather than slight or trivial. (People v. Stanworth (1974)
11 Cal.3d 588, 601.) In making that determination, the trier of fact may consider factors
other than the distance moved. (People v. Martinez (1999) 20 Cal.4th 225, 235,
disapproved on other grounds in People v. Fontenot (2019) 8 Cal.5th 57, 70.) This
includes “some consideration of the ‘scope and nature’ of the movement or changed
environment, and any increased risk of harm.” (Martinez, at p. 236.)
The information alleged that, with respect to the conspiracy to dissuade a witness
(M.D.) charge in count four, one of the overt acts was “that they forced her into a car at
gunpoint, covered her head with a ski mask, and threaten to harm her and rape her person
if she did not provide a re-canting statement to defense investigator Angela Santos
regarding the rape described in Sacramento Superior Court Docket 16FE018212.” The
7 Section 207, subdivision (a) defines simple kidnapping as: “Every person who
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 country, state, or
county, or into another part of the same county, is guilty of kidnapping.”
23
evidence adduced at the preliminary hearing showed M.D. was walking across the street
towards her apartment when she was forced into the car and driven 30 to 45 minutes
before she was released. This was ample asportation for the purpose of simple
kidnapping. It was therefore a lesser included offense of the section 209 charge under the
accusatory pleading test. Since sufficient evidence supports simple kidnapping, we shall
modify defendant’s conviction to that crime.8
DISPOSITION
The conviction for kidnapping for extortion in count six is modified to simple
kidnapping (§ 207, subd. (a)) and the matter is remanded for resentencing. In all other
respects, the judgment is affirmed.
/s/ ,
BLEASE, J.
We concur:
/s/ ,
RAYE, P. J.
/s/ ,
HOCH, J.
8 Our resolution of this contention makes it unnecessary for us to determine defendant’s
remaining contentions regarding the trial court’s duty to instruct on simple kidnapping as
a lesser included offense or to instruct on the definition of property in the context of
kidnapping for extortion.
24