Filed 2/28/13 P. v. Tercero CA4/3 

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication 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, 

 v. 

JUAN TERCERO and 

PABLO JIMENEZ CORTEZ, 

 Defendants and Appellants. 

 G046162 

 (Super. Ct. No. 09CF0621) 

 O P I N I O N 

 Appeal from a judgment of the Superior Court of Orange County, David A. 

Thompson, Judge. Affirmed in part and reversed in part. 

 Richard De La Sota, under appointment by the Court of Appeal, for 

Defendant and Appellant Juan Tercero. 

 Susan K. Shaler, under appointment by the Court of Appeal, for Defendant 

and Appellant Pablo Jimenez Cortez. 

 Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant 

Attorney General, Julie L. Garland, Assistant Attorney General, William M. Wood and 

Heather F. Crawford, Deputy Attorneys General, for Plaintiff and Respondent. 

* * * 
2

 A jury convicted Juan Tercero and Pablo Jimenez Cortez of two counts 

each of kidnapping during the commission of a carjacking (counts 1 & 2; Pen. Code, 

§ 209.5, subd. (a); all further undesignated section references are to this code); simple 

kidnapping (counts 3 & 4; § 207, subd. (a)) as a lesser-included offense of kidnapping for 

robbery; assault with a semiautomatic firearm (counts 5 & 6; § 245, subd. (b)); and one 

count of second degree robbery (count 7; § 211). The jury also made true findings on 

numerous personal use of a firearm (§§ 12022.53, subd. (b), 12022.5, subd. (a)) and 

infliction of great bodily injury (§ 12022.7, subd. (a)) enhancement allegations against 

Tercero. 

 On appeal, defendants challenge the sufficiency of the evidence to support 

the jury’s conclusion they kidnapped their two teenage victims, Sarah T. and Lacy H., 

during the commission of a carjacking. Cortez also argues the trial court failed to instruct 

the jury on the specific intent necessary for aiding and abetting a kidnapping in counts 3 

and 4. But the Attorney General concedes, and we agree, defendants’ convictions on 

these counts must be reversed because simple kidnapping is a lesser-included offense of 

kidnapping during the commission of a carjacking charged in counts 1 and 2, rendering 

Cortez’s instructional challenge moot. Defendants raise other instructional challenges 

that are without merit, as we explain. Consequently, we reverse defendants’ convictions 

on counts 3 and 4, and affirm the judgment in all other respects. 

I 

FACTUAL AND PROCEDURAL BACKGROUND 

 In the early morning hours of March 8, 2009, Tercero attended a party with 

a friend, Rene Garcia. After leaving the party, Tercero met Cortez and Justo Garcia at an 

Orange County nightclub. Tercero drank heavily at the club, and when the club closed, 
3

the group visited the home of Rene Garcia’s girlfriend, who provided tequila for the men. 

The four men decided to visit Taqueria Mexico, a restaurant behind Tercero’s apartment 

near the intersection of Katella and Cambridge in Orange. 

 Sometime after 3:30 a.m., Tercero, Cortez, and their companions noticed 

Sarah and Lacy, both 19, at Taqueria Mexico. The restaurant was busy, and the women 

waited in line for several minutes before ordering and sitting down at a table to eat their 

food. Sarah and Lacy, regular customers at the restaurant, were friendly with the cashier 

and other customers. 

 Tercero, Cortez, and their friends had entered Taqueria Mexico shortly after 

Lacy and Sarah and,after ordering his food, Tercero sat at a table next to Lacy and 

attempted to start a conversation with her, but she ignored him. When Sarah and Lacy 

left the restaurant, Tercero, Cortez, and their companions followed the women. Sarah 

and Lacy entered Sarah’s red Chevrolet Cobalt and began driving home via the 

55 Freeway; they exited the freeway at Irvine Boulevard and stopped at the traffic signal 

at the intersection of Irvine Boulevard and Newport Avenue. Having followed the 

women in a black Toyota Yaris, Tercero, Cortez, and their companion rear-ended Sarah’s 

car. It was not a hard impact, but Sarah hesitated and then pulled into the parking lot of 

an adjacent Ralph’s grocery store, and the Yaris followed. 

 Tercero pulled his vehicle into a parking space near Sarah’s car, then exited 

his car and approached the driver’s side of the Cobalt, while Cortez exited the Yaris and 

approached Lacy’s side of the car. During a brief conversation with the women, Tercero 

apologized in a manner Lacy felt was “fake,” and then displayed a gun, brandished it at 

the women, and ordered them out of their car. Sarah and Lacy panicked; Tercero opened 

Sarah’s door and as she began trying to speed away, he forced her seat forward and 
4

entered the backseat of the two-door Cobalt. Cortez ran back to the Yaris, and the car 

sped around Sarah’s Cobalt as it left the parking lot. Tercero put his gun to Sarah’s head 

and ordered her to follow the Yaris. Yanking their hair and pointing his gun at them, 

Tercero threatened to kill both women. Lacy urged Sarah to disregard Tercero’s 

commands because she did not think the men intended to steal anything from them once 

they arrived wherever they were going; instead, she feared much worse. 

 Sarah initially complied with Tercero’s orders for a few blocks before 

abruptly turning into a church parking lot near Red Hill and Irvine Boulevard. The Yaris 

continued on at first, but quickly returned to the church parking lot. When Sarah parked 

the car, Tercero tried to pull the keys out of the ignition. Cortez and two of the other men 

approached the Cobalt as Tercero pushed his way out of the backseat. Tercero kept his 

gun aimed at Sarah’s head while the other three men attempted to drag Sarah and Lacy 

from the car. The men repeatedly punched, kicked, and choked Sarah. Sarah’s hand was 

cut as she fought to protect her car keys. Tercero struck Sarah with the butt of his gun, 

knocking her unconscious. 

 Meanwhile, Cortez succeeded in pulling Lacy out of the car and dragged 

her toward the Yaris, but Lacy broke free and ran back to the Cobalt, quickly reentering 

the car on the passenger side. Cortez returned to the Cobalt and punched Lacy in the face 

before Tercero knocked her unconscious by hitting her with his gun. The four men 

returned to the Yaris and exited the church parking lot. 

 Responding to a 911 call made by a witness to the initial altercation in the 

Ralph’s parking lot, a Tustin police officer spotted the Yaris leaving the church parking 

lot with its lights off. The officer engaged his patrol vehicle’s sirens and lights and 

pursued the Yaris, which ran several red lights at speeds up to 100 miles per hour. After 
5

approximately six miles, the Yaris reduced its speed and one of the occupants jumped 

out. Moments later, another occupant jumped out. Abandoning his pursuit of the Yaris, 

the officer returned to where he had seen the passengers jump out of the car and found a 

Santa Ana police officer had apprehended Tercero. A search of Tercero revealed 

Chevrolet car keys and a cell phone. 

 Back in the church parking lot, Sarah regained consciousness in time to see 

the police pursuing the Yaris. Lacy also came to, and the women flagged down a passing 

vehicle and used the driver’s cell phone to call 911. When the police arrived, Sarah 

pointed out a gun on the ground in the church parking lot. Asked about the gun after he 

was apprehended, Tercero admitted throwing it out of the car window in the church 

parking lot when he saw the police officer begin his pursuit. Police later learned of 

Cortez’s involvement and arrested him. 

 After the jury convicted Tercero and Cortez as noted above, the trial court 

sentenced Tercero to life in prison with the possibility of parole for kidnapping during the 

commission of a carjacking (counts 1 and 2), plus 50 years on the remaining counts and 

allegations, including gun use enhancements, and sentenced Cortez to life in prison with 

the possibility of parole on counts 1 and 2, plus eight years on the remaining counts. 

Defendants now appeal. 

II 

DISCUSSION 

A. Simple Kidnapping and Kidnapping in Committing Carjacking

 1. Substantial Evidence Supports the Kidnapping and Carjacking Convictions 

 Defendants challenge the sufficiency of the evidence to support their 

convictions for kidnapping their victims in the course of a carjacking (counts 1 & 2) and 
6

simple kidnapping (counts 3 & 4). On appeal, the reviewing court must view the 

evidence in the light most favorable to the judgment. (People v. Elliot (2005) 37 Cal.4th 

453, 466.) It is the trier of fact’s exclusive province to assess witness credibility and to 

weigh and resolve conflicts in the evidence. (People v. Sanchez (2003) 113 Cal.App.4th 

325, 330 (Sanchez ).) We therefore presume the existence of every fact reasonably 

inferred from the evidence in support of the judgment. (People v. Crittenden (1994) 

9 Cal.4th 83, 139.) The test is whether substantial evidence supports the conclusion of 

the trier of fact, not whether the appellate panel is persuaded the defendant is guilty 

beyond a reasonable doubt. (Ibid.; People v. Johnson (1980) 26 Cal.3d 557, 576.) In 

other words, reversal is not warranted even though the circumstances could be reconciled 

with a contrary finding. (People v. Bean (1988) 46 Cal.3d 919, 932-933.) Thus, a 

defendant attacking the sufficiency of the evidence “bears an enormous burden.” 

(Sanchez, at p. 330.) 

 Defendants contend they did not commit kidnapping or kidnapping in the 

course of a carjacking because Tercero “did not force the victims to move from one 

location to another,” and they did not commit carjacking because “neither [Tercero] nor 

his companions ever gained control of the victim’s vehicle.” We are not persuaded. 

 Kidnapping, and thus the greater offense of kidnapping during the 

commission of a carjacking (§ 209.5), requires that the perpetrator move the victim in a 

substantial manner by force or fear, without the person’s consent. (People v. Arias

(2011) 193 Cal.App.4th 1428, 1434-1435; see § 207, subd. (a) [“forcibly . . . carr[ying]” 

away victim against his or her will constitutes kidnapping].) Nothing “limits the 

asportation element solely to actual distance” (People v. Martinez (1999) 20 Cal.4th 225, 

236); rather, “‘the “scope and nature” of the movement . . . , and any increased risk of 
7

harm’” are also relevant. (People v. Bell (2009) 179 Cal.App.4th 428, 436.) Thus, the 

jury’s consideration may include “such factors as whether that movement increased the 

risk of harm above that which existed prior to the asportation, decreased the likelihood of 

detection, [or] increased both the danger inherent in a victim’s foreseeable attempts to 

escape and the attacker’s enhanced opportunity to commit additional crimes. [Fn. 

omitted.]” (Martinez, at p. 237; see People v. Shadden (2001) 93 Cal.App.4th 164, 169 

[movement of victim nine feet sufficient to support asportation element].) 

 Defendants contend they did not compel the victims’ movement because 

Sarah made the initial decision to drive away while trying to escape Tercero, and she 

similarly ended their asportation by pulling into the church parking lot, ignoring 

Tercero’s contrary directions to follow Cortez’s car. The jury, however, reasonably 

could conclude a kidnapping occurred as soon as Tercero entered the car, pointed his gun 

at Sarah and Lacy, and directed Sarah to “drive” and to “continue” to follow Cortez’s car. 

Indeed, the testimony supported the conclusion Sarah did not succeed in putting her car 

in gear before Tercero forced his way into the vehicle, and the women explained their 

fear and panic at his intrusion. 

 Accordingly, the jury reasonably could conclude Sarah complied with 

Tercero’s instructions not of her own volition but because she was “scared,” and although 

she only traveled a few blocks before attempting to escape, the jury reasonably could 

conclude this compelled movement in a vehicle constituted kidnapping. It substantially 

increased the risk of harm to the victims, posed the danger of a decreased chance of 

detection and enhanced opportunities for their attackers to commit additional crimes, and 

their foreseeable escape attempts became more dangerous because they were moving at 

high rates of speed in a vehicle, and actually resulted in substantial harm when 
8

defendants pistol whipped them in the parking lot, knocking both unconscious. In 

particular, Sarah described how she planned a desperate escape and “at that point” made 

the decision “to stick up for myself,” ignore Tercero’s commands, and turn into the 

church parking lot. ~(RT 123)~ The jury reasonably could infer from this testimony that 

until “that point” Sarah piloted her vehicle as Tercero commanded at gunpoint and not by 

choice. Ample evidence supports the kidnapping charges (counts 3 & 4) and the 

kidnapping element of kidnapping during the commission of a carjacking (counts 1 & 2). 

 Substantial evidence also supported the carjacking element of counts 1 

and 2. Kidnapping during the commission of a carjacking requires a completed 

carjacking. (People v. Contreras (1997) ) 55 Cal.App.4th 760, 765.) “‘Carjacking’ is the 

felonious taking of a motor vehicle in the possession of another . . . against his or her will 

and with the intent to either permanently or temporarily deprive the person in possession 

of the motor vehicle of his or her possession, accomplished by means of force or fear.” 

(§ 215, subd. (a).) “[A] felonious taking can occur under the carjacking statute when the 

victim remains in the car.” (People v. Duran (2001) 88 Cal.App.4th 1371, 1375; see also 

People v. Lopez (2003) 31 Cal.4th 1051, 1060-1062 [noting Legislature was “specifically 

concerned with the ‘considerable increase in the number of persons who have been 

abducted’ in their vehicles,” italics added].) Accordingly, the jury reasonably could 

conclude defendants accomplished the necessary temporary taking of the victims’ car 

when Tercero gained control over the vehicle by directing Sarah at gunpoint where to 

drive. Defendants’ substantial evidence challenge is without merit. 

 2. Conceded Reversal on the Lesser-Included Simple Kidnapping Offenses 

 The Attorney General concedes defendants’ convictions on counts 3 and 4 

for simple kidnapping of Sarah and Lacy must be reversed as lesser-included offenses of 
9

counts 1 and 2, kidnapping during the commission of a carjacking. Both sets of offenses 

were based on the same forcible movement of the victims. The latter offenses include the 

former because they cannot be committed without also committing kidnapping. (People 

v. Medina (2007) 41 Cal.4th 685, 701-702.) The trial court stayed counts 3 and 4 under 

section 654, but an individual may not be convicted of both the greater crime and a 

lesser-included offense. (People v. Ortiz (2002) 101 Cal.App.4th 410, 415.) “If the 

evidence supports the verdict as to a greater offense, the conviction on that offense is 

controlling, and the conviction of the lesser offense must be reversed.” (People v. Moran

(1970) 1 Cal.3d 755, 763.) Consequently, we will direct the trial court to reverse 

defendants’ convictions on counts 3 and 4. 

 3. Moot Instructional Claim Regarding Counts 3 and 4 

 Because his convictions on counts 3 and 4 must be reversed, and there is no 

basis for a retrial on those counts because they involve the same underlying kidnapping 

allegations upheld in counts 1 and 2, Cortez’s claim the jury was not properly instructed 

on the specific intent necessary for aiding and abetting liability on counts 3 and 4 is moot. 

Accordingly, we do not address the issue further. 

B. Instructional claims

 1. No Evidence Supported an Instruction on Reasonable Belief in the 

 Victims’ Consent to Kidnapping 

 Cortez contends the trial court erroneously failed to instruct the jury that 

guilt on the kidnapping-related charges required a finding he did not “actually and 

reasonably believe” the victims “consented to the[ir] movement” when they were 

allegedly kidnapped. A reasonable belief the victim consented to the physical movement 

necessary for kidnapping is a complete defense to the crime. (People v. Eid (2010) 
10

187 Cal.App.4th 859, 869 (Eid); People v. Isitt (1976) 55 Cal.App.3d 23, 28.) The 

victim’s consent, however, must be voluntary, not coerced. (People v. Davis (1995) 

10 Cal.4th 463, 517; Eid, at pp. 869-870.) Cortez notes that CALCRIM No. 1215 defines 

simple kidnapping and provides optional language to explain to the jury the requirement 

“[t]he defendant did not actually and reasonably believe that the other person consented 

to the movement.” The trial court must give the optional language only when the 

evidence shows a potentially reasonable belief in consent. (People v. Greenberger

(1997) 58 Cal.App.4th 298, 375 (Greenberger).) 

 Cortez acknowledges his trial counsel agreed to the trial court’s decision to 

instruct the jury without reference to any good faith belief in the victims’ consent because 

the court and counsel concluded there was no evidence of consent or a reasonable belief 

in consent. Cortez argues the issue is not thereby forfeited, however, because the court 

and counsel were wrong, and he contends his attorney rendered ineffective assistance of 

counsel by failing to demand the instruction. We address the issue because if substantial 

evidence supports a reasonable belief the victim consented, the trial court has a sua 

sponte duty to give the instruction (Greenberger, supra, 58 Cal.App.4th at p. 375) and its 

absence violates the defendant’s substantial rights (§ 1259). 

 But the instruction was not necessary because the evidence supported 

neither the conclusion the victims consented to their movement, nor a good faith belief in 

the women’s consent. In a violent confrontation after the defendants bumped the victims’ 

car, Tercero entered the car with a gun and pointed it at Sarah and Lacy. Cortez argues 

that because Tercero directed Sarah to follow the vehicle in which Cortez rode as a 

passenger, that car was necessarily in front of Sarah’s car and therefore Cortez suggests 

his car must have started moving before Sarah’s car moved. Cortez surmises from this 
11

sequence of events that the jury could infer Cortez returned to his car before the 

encounter became hostile, and the jury therefore also could infer Cortez reasonably 

believed the women consented to follow the car in which he rode. He cites the women’s 

gregarious behavior at the taco stand as evidence supporting a reasonable belief they 

freely consented to Tercero accompanying them after the fender bender. 

 The problem with the inferences Cortez draws is that they are not supported 

by any evidence. He relies instead merely on conjecture. For example, the evidence 

showed that the women interacted in a friendly manner with others at the taco stand, not 

with defendants. More importantly, the only evidence concerning when Cortez returned 

to his car was Lacy’s testimony that he did so after the encounter became violent and 

Sarah started to drive away, trying to escape Tercero. Lacy testified it was “[a]t the time 

she [Sarah] started to drive” that Cortez “ran back” from beside Lacy’s window to the 

other car. The evidence does not support the conclusion Cortez was unaware of the 

unfolding violence. The evidence also showed Cortez’s car traveled in front of Sarah’s 

car not because it departed first but, as Lacy explained, “They sped around us as we were 

pulling out of the Ralph’s parking lot.” Accordingly, because no evidence supports 

Cortez’s appellate claim of a reasonable belief in the women’s consent, the trial court was 

not required to instruct the jury on the topic. Nor was counsel ineffective in failing to 
12

request an instruction that no evidence supported. Cortez’s claims are therefore without 

merit.1 

 2. Instruction on Other Lesser-Included Offenses 

 Defendants contend their convictions on counts 1 and 2 for kidnapping 

during the commission of a carjacking must be reversed because the trial court failed to 

instruct the jury on all potential lesser-included offenses. The trial court instructed the 

jury on carjacking, attempted carjacking, and false imprisonment as lesser-included 

offenses under counts 1 and 2. On the kidnapping for robbery charges in counts 3 and 4, 

the trial court also gave the jury the option of returning verdicts on the lesser included 

offenses of kidnapping, attempted kidnapping, and false imprisonment and, as noted, the 

jury convicted defendants in counts 3 and 4 of the lesser offense of kidnapping. 

Defendants argue the trial court should have instructed the jury on counts 1 and 2 that the 

following crimes were also lesser-included offenses: attempted kidnapping during the 

commission of a carjacking, kidnapping, and attempted kidnapping. As noted, the 

Attorney General concedes kidnapping is a lesser-included offense of kidnapping during 

the commission of a carjacking. (See Medina, supra, 41 Cal.4th at pp. 690, 694, 701.) 

 1 At oral argument, Cortez’s appellate attorney suggested the evidence was 

consistent with the conclusion another person from his car approached Lacy’s side of 

Sarah’s vehicle, and therefore the jury could infer Cortez remained in his car ignorant of 

Tercero’s forceful, nonconsensual entry into Sarah’s car, and consequently Cortez may 

have reasonably believed the women followed the Yaris of their own volition and not by 

force. The contention is forfeited because it was not raised in Cortez’s brief and, in any 

event, consists of conjecture and therefore does not require the instruction Cortez now 

says was necessary. Specifically, the evidence showed the violent encounter in the 

Ralph’s parking lot prompted a disinterested observer — situated much further away than 

Cortez’s car — to call 911, and the fact Cortez’s car sped from behind and around 

Sarah’s car is similarly inconsistent with the notion Cortez was unaware of what was 

happening in Sarah’s car. No evidence supported that conclusion, and therefore the trial 

court was not required to give the instruction on reasonable belief in consent. 
13

 We review claims of instructional error under the Watson standard: the 

appellant must demonstrate it is reasonably probable he or she would have obtained a 

more favorable outcome absent the claimed error. (People v. Watson (1956) 46 Cal.2d 

818, 836.) Because the jury resolved the issues of kidnapping and attempted kidnapping 

under other properly given instructions, any error in failing to give the omitted 

instructions under other counts was harmless. (People v. Rivera (1984) 157 Cal.App.3d 

736, 743.) Specifically, as lesser-included offenses under counts 3 and 4, the trial court 

properly instructed the jury concerning the elements of kidnapping and attempted 

kidnapping, and the jury determined defendants kidnapped their victims and rejected their 

defense they only attempted to kidnap them. Consequently, given the evidence 

underlying counts 1 through 4 was identical, there is no reason to suppose defendants 

would have fared better on counts 1 and 2 if the jury had been instructed on attempted 

kidnapping and attempted kidnapping during the commission of a carjacking. Simply 

put, the jury rejected the notion defendants’ acts only amounted to attempted, rather than 

completed, kidnapping. 

 The jury was instructed on attempted carjacking as a lesser-included 

offense in counts 1 and 2, but rejected that conclusion. Having rejected the possibility 

defendants’ acts constituted an attempted carjacking or attempted kidnapping, we cannot 

say it is reasonably likely including any of the instructions defendants now claim were 

necessary would have made a difference. Defendants rely on the fact that including 

kidnapping as a lesser offense of kidnapping for robbery did make a difference on 

counts 3 and 4 because the jury convicted them only of kidnapping and not kidnapping 

for robbery. But unlike counts 3 and 4, counts 1 and 2 did not turn on whether the 

perpetrator committed kidnapping for the purpose of committing an additional offense 
14

such as robbery. Rather, kidnapping during the commission of a carjacking, as the name 

implies, involves simultaneous commission of two offenses, kidnapping and carjacking 

— not the commission of one to facilitate the other. 

 Consequently, once the jury rejected on the properly given instructions 

defendants’ claims they only attempted a carjacking, but did not gain control of the 

vehicle, and only attempted to kidnap the victims, but did not carry them away by force 

apart from Sarah’s independent decisions, there was no reasonable probability of a 

different verdict than the one the jury reached. Simply put, the jury’s conclusions on 

properly given instructions eliminated the possibility the jury would have convicted 

defendants of only attempting to kidnap the women, only attempting to carjack them, or 

only attempting to carjack them and not kidnap them. 

III 

DISPOSITION 

 Defendants’ convictions in counts 3 and 4 for simple kidnapping are 

reversed. The judgment is affirmed in all other respects. 

 

 ARONSON, J. 

WE CONCUR: 

MOORE, ACTING P. J. 

IKOLA, J.