People v. Handley CA4/3

Filed 3/25/21 P. v. Handley CA4/3
Opinion following transfer from Supreme Court
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication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
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent, G056608
v. (Super. Ct. No. 13CF3394)
KYLE SHIRAKAWA HANDLEY, OPINION
Defendant and Appellant.
Appeal from a judgment of the Superior Court of Orange County, Gregg
L. Prickett, Judge. Affirmed.
Cliff Gardner and Daniel J. Buffington, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Susan Sullivan Pithey, Assistant Attorney General, David E. Madeo
and Blythe J. Leszkay, Deputy Attorneys General, for Plaintiff and Respondent.
Appellant Kyle Shirakawa Handley was convicted of multiple crimes for
participating in a brutal kidnapping scheme that resulted in one of the victims being
tortured and sexually mutilated. On appeal, he argues 1) he did not receive adequate
notice of the charges, 2) the jury was improperly instructed on how to view accomplice
testimony, 3) he was denied due process by virtue of a two-week recess that occurred
1
during the trial, and 4) his sentence violates Penal Code section 654. In an opinion filed
early last year, we rejected appellant’s arguments and affirmed the judgment against him.
(People v. Handley (Jan. 6, 2020, G056608) [nonpub. opn.] (Handley I).)
The California Supreme Court granted appellant’s petition for review on
the notice issue and transferred the case back to us with directions to vacate our opinion
and reconsider that issue in light of its recent decision in People v. Anderson (2020) 9
Cal.5th 946 (Anderson). Having examined Anderson, and the parties’ supplemental
briefing about its applicability in this case, we conclude appellant was given sufficient
notice of the charges and again affirm the judgment.
FACTS
Appellant and the targeted victim, Michael S., were not strangers. In 2011,
appellant was a marijuana vendor, and Michael co-owned two medical marijuana
dispensaries in Orange County. Michael purchased marijuana from appellant for his
dispensaries, and the two became friends. Their friendship was on full display in May
2012, when appellant joined Michael and his other friends in Las Vegas for a weekend
getaway. During the trip, Michael freely spent thousands of dollars on food, lodging and
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entertainment. And, as was his wont, he paid for everything with cash.
Appellant appeared to have a good time in Vegas. But after the trip, he
suddenly stopped communicating and doing business with Michael. Although Michael
1
All further statutory references are to the Penal Code.
2
Due to the federal prohibition on marijuana sales, credit card companies and banks were unwilling
to do business with Michael’s dispensaries. Consequently, Michael took in a lot of cash he had nowhere to deposit.
2
tried contacting him on several occasions, appellant never returned his calls or came by
his dispensaries, as he had done in the past. Appellant disappeared from Michael’s life,
both professionally and personally, for no apparent reason.
At the time, Michael really didn’t give that development much thought.
His dispensaries were doing well, and he was happily renting a room in a house on the
Balboa Peninsula in Newport Beach. He certainly did not foresee the dark events that
transpired in his life on October 2, 2012, roughly five months from the last time he had
seen or heard from appellant.
That evening, Michael was awakened in the middle of the night by two men
who were pointing a flashlight and a shotgun in his face. When Michael reached for the
gun, the men beat and choked him, causing him to pass out momentarily. The men
bound Michael’s feet together and tied his hands behind his back with zip ties. They also
blindfolded him and taped his mouth shut. Then they dragged him down the stairs and
placed him in a hallway next to his roommate Mary B., who, like Michael, was awakened
at gunpoint, tied up, gagged and blindfolded by the intruders. However, unlike Michael,
Mary was not harmed in any other way. To the contrary, they assured her, “This isn’t
about you. Just be quiet. Don’t fight . . . and you’ll be alright.”
Mary noticed the men spoke with a fake Spanish accent, as if they were
trying to disguise their voices. She also surmised there were three intruders in all because
while one of them stood guard over her and Michael in the hallway, she heard two others
ransacking the residence upstairs. After about 15 minutes, those two returned downstairs
and asked Michael, “Where’s the money?” Michael said he had $2,000 hidden in a sock
in his room, but the men were not interested in that. They told Michael they wanted a
million dollars from him. When Michael said he did not have that much money, they
carried him and Mary to a van outside and took them to the Mojave Desert.
Along the way, Michael was subjected to horrific abuse. His captors
thought he had buried a million dollars somewhere in the desert, and in order to get him
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to tell them where it was, they repeatedly stomped him with their boots, beat him with a
rubber hose, shocked him with a taser, and burned him with a blowtorch. Michael tried
to explain to them that there was no million dollars, but every time he did so, they abused
him some more.
Although the men did not harm Mary, she was in the back of the van with
Michael during the entire trip. In fact, she was so close to him that when his legs
twitched from being tasered, they would sometimes come into contact with her. The men
beat and berated Michael whenever that happened. Even though his leg movements were
involuntary, they used every excuse they could find to abuse him. All told, the tasering,
burning and beating went on for about two and a half hours before the van finally pulled
over on a deserted road out near Rosamond.
Michael and Mary were still tied up and blindfolded when the men carried
them out of the van and put them down on the desert sand. Michael continued to insist he
knew nothing about any million dollars. Eventually, the men gave up on the money and
told Michael that if they couldn’t get the million dollars, then they “want[ed] his dick.”
They proceeded to hold Michael down, lower his shorts and put a zip tie around the base
of his penis. Then one of the men took out a knife and began cutting off Michael’s penis.
As he was doing so, the man chimed out the words “back and forth, back and forth” in a
sing-songy manner, as if Michael’s suffering was a joke. When he finished the deed, he
and his companions doused Michael with bleach. Then he turned to Mary and told her he
was going to toss his knife into the nearby bushes. He said if she could find the knife and
cut herself free, it would be her “lucky day.” He then tossed the knife, told Mary to count
to 100, and left with his cohorts in the van.
Mary managed to hitch up her blindfold and retrieve the knife, just as the
desert sun was beginning to appear on the horizon. She then walked about a mile to the
main road and flagged down a patrol officer from the Kern County Sheriff’s Department.
Mary directed the officer back to where Michael was located. When they arrived,
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Michael was lying in the dirt, writhing in pain. Although he survived the ordeal, he
suffered burns and bruises all over his body, and despite a thorough search of the area, his
severed penis was never found.
During the ensuing investigation, Michael told police he had no known
enemies and could not think of anyone who would want to harm him. But when the
police canvassed Michael’s neighborhood in search of clues, they got a break. It turned
out that on the afternoon of the kidnapping, one of Michael’s neighbors saw a white
pickup truck in the alley near Michael’s house. There were three men near the truck, one
of whom was wearing a hardhat. They extended a ladder onto Michael’s house, as if they
were there to do construction work, but they had no equipment and there was no
construction going on in the area. Thinking this suspicious, the neighbor jotted down the
truck’s license number. Upon running the number, investigators learned the truck was
registered to appellant.
At that time, appellant was living in Fountain Valley. When the police
searched his home, they found a bleach-stained shirt and zip ties resembling those used in
the kidnapping. They also noticed a very strong smell of bleach emanating from
appellant’s truck and found a glove in the passenger compartment of the vehicle. The
glove contained DNA from appellant’s friend and business associate Hossein Nayeri, and
DNA belonging to appellant’s high school buddy Ryan Kevorkian was found on one of
the zip ties.
Upon investigating Kevorkian, the police learned his wife Naomi had
worked with appellant and Nayeri in their marijuana business. In the months leading up
to the kidnapping, she enlisted a co-worker to create a phony email account that was used
to purchase tracking and surveillance equipment that was sent to appellant’s home. In
addition, she purchased a shotgun and rented the van that was used in the kidnapping.
After the police arrested appellant, Nayeri fled to Iran, leaving behind his
wife Cortney Shegerian. Shegerian was not cooperative when investigators initially
5
contacted her. However, she eventually agreed to tell the truth and testify at appellant’s
trial in exchange for a grant of immunity. She also worked with law enforcement to lure
Nayeri out of Iran to Europe so he could be extradited back to the United States.
Appellant was charged with two counts of aggravated kidnapping and one
count each of aggravated mayhem and torture. (§§ 209, subd. (a), 205 & 206.) It was
also alleged that appellant inflicted great bodily injury on Michael during the torture
offense. (§ 12022.7.) Nayeri, Kevorkian and Naomi faced similar charges, but the trial
court denied the prosecution’s motion for consolidation, so appellant was tried separately.
At his trial, Shegerian testified about her relationship with Nayeri and the
scheme to kidnap Michael. She said Nayeri was very abusive to her and also very
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cunning. She also said Nayeri and appellant were very close friends. Not only did they
grow marijuana together, appellant lived with Nayeri and Shegerian in Newport Beach in
the fall of 2011. However, by the spring of 2012, the year the kidnapping occurred,
appellant had moved to Fountain Valley, and Nayeri was spending most of his time
conducting surveillance activities.
The primary focus of those activities was Michael. Using high-tech
cameras and sophisticated GPS equipment, Nayeri monitored Michael’s car, home and
businesses, as well as his girlfriend and his parents. Nayeri also had Shegerian look up
Michael on the internet and talked to her about how they could go about poisoning his
dog.
In September 2012, a few weeks before the kidnapping, Nayeri was
monitoring Michael on his home computer while Michael was in the desert exploring a
potential mining investment. Nayeri asked Shegerian, “Why would someone be circling
out in the desert?” He then suggested that would be a great place to bury cash.
3
Cunning enough to break out of the Orange County Jail while awaiting trial. He was on the lam
for about a week before authorities apprehended him.
6
Around this same time period, Shegerian saw Nayeri and appellant
laughing one day while they were playing around with a blowtorch in Nayeri’s garage.
In addition to the blowtorch, Nayeri had a hardhat that he was scuffing up on the ground
to make it look worn.
At the end of September, as the kidnapping date grew closer, Nayeri had
Shegerian purchase four disposable “burner” phones. He gave one of the phones to
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Shegerian, one to appellant, and he kept one for himself. When appellant had trouble
activating his phone, Nayeri had Shegerian explain to him how to do it.
On the night of the kidnapping, Nayeri told Shegerian to use his iPhone in
the vicinity of their home, in an apparent attempt to create an alibi. She didn’t hear from
him again until eight o’clock the following morning. Calling from his burner phone, he
instructed Shegerian to put money in a meter where appellant’s truck was parked on the
Balboa Peninsula. Shegerian did as told. At Nayeri’s behest, she also bought four more
burner phones and gave them to Nayeri that evening.
According to Shegerian, Nayeri was frantic after appellant was arrested.
After destroying his phones, computers and surveillance equipment, he took a one-way
flight to his native Iran. During the first few months he was there, he convinced
Shegerian to send him money and lie to the police about his involvement in the case.
However, as noted above, Shegerian eventually helped authorities capture Nayeri in
2013.
Although Shegerian was an important witness for the prosecution, she was
not involved in the actual kidnapping, and thus her testimony did not directly implicate
appellant in the alleged offenses. However, based on all the evidence that was presented,
the prosecution theorized appellant, Nayeri and Kevorkian all worked together to carry
out the kidnapping scheme. In particular, the prosecution maintained Nayeri was the
4
Shegerian didn’t know what happened to the fourth phone, but the prosecution theorized Nayeri
gave it to Kevorkian so they could communicate with one another during the kidnapping.
7
group’s leader, Kevorkian provided muscle for the operation, and appellant played an
integral role as the driver of the van. Of course, given his prior relationship with
Michael, appellant also knew Michael was involved in a lucrative, all-cash business. The
prosecution argued this provided defendants with a compelling financial motive to
commit the alleged offenses.
At trial, appellant did not present any evidence in his defense, nor did he
dispute the prosecution’s portrayal of Michael and Mary as the victims of a brutal
kidnapping scheme. Rather, he claimed there was insufficient evidence tying him to that
scheme.
Shortly before the parties rested, the charges against appellant were
modified in two respects. On the prosecution’s motion, the section 12022.7 great bodily
injury allegation charged in connection with the torture count was dismissed. In addition,
two special allegations were orally added to the aggravated kidnapping charges, namely
that Michael suffered bodily harm and that Mary was subjected to a substantial likelihood
of death. Appellant did not object to the inclusion of those special allegations, which
were explained in the jury instructions, discussed in closing argument, and included in
the verdict forms.
In the end, the jury found appellant guilty of the four substantive charges,
and it found the two newly-added special allegations attendant to the aggravated
kidnapping charges to be true. In light of those special allegations, the trial court
sentenced appellant to life in prison without parole (LWOP) on the aggravated
kidnapping counts. In addition, the court imposed consecutive terms of seven years to
life on the aggravated mayhem and torture counts. This appeal followed.
Notice of the Charges
Appellant contends the jury’s true findings on the special allegations added
to the aggravated kidnapping counts, as well as the LWOP sentence he received on each
of those counts, must be reversed on due process grounds because he was never formally
8
charged with those allegations. The Attorney General disagrees. In his view, appellant
received sufficient notice that he could be sentenced to LWOP if he was convicted of
aggravated kidnapping. We agree with the Attorney General that appellant’s due process
rights were adequately protected in this case.
Appellant’s claim requires us to examine the crime of aggravated
kidnapping and the manner in which it was alleged in this case. As noted above,
appellant was charged with two counts of aggravated kidnapping in violation of section
209, subdivision (a) (section 209(a)). That provision states that anyone who kidnaps
another person for ransom, reward, extortion or to exact money from another person “is
guilty of a felony, and upon conviction thereof, shall be punished by imprisonment in the
state prison for life without possibility of parole in cases in which any person subjected to
any such act suffers death or bodily harm, or is intentionally confined in a manner which
exposes that person to a substantial likelihood of death, or shall be punished by
imprisonment in the state prison for life with the possibility of parole in cases where no
such person suffers death or bodily harm.” (§ 209(a).)
In our original opinion, we characterized this statute as containing two
distinct criminal offenses: 1) Aggravated kidnapping for ransom, punishable by LWOP,
when the victim suffers death or bodily harm or is subjected to a substantial likelihood of
death; and 2) simple kidnapping for ransom, punishable by life in prison with the
possibility of parole, in all other cases. (Handley I, supra, at p. 9.) That characterization
is accurate when viewed from the standpoint of punishment. However, at its core,
section 209(a) actually defines but one crime, aggravated kidnapping.
The reason it is called aggravated kidnapping is that, unlike simple
kidnapping, which is a general intent offense that arises independently of any other
criminal objective, aggravated kidnapping is committed for a specific purpose, such as
obtaining ransom money. (People v. Bell (2009) 179 Cal.App.4th 428, 435, fn. 2.)
Whether the victim dies, suffers bodily harm or is subjected to a substantial likelihood of
9
death are special factors pertaining to the issue of punishment, but they do not affect the
singular nature of the underlying offense. (People v. Britton (1936) 6 Cal.2d 1, 4-5
(Britton).)
In this case, the complaint and information alleged appellant committed
aggravated kidnapping in violation section 209(a) by kidnapping Michael (count 1) and
Mary (count 2) for ransom, reward, extortion and to exact money from another person.
The prosecution did not allege any special sentencing factors related to the issue of
punishment. However, those factors were openly discussed in connection with the
proposed jury instructions and verdict forms.
One of the jury instructions proposed by the prosecution was CALCRIM
No. 1202, the standard instruction on aggravated kidnapping. CALCRIM No. 1202 sets
forth the essential elements of that offense. In addition, the instruction contains a
paragraph entitled, “Sentencing Factor,” which states: “If you find the defendant guilty
of [aggravated kidnapping], you must then decide whether the People have proved the
additional allegation that [the victim died/suffered bodily harm or was confined in a way
that created a substantial likelihood of death].” (CALCRIM No. 1202.)
During a jury instruction conference that occurred toward the end of the
prosecution’s case, defense counsel was asked if he had any objection to the court giving
CALCRIM No. 1202, and he said no. He also informed the court he was not requesting
instructions on any lesser included offenses to aggravated kidnapping. Since his theory
of the case was that appellant was not actually involved in the alleged kidnappings, he
felt there was no need for any such instructions, and appellant said he agreed with that
decision.
The discussion on jury instructions continued the following day when the
judge met with counsel and appellant shortly before the parties rested. At the outset of
that meeting, the judge stated, “Counts 1 and 2, the 209 contains a special, additional
factor if great bodily injury was inflicted. The People also allege a 12022.7, great bodily
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injury, sentencing enhancement, as to [the torture charge in] count 4, which I understand
they have a pending motion regarding.”
The court’s description of the special additional factor in section 209(a)
was not entirely accurate. As explained above, that provision uses the term “bodily
harm,” not “great bodily injury,” which is the gravamen of the sentence enhancement
provided in section 12022.7. The court’s mistake turned out to be contagious because, as
shown below, the prosecutor also conflated those two terms at one point during the
meeting.
Continuing, the judge stated he “prepared jury instructions asking the jury
to make findings on both the substantive crime [of aggravated kidnapping] and then
whether or not that crime, if committed, great bodily injury was inflicted. [¶] The way
[CALCRIM No. 1202] reads, it should be a special finding, but it’s not technically a
sentencing enhancement and the like.” Asked if he had any objection to the court
instructing the jury in that manner, defense counsel said no.
With that, the prosecution moved to dismiss the section 12022.7 great
bodily injury enhancement allegation attached to count 4, the torture count. The judge
responded, “That request is granted and the court will then remove the great bodily injury
jury instruction from that [count] making sure that it’s still contained in counts 1 and 2[.]”
The following discussion then took place:
“[Prosecutor Brown]: . . . In regards to the second count involving Mary
. . ., if the court could take a look at the actual verdict that the People drafted in regards to
count 2, there is kind of an ‘or’ within [section 209(a), of] the Penal Code. []There is gbi
inflicted on the person [‘]or’ and our theory of liability is the ‘or’ part. [¶] So I know the
court just drafted a special instruction regarding that finding. It’s a little different with
regards to our theory on Mary[.]
“[Prosecutor Murphy]: We apologize for the lateness, Your Honor. We
were actually dealing with this up until last night.
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“The Court: Noted. [¶] So your theory is intent to confine [in] a manner []
that exposes [Mary] to a substantial likelihood of death?
“[Prosecutor Murphy]: Yes.”
The judge asked defense counsel if he had any objection to the prosecution
pursuing that theory, and his answer was no. The judge then told the parties he would be
modifying the jury instruction as to count 2 to comport with that theory.
Alas, the instruction on the aggravated kidnapping charge in count 2
informed the jurors that if they found appellant guilty of that offense, they must decide
whether the prosecution proved the additional allegation that Mary was confined in a
manner that subjected her to a substantial likelihood of death. And the instruction on
count 1 stated that if the jurors found appellant guilty of aggravated kidnapping in that
count, they must decide whether the prosecution proved the additional allegation that
Michael suffered bodily harm.
During closing arguments, the prosecutor argued there was ample evidence
to support those allegations, and defense counsel did not disagree. Defense counsel
instead took the position that appellant had nothing to do with the kidnapping plan that
led to Michael suffering bodily harm and Mary being exposed to a substantial likelihood
of death.
The jury rejected defense counsel’s argument. It not only found appellant
guilty of aggravated kidnapping, as alleged in counts 1 and 2, it also found true the
special allegations of bodily harm as to Michael and substantial likelihood of death as to
Mary. The question we must decide is whether this verdict, and appellant’s subsequent
sentence for LWOP on those counts, violated due process because appellant was never
formally charged with those special allegations. For the reasons explained below, we do
not believe appellant’s due process rights were violated in this case.
Due process is an integral component of our criminal justice system.
Among other things, it requires that an accused be afforded “‘fair notice of the charges
12
against him in order that he may have a reasonable opportunity properly to prepare a
defense and avoid unfair surprise at trial.’ [Citation.]” (People v. Toro (1989) 47 Cal.3d
966, 973, disapproved on other grounds in People v. Guiuan (1998) 18 Cal.4th 558, 568,
fn. 3.; see also Anderson, supra, 9 Cal.5th at p. 964 [proper notice allows the defendant
“to make informed decisions about the case, including whether to plead guilty, how to
allocate investigatory resources, and what strategy to deploy at trial.”].) This notice
requirement extends to both substantive offenses and sentence enhancements alike. As
our Supreme Court recently explained in Anderson, “A defendant has the ‘right to fair
notice of the specific enhancement allegations that will be invoked to increase the
punishment for his crimes.’ [Citation.]” (Id. at p. 953.) Appellant was entitled to notice
that would allow him to investigate and strategize, and Anderson illuminates that
entitlement.
In Anderson, the defendant was charged with murder and multiple counts of
robbery. In connection with the murder charge, the information alleged a sentence
enhancement that Anderson was vicariously liable for a codefendant’s injurious discharge
of a firearm. (§ 12022.53, subds. (d), (e).) That enhancement, which we will refer to as
the vicarious discharge enhancement, carried a mandatory sentence of 25 years to life.
(Ibid.) In contrast, the robbery counts contained less serious allegations that Anderson
personally used a firearm. (§§ 12022.53, subd. (b), 12022.5, subd. (a).) Even though the
vicarious discharge enhancement was not alleged as to the robbery counts, the jury
instructions and verdict forms permitted the jury to return findings that would support the
enhancement with respect to each of those counts. And, ultimately, that is what it did.
Based on the jury’s true findings on the uncharged vicarious discharge allegations,
Anderson’s sentence was enhanced 125 years above and beyond what the original
charges would have otherwise permitted. (Anderson, supra, 9 Cal.5th at pp. 950-952.)
In finding this result violated due process, the Supreme Court made two
rulings that are relevant to our case. First, the court found the accusatory pleadings failed
13
to provide Anderson with sufficient notice the vicarious discharge enhancements could
be applied to the robbery counts. Second, the court held the accusatory pleadings were
not informally amended so as to provide Anderson with adequate notice of this
possibility. Therefore, his sentence on the robbery counts could not be increased by
virtue of the vicarious discharge enhancements. (Anderson, supra, 9 Cal.5th at pp. 954-
960.)
The present case is distinguishable from Anderson in both of those key
respects. The nature of the charges appellant faced, and the way the proceedings
unfolded near the end of his trial, both lead us to conclude that, unlike Anderson,
appellant received adequate notice of the sentence he received.
The dispute in Anderson was whether the punishment for Anderson’s
robbery offenses could be enhanced by virtue of the fact he vicariously discharged a
firearm in connection with that offense. In finding the accusatory pleading failed to
provide Anderson with adequate notice of this possibility, the Supreme Court stated,
“Fair notice requires that every sentence enhancement be pleaded in connection with
every count as to which it is imposed. [Citation.]” (Anderson, supra, 9 Cal.5th at pp.
956-957.) Thus, it did not matter that the vicarious discharge enhancement was alleged
as to the murder count. Because that enhancement was not alleged with respect to the
robbery counts, Anderson had no way of knowing he faced five additional 25-year-to-life
enhancements on those counts. (Ibid.) In fact, because the vicarious discharge
enhancement was alleged only on the murder count, Anderson was “entitled to assume
the prosecution made a discretionary choice not to pursue the enhancement on the
[robbery counts], and to rely on that choice in making decisions such as whether to plead
guilty or proceed to trial. [Citation.]” (Id. at p. 956.)
This reasoning clearly does not apply to the present case. The fundamental
reason Anderson was blindsided by the vicarious discharge enhancements is that they had
no inherent relationship to the underlying crime of robbery. Standing alone, that offense
14
does not contemplate increased punishment for vicarious discharge of a firearm. (§ 211.)
Therefore, from a charging perspective, the only way Anderson could have known he
was looking at additional prison time on his robbery counts for vicariously discharging a
firearm was if the prosecution alleged a separate and distinct sentencing enhancement
with respect to those counts.
Here, in contrast, the underlying crime of aggravated kidnapping and the
relevant enhancement factors are not set apart from each other in different provisions of
the Penal Code. Rather, they are embedded in a single statute, section 209(a). Indeed,
that statute plainly states that if the victim of an aggravated kidnapping dies, suffers
bodily harm or is exposed to a substantial likelihood of death, the defendant must be
sentenced to LWOP. (§ 209(a).) As our Supreme Court explained long ago in Britton,
supra, 6 Cal.2d 1, this close relationship between crime and punishment obviates the
need to charge the sentencing factors in the accusatory pleading when a violation of
section 209 is alleged.
Britton is closely analogous to our case. As here, the defendant in Britton
argued his LWOP sentence for aggravated kidnapping under section 209 was unlawful
because, although the evidence amply proved it, the accusatory pleading did not formally
allege the victim suffered bodily harm; instead, it simply alleged the requisite elements of
aggravated kidnapping. The Supreme Court found nothing wrong with this charging
method. It ruled, “A charge in the language of [section 209] that the accused had
kidnapped his victim [for one of the reasons proscribed in the statute] apprises the
accused of what he will be expected to meet and of the several punishments prescribed
therefor, any one of which, upon conviction, may be imposed upon him.” (Britton,
supra, 6 Cal.2d at p. 5.) Therefore, it was immaterial that the accusatory pleading failed
to allege the particular sentencing factor that was used to increase the defendant’s
punishment from life to LWOP. (Ibid.)
15
In rejecting the defendant’s lack-of-notice argument in Britton, the
Supreme Court stated, “It is well settled in this state that an indictment or information
need not allege the particular mode or means employed in the commission of an offense,
except when of the essence thereof. [Citation.] In other words, particulars as to manner,
means, place or circumstances need not in general be added to the statutory definition.
[Citations.] The indictment or information need only charge the essential elements of the
statutory offense. It then fairly apprises the defendant of what he is to meet at the trial.”
(Britton, supra, 6 Cal.2d at p. 5.)
Appellant admits Britton fatally undermines his due process argument. He
also acknowledges Britton has never been expressly overruled by any subsequent
appellate court decision. However, he contends Britton was overruled sub silentio by the
United States Supreme Court’s decision in Apprendi v. New Jersey (2000) 530 U.S. 466(Apprendi) and its progeny. We are not persuaded.
Apprendi was not a notice case. Instead, it considered whether the rights to
trial by jury and proof beyond a reasonable doubt extend to facts that can be used to
enhance a defendant’s punishment above the statutory maximum. (Apprendi, supra, 530
U.S. at p. 469.) In concluding they did, the high court expressly declined to take up the
issue of whether such facts must be included in the indictment. (Id. at p. 477, fn. 3.) Yet,
as appellant correctly points out, the Apprendi court did state, “‘[A]ny fact (other than
prior conviction) that increases the maximum penalty for a crime must be charged in an
indictment, submitted to a jury, and proven beyond a reasonable doubt.’” (Id. at p. 476,
quoting Jones v. United States (1999) 526 U.S. 227, 243, fn. 6, italics added.)
Despite the italicized wording, however, our own Supreme Court has
recognized the core reasoning and holding of Apprendi focus solely on the proof
requirements for sentencing factors. (People v. Contreras (2013) 58 Cal.4th 123, 148-
149.) As such, “‘[i]t is highly doubtful that Apprendi has any effect whatever on
pleading requirements.’” (Id. at p. 149, italics added, quoting People v. Famalaro (2011)
16
52 Cal.4th 1, 37 [general allegation of murder provides fair notice of conviction and
punishment for first degree murder; Apprendi does not require the prosecution to allege
the specific facts necessary to elevate a second degree murder to first degree murder]; see
also People v. Houston (2012) 54 Cal.4th 1186, 1227 [finding Apprendi had no bearing
on the defendant’s due process/fair notice claim].) “Highly doubtful” seems to us a
pretty clear signpost.
In urging us not to follow Britton, appellant is not only asking us to ignore
a time-tested California Supreme Court decision that has never been openly questioned or
criticized by any court, he is asking us to ignore the California Supreme Court’s
interpretation of the United States Supreme Court’s opinion in Apprendi. However, as an
intermediate appellate court, we must follow decisions of the California Supreme Court
(Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455), and we must
follow the California Supreme Court’s interpretation of United States Supreme Court
cases. (People v. Madrid (1992) 7 Cal.App.4th 1888, 1895.)
Given the limited applicability the California Supreme Court has accorded
Apprendi, we are not convinced that decision undermines the strength of Britton in any
respect. To the contrary, we believe Britton is still good law and is controlling in this
case. Pursuant to that decision, we conclude the fact appellant was charged with the
essential elements of aggravated kidnapping under section 209(a) provided him with
sufficient notice he could be sentenced to LWOP if the evidence established his victims
suffered bodily harm or were subjected to a substantial likelihood of death. Therefore, he
has no basis to complain that he was unaware of this possibility. (Britton, supra, 6 Cal.2d
at p. 5; People v. Reeves (1955) 135 Cal.App.2d 449, 453-454; People v. Holt (1949) 93
5
Cal.App.2d 473, 476; People v. Haley (1941) 46 Cal.App.2d 618.)
5
In addition to the actual written charges, the Attorney General relies on two online newspaper
articles to support his claim appellant received sufficient notice he was facing a potential sentence of LWOP on the
aggravated kidnapping counts. However, those articles are not included in the record on appeal, and there is no
evidence appellant ever saw them, so we do not believe we can allow them to have any bearing on our analysis. The
17
But even if Britton were not controlling, we do not believe reversal would
be required in this case. As we now explain, the informal amendment of the information
to apprise appellant of his potential punishment would be determinative and his
complaint about notice would still be unavailing.
While fair notice of the charges is an essential component of due process,
rigid pleading rules are no longer favored in this state. (Anderson, supra, 9 Cal.5th at p.
957.) In fact, “‘California law does not attach any talismanic significance to the
existence of a written information.’ [Citation.]” (People v. Pettie (2017) 16 Cal.App.5th
23, 82.) That being the case, an informal “[o]ral amendment of an accusatory pleading
may suffice for statutory and due process purposes. [Citation.]” (Ibid.)
Under this informal amendment body of law, there is no requirement that
any specific words or express invocation be employed to effectuate a legally sufficient
amendment of the charges. (People v. Pettie, supra, 16 Cal.App.5th at p. 84.) Rather,
due process will be deemed satisfied if the record, considered as whole, shows the
defendant received adequate notice of the prosecution’s intent to charge him with a
particular crime or enhancement, and the defendant, by word or conduct, acquiesced to
the charge. (Ibid.; People v. Sawyers (2017) 15 Cal.App.5th 713, 720-721; People v.
Haskin (1992) 4 Cal.App.4th 1434, 1438.)
These principles were not lost on the Supreme Court in Anderson. There,
the court fully recognized “that not every amendment to a pleading – even one that
increases the defendant’s potential criminal liability – need be made in writing.”
(Anderson, supra, 9 Cal.5th at p. 960.) However, based on the unique circumstances
Attorney General also draws our attention to verbiage in the prosecution’s pretrial motion to consolidate, and a
passage in the discovery materials appellant received. The motion to consolidate does mention appellant could get
LWOP if convicted of aggravated kidnapping, but it appears to premise that possibility on the assumption appellant
was expressly charged with inflicting bodily injury during that offense, which was not the case. And the discovery
passage simply reflects mastermind Nayeri’s personal understanding that the charges carried a potential sentence of
LWOP, it does not prove appellant was aware of this fact. Suffice it to say, none of this peripheral information is
convincing in terms of proving appellant knew he could get LWOP.
18
presented in Anderson, the Supreme Court found no informal amendment occurred in that
case.
Recall that in Anderson, the vicarious discharge enhancement was alleged
only as to the murder count, but the jury was permitted to find that enhancement
applicable to multiple counts of robbery as well. Importantly, however, the record in
Anderson did not “reveal precisely how this came to pass.” (Anderson, supra, 9 Cal.5th
at p. 958.) “For all the record show[ed], the drafting of the instructions and verdict forms
[to include the uncharged vicarious discharge enhancement on the robbery counts] may
have simply been a mistake the parties did not manage to catch before it was too late.”
(Id. at p. 960.) As a matter of fact, the prosecutor did not announce his intention to seek a
25-year-to-life enhancement on the robbery counts until after the jury found the vicarious
discharge allegation true on those counts, and the parties were “midway through the
sentencing hearing.” (Id. at p. 964.)
Under those circumstances, Anderson rejected the state’s informal
amendment argument. The Supreme Court acknowledged that due process can be
satisfied if the defendant consents to an informal, unwritten amendment of the
information, even if the amendment alleges an uncharged greater offense or
enhancement. (Anderson, supra, 9 Cal.5th at pp. 958-960.) The Supreme Court also
recognized defense counsel failed to object to the subject instructions and verdict forms
that contained the uncharged vicarious discharge enhancements. However, the court
refused to equate that failure with consent to the enhancements because “there was no
hearing in open court where the prosecution asked to make an oral amendment to the
information to add the . . . enhancements as to the robbery counts, nor was Anderson
asked if he consented to the amendment, nor did the trial court ever grant such a request.”
(Id. at p. 960.) In other words, there simply was not enough attention given to the issue
to ensure Anderson received adequate notice of the potential punishment he faced.
Therefore, the Supreme Court concluded due process was not satisfied. (Ibid.)
19
The situation here is much different. Unlike in Anderson, where the
amended instructions and verdict forms flew under the radar and were unnoticed until the
time of sentencing, the amended instructions and verdict forms in this case were talked
about at length before the close of evidence.
When the judge met with the parties to discuss jury instructions toward the
end of the prosecution’s case, he specifically brought up CALCRIM No. 1202. As
explained above, that instruction not only contains the elements of aggravated
kidnapping, it describes the special factors relevant to the issue of sentencing. The
inclusion of the special factor language plainly signaled that appellant could be sentenced
to LWOP if he was convicted of aggravated kidnapping. Despite this, defense counsel
told the court he had no objection to the court giving CALCRIM No. 1202 to the jury.
Furthermore, on the next court date, the judge explained to the attorneys
and appellant that he intended to instruct the jury on a special allegation pertaining to the
aggravated kidnapping counts. The judge said he was going to ask the jury to consider
whether, in committing that offense, “great bodily injury was inflicted.” We recognize
the circumstance elevating the punishment for aggravated kidnapping from life in prison
with parole to LWOP is “bodily harm,” not “great bodily injury.” (§ 209(a).) However,
the two concepts are clearly related, and there was no dispute Michael sustained serious,
life-threatening injuries in this case. This circumstance was revealed clear back at the
preliminary hearing.
Moreover, on the heels of this discussion, the prosecutor informed the court
that, in regard to Mary, the state intended to prove the alternative circumstance needed to
impose a sentence of LWOP, which is that the victim was exposed to a substantial
likelihood of death. Given everything that was discussed at the hearing, there could have
been little doubt the prosecution was alleging both of the circumstances required to
sentence appellant to LWOP if he was convicted of aggravated kidnapping.
20
When the judge asked defense counsel if he objected to instructions or
verdict forms containing those special allegations, he said no. He also voiced no
objection when the prosecutor argued those allegations in closing argument or when the
jury returned true findings thereon. His defense was total non-involvement; those matters
made no difference to him.
And later on, defense counsel fully acknowledged in his sentencing brief
that appellant was facing a potential sentence of LWOP based on those findings. Defense
counsel made the argument that imposition of an LWOP sentence would be cruel and
unusual under the Eighth Amendment, but – to his credit – he never so much as
suggested that an LWOP sentence was improper on due process grounds for lack of
notice. Nor did he ever suggest that appellant’s plea decisions or trial strategy were
impacted by the manner in which the case was charged. There would have been no
support for either argument.
On this record, we are satisfied the conditions for an informal amendment
of the charges have been met. Because appellant was apprised of the prosecutor’s intent
to prove the special allegations required to impose a sentence of LWOP, and because
appellant consented to the inclusion of those allegations in the jury instructions and
verdict form, he was afforded sufficient notice of the charges. No due process violation
has been shown. (See People v. Sandoval (2006) 140 Cal.App.4th 111, 128-134
[prosecutor’s informal amendment of the pleadings made in open court and agreed to by
the defense was sufficient to provide the defendant with adequate notice of the charges
against him].)
In reaching this conclusion, we are mindful appellant was never expressly
informed he could be sentenced to LWOP if the jury found the special allegations true.
However, once the aggravated kidnapping charges were informally amended to include
allegations of bodily harm and substantial likelihood of death, appellant was sufficiently
apprised of this possibility. Therefore, he was not denied due process. (See People v.
21
Mancebo (2002) 27 Cal.4th 735, 747 [due process is satisfied if the defendant is fairly
apprised of the specific factual allegations that will be invoked to increase the
punishment for his crimes]; People v. Robinson (2004) 122 Cal.App.4th 275, 282
6
[same].)
Accomplice Instructions
At trial, the parties agreed Shegerian was an accomplice by virtue of her
involvement in the case. Although the trial court instructed the jury the statements of an
accomplice must be corroborated, the instruction on prior statements did not reiterate that
requirement. Appellant fears this omission allowed the jury to convict him based on
Shegerian’s prior statements, even if they were not corroborated. We do not believe it is
reasonably likely the jury construed the court’s instructions in this fashion. They are not
cause for reversal.
Pursuant to CALCRIM No. 335, the jury was instructed, “If the charged
crimes were committed, then [Shegerian was an] accomplice[] to those crimes. You may
not convict the defendant of any crime based on the statement or testimony of an
accomplice alone. You may use the statement or testimony of an accomplice to convict
the defendant only if: [¶] One, the accomplice’s statement . . . or testimony is supported
by other evidence that you believe; [¶] Two, that supporting evidence is independent of
the accomplice’s statement or testimony and; [¶] Three, that supporting evidence tends to
connect the defendant to the commission of the crime.”
The court also gave CALCRIM No. 318, which told the jury, “If you decide
that a witness made . . . statements [before trial], you may use those statements in two
ways: [¶] One, to evaluate whether the witness’s testimony in court is believable; [¶]
And two, as evidence that the information in those earlier statements [is] true.”
6
Given our conclusion in this regard, we need not consider the Attorney General’s contentions that
appellant forfeited his due process argument on appeal by failing to raise it in the trial court and that he was not
prejudiced by the alleged lack of notice.
22
Appellant does not dispute the correctness of these instructions. His
argument is that the latter instruction on prior statements undermined the corroboration
requirement set forth in the former instruction. However, appellant did not ask the trial
judge to modify or clarify the instructions in order to remedy this purported error. He has
thus forfeited his right to challenge the instructions on appeal. (People v. Lee (2011) 51
Cal.4th 620, 638 [“A trial court has no sua sponte duty to revise or improve upon an
accurate statement of law without a request from counsel . . . and failure to request
clarification of an otherwise correct instruction forfeits the claim of error for purposes of
appeal”].)
Even if the argument had been preserved for appeal, it would not carry the
day. In determining whether instructional error has occurred, we presume jurors are
intelligent people who are capable of understanding and correlating all of the instructions
they are given. (People v. Hajek and Vo (2014) 58 Cal.4th 1144, 1246, abrogated on
other grounds by People v. Rangel (2016) 62 Cal.4th 1192, 1216; People v. Martin
(2000) 78 Cal.App.4th 1107, 1111.) Unless there is a reasonable likelihood the jury
construed the challenged instructions in a manner that violated the defendant’s rights, we
must uphold the court’s charge to the jury. (Ibid.; People v. Rogers (2006) 39 Cal.4th
826, 873.)
There was no such likelihood in this case because the challenged
instructions addressed two different issues. CALCRIM No. 318, the instruction on prior
statements, spoke to the permissible usage of Shegerian’s extrajudicial statements from a
general evidentiary standpoint. CALCRIM No. 335, the instruction on accomplice
testimony, addressed the specific requirements for using Shegerian’s statements to obtain
a conviction. So even if the jurors used Shegerian’s prior statements for their truth, as
they were allowed to do under CALCRIM No. 318, they would have known from
CALCRIM No. 335 that they could not use those statements to convict unless they were
corroborated by other evidence. In other words, viewing the instructions in light of one
23
another, the jurors would have realized they could not convict appellant on the basis of
uncorroborated pretrial statements that were made by Shegerian. Appellant’s claim to the
contrary is without merit.
The Two-Week Trial Recess
During the trial, the judge recessed the proceedings for 14 days over the
course of the winter holidays. Appellant would have us believe this delay violated his
state and federal due process rights. We think not.
Appellant’s trial started in December 2017, roughly five years after he was
arrested. At a pretrial hearing on December 5, the prosecutor asked the judge what days
the court was going to be in session during the trial. After discussing the matter with
counsel off the record, the judge stated, “We discussed the scheduling and it looks as if
all parties are in agreement.” “We’ll be off [Tuesday, December] 26th through the 29th,
and that we will be telling the jury that we will be doing evidence [December] 12th
through the 22nd, and then we will be doing closing arguments probably like January
3rd.” No one objected to this scheduling framework.
Six days later, on December 11, the judge met with counsel to discuss voir
dire and the prospect of prescreening prospective jurors who might have time constraints
due to work or prepaid vacations. The judge surmised those constraints might not be a
problem for some of the prospective jurors because the court was going to be in recess
during the week of Christmas. He also stated he would be time-qualifying the jurors
through January 5, not including the time required for deliberations. Again, neither side
objected to this scheduling proposal.
As it turned out, the trial did not begin until Thursday, December 14. That
day, opening statements were given in the afternoon, and at the end of the session, the
judge ordered the jurors to return on Monday, December 18 for the start of testimony.
After the jurors left the courtroom, the prosecutor informed the judge he was going to be
moving through his witnesses pretty quickly because he and defense had been able to
24
narrow the scope of certain testimony. In fact, throughout the trial, the parties worked
7
hard to streamline the case through the use of stipulations and other time-saving
measures.
Consequently, the prosecution’s case went faster than initially expected.
By Wednesday, December 20, the prosecution was down to its final witness, lead
detective Ryan Peters. Peters finished his testimony just before noon that day. At that
time, the judge asked the parties if there was any reason he should not excuse the jury
until January 3, 2018, and both sides answered no. The court then adjourned the trial
until that date. In so doing, the court admonished the jurors not to discuss the case during
the break or start forming opinions about the case until they began their deliberations.
When the trial resumed on January 3, the prosecution recalled Peters to the
stand for a few brief questions before resting its case. Then the defense rested without
presenting any evidence, and the parties made their closing arguments. The next day, the
jury was instructed and received the case. After deliberating for less than three hours, it
found appellant guilty as charged.
Appellant contends the 14-day recess that occurred from December 20 to
January 3 violated his fair trial rights because, having heard the bulk of the prosecution’s
evidence by the 20th, the jurors would not have been able to keep an open mind over the
course of the recess. However, of those 14 days, six were weekends or holidays and four
(December 26 thru the 29th) were taken off by agreement of the parties, leaving only
three and one-half unplanned recess days: The afternoon of the 20th, the 21st and 22nd,
and January 2. And when the court adjourned on the 20th, appellant did not object to the
court ordering a recess until January 3. He therefore waived his right to complain about
the delay attributable to those three and one-half days. (People v. Ochoa (2001) 26
Cal.4th 398, 441 [absent an objection, the waiver rule bars claims arising from the
7
We’re impressed.
25
granting of a continuance during trial]; People v. Johnson (1993) 19 Cal.App.4th 778,
791-792 [by consenting thereto, the defendant waived his right to challenge a 17-day trial
recess that occurred over the winter holidays].)
Waiver aside, the two-week delay in appellant’s trial did not constitute an
abuse of discretion or violate appellant’s due process rights. (See generally Stroud v.
Superior Court (2000) 23 Cal.4th 952, 968 [the decision whether to order a midtrial
continuance rests within the sound discretion of the trial court]; People v. Esayian (2003)
112 Cal.App.4th 1031, 1042 [to overturn a conviction on due process grounds the
defendant bears a heavy burden to show the procedures used at trial were fundamentally
unfair].) Had the court not recessed the trial on December 20, there is a good chance the
jurors would have received the case before Christmas and felt rushed to deliver a verdict
8
before that holiday arrived, with the prosecution’s evidence fresh in their minds. As it
was, the jury was given ample time to process and evaluate the state’s case before being
asked to render a verdict. This prevented a rush to judgment based on temporary feelings
of passion, prejudice, or inconvenience. (See People v. Johnson, supra, 19 Cal.App.4th
at p. 791 [pointing out that forcing a jury to deliberate against a Christmas holiday
deadline is often not in the best interest of the defendant].)
And the fact the recess occurred before deliberations commenced
distinguishes this case from People v. Santamaria (1991) 229 Cal.App.3d 269, upon
which appellant relies. When a recess occurs during deliberations, as it did in
Santamaria, the jury may forget important aspects of the evidence or the court’s
instructions. (Id. at p. 282.) That danger was minimized here because the recess
occurred before the jury heard closing arguments, during which the evidence was
discussed at length, and before the jury received its instructions from the court, which
8
Appellant presented no defense.
26
would clarify the analysis of that evidence. Considering all the pertinent circumstances,
9
we do not believe the recess is cause for reversal.
Sentencing Claims
Lastly, appellant contends his consecutive life sentences for aggravated
mayhem and torture must be stayed under section 654 because those crimes were part and
parcel of the kidnapping offense for which he was separately punished. Once again, we
disagree.
Section 654 states, “An act or omission that is punishable in different ways
by different provisions of law shall be punished under the provision that provides for the
longest potential term of imprisonment, but in no case shall the act or omission be
punished under more than one provision.” (§ 654, subd. (a).) The statute “applies not
only where there was but one act in the ordinary sense, but also where there was a course
of conduct which violated more than one statute but nevertheless constituted an
indivisible transaction. [Citation.]” (People v. Perez (1979) 23 Cal.3d 545, 551;
In re Calvin S. (2016) 5 Cal.App.5th 522, 533.)
Whether a course of conduct is indivisible for purposes of section 654
depends on the intent and objective of the defendant. If all of his crimes were carried out
pursuant to a single objective, multiple punishment is prohibited. (People v. Latimer
(1993) 5 Cal.4th 1203, 1208.) However, if the defendant “entertained multiple criminal
objectives which were independent of and not merely incidental to each other, he may be
punished for independent violations committed in pursuit of each objective even though
the violations shared common acts or were parts of an otherwise indivisible course of
conduct.” (People v. Beamon (1973) 8 Cal.3d 625, 639.)
9
This case is also distinguishable from People v. Engleman (1981) 116 Cal.App.3d Supp. 14, in
which a three-week trial continuance was found to be “inherently prejudicial” because it undermined the jury’s
ability to fairly assess the evidence the defendant introduced at trial. (Id. at p. 21.) Since appellant did not present
any evidence in his defense, that was not a concern here.
27
On appeal, we must remember the defendant’s intent and objective present
factual questions for the trial court, and its findings, whether express or implied, will be
upheld if they are supported by substantial evidence. (People v. Petronella (2013) 218
Cal.App.4th 945, 964; People v. Gaio (2000) 81 Cal.App.4th 919, 935.) Under the
substantial evidence test, “our review is limited to the determination of whether, upon
review of the entire record, there is substantial evidence of solid value, contradicted or
uncontradicted, which will support the trial court’s decision. In that regard, we give great
deference to the trial court and resolve all inferences and intendments in favor of the
judgment. Similarly, all conflicting evidence will be resolved in favor of the decision.”
(People v. Kurey (2001) 88 Cal.App.4th 840, 848-849, fns. omitted; accord, People v.
Petronella, supra, 218 Cal.App.4th at p. 964; People v. Martin (2005) 133 Cal.App.4th
776, 781.)
The crimes in this case involved a course of conduct that started with the
victims being kidnapped from their home in Newport Beach and ended two and a half
hours later when they were left out in the Mojave Desert. During that period of time, the
kidnappers tortured Michael repeatedly, and once they realized they were not going to get
the million dollars they were after, they cut off his penis, which was the basis for the
aggravated mayhem count. Appellant contends section 654 applies to the torture count
because the only reason he and his cohorts tortured Michael was to get him to tell them
where the million dollars was, which is why they kidnapped him in the first place.
At sentencing, the trial judge rejected this contention because, besides
torturing Michael in the back of the van to find out where the money was, the kidnappers
also poured bleach on Michael after they cut off his penis. The judge found the bleach
pouring amounted to a torturous act that was done not to get Michael to reveal the
location of the money, but simply to add to the pain and suffering he had already
endured. Indeed, the record indicates that one of the effects of pouring bleach on
Michael was that the kidnappers’ footprints became permanently seared into his skin.
28
Relying on People v. Siko (1988) 45 Cal.3d 820, 825-826 and People v.
McCoy (2012) 208 Cal.App.4th 1333, 1337-1340, appellant contends the judge’s finding
regarding the purpose of the bleach pouring was foreclosed by the prosecutor’s closing
argument, in which he asserted the kidnappers doused Michael with bleach to destroy
their DNA. Those cases stand for the proposition that if there is a basis for identifying
the specific factual basis for a verdict, such as the charging documents, closing arguments
or verdict forms, the trial court may not rely on other acts to avoid application of section
654. (Ibid.) By parity of reasoning, appellant contends that because the prosecutor
referenced the destruction of DNA as a motive for the bleach pouring, the trial judge was
precluded from finding the act was done for any other reason. However, the prosecutor
did not argue the destruction of DNA was the only reason the kidnappers poured bleach
on Michael, and their cavalier disposal of his penis supports the idea they could well have
harbored baser motives at that time. Therefore, the judge was free to find the act was
done for some other reason as well, such as torture. (Ibid.) Suffice it to say, there is
substantial evidence in the record to support the judge’s finding the bleach pouring had
multiple motives and was not done for the sole purpose of destroying evidence.
Still, appellant contends the judge’s reliance on the bleach-pouring incident
as the basis for not applying section 654 to the torture count was improper because the act
of pouring bleach on Michael did not amount to torture. Appellant does not dispute the
act caused Michael great bodily injury, the first element of torture. But he does dispute
the sufficiency of the evidence to support the second element, namely, that by pouring the
bleach, he and his cohorts intended to cause Michael to suffer cruel or extreme pain “for
the purpose of revenge, extortion, persuasion, or for any sadistic purpose[.]” (§ 206.)
In challenging this element, appellant again relies on the prosecutor’s claim
during closing argument that the kidnappers poured bleach on Michael to destroy their
DNA. To appellant’s way of thinking, this claim proves the destruction of evidence was
the sole reason for the bleach. However, if the kidnappers were so transfixed on
29
destroying their DNA, they would have poured bleach on Mary too. Their failure to do
so supports the conclusion they had an additional reason for dousing Michael with
bleach, which was either to exact revenge on him for not telling them where the money
was and/or to simply make him suffer, which is the hallmark of sadism. Either way, the
bleach-pouring act was a sufficient basis for the trial judge’s torture theory. The judge
was not remiss for relying on that act in considering the applicability of section 654 in
connection with the aggravated kidnapping counts and the torture count. We discern no
basis for disturbing appellant’s life sentence for torturing Michael.
As for the aggravated mayhem count, appellant argues his sentence for that
offense should have been stayed pursuant to section 654 because it was based on the
same act – the severing of Michael’s penis – that supported the bodily harm element of
the aggravated kidnapping charge in count 1. In so arguing, appellant admits there were
other acts that could have supported the bodily harm element, such as the blowtorching or
the tasering. However, he insists that doesn’t matter because the prosecutor “specifically
elected” not to rely on those acts in urging the jury to convict him on count 1.
The record does not support appellant’s position. While the prosecutor
alluded to the kidnappers’ act of severing Michael’s penis while discussing the bodily
harm element of the aggravated kidnapping charge, he did not tell the jury to ignore all of
the other bodily harm Michael suffered in deciding whether appellant was guilty of that
offense. To the contrary, the prosecutor urged the jury to consider everything Michael
went through and all the injuries he received. Therefore, it cannot be said that the
prosecutor elected to base the bodily harm allegation solely on the dismembering of
Michael’s penis.
Because the prosecutor did not elect to prove the bodily harm allegation on
such a limited basis, and because there is nothing else in the record that reveals which act
or acts the jury relied on in finding that allegation to be true, the trial judge was free to
consider all of the evidence adduced at trial in determining whether section 654 applied
30
to appellant’s sentences for aggravated mayhem and aggravated kidnapping. (People v.
Siko, supra, 45 Cal.3d at pp. 825–826; People v. McCoy, supra, 208 Cal.App.4th at p.
1340.) Having reviewed the entire record ourselves, we are convinced there is substantial
evidence to support the trial court’s implied finding those two offenses were based on
different acts and committed for different reasons. Therefore, appellant is not entitled to
relief under section 654.
DISPOSITION
The judgment is affirmed.
BEDSWORTH, ACTING P. J.
WE CONCUR:
FYBEL, J.
IKOLA, J.
31