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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 appoin tment by the Court of Appeal, for Defendant and Appella nt Juan Tercero. Susan K. Shaler, under appointment by the Court of Appeal, for Defendant and Appellant Pablo Jimenez Cortez. Kamala D. Harris, Attorney Genera l, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assist ant 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 sec tion references are to this code); simple kidnapping (counts 3 & 4; § 207, subd. (a)) as a lesser-included offens e of kidnapping for robbery; assault with a semiau tomatic firearm (counts 5 & 6; § 245, subd. (b)); and one count of second degree robbery (count 7; § 21 1). The jury also made true findings on numerous personal use of a firearm (§§ 120 22.53, 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 su fficiency of the ev idence to support the jury’s conclusion they kidnapped their tw o teenage victims, Sarah T. and Lacy H., during the commission of a carjacking. Cortez al so argues the trial court failed to instruct the jury on the specific intent necessary for aiding and abetti ng 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 carjacki ng charged in counts 1 and 2, rendering Cortez’s instructional challenge moot. Defe ndants raise other instructional challenges that are without merit, as we explain. Co nsequently, we reverse defendants’ convictions on counts 3 and 4, and affirm the judgment in all other respects.
I
FACTUAL AND PROCEDUR AL 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 a nd Justo Garcia at an Orange County nightclub. Terc ero drank heavily at the club, and when the club closed,3 the group visited the home of Rene Garcia’s gi rlfriend, who provided tequila for the men. The four men decided to visit Taqueria Mexi co, a restaurant behind Tercero’s apartment near the intersection of Katella and Cambridge in Orange. Sometime after 3:30 a.m., Tercero, Co rtez, and their companions noticed Sarah and Lacy, both 19, at Taqueria Mexico. The restaurant was busy, and the women
waited in line for several minut es before ordering and sitting down at a table to eat their food. Sarah and Lacy, regular customers at th e restaurant, were friendly with the cashier
and other customers. Tercero, Cortez, and their friends ha d 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, bu t she ignored him. When Sarah and Lacy left the restaurant, Tercero, Cortez, and th eir companions followe d the women. Sarah and Lacy entered Sarah’s red Chevrolet Cobalt and began driving home via the 55 Freeway; they exited the freew ay at Irvine Boulevard and st opped at the traffic signal
at the intersection of Irvine Boulevard and Newport Avenue. Having followed the women in a black Toyota Yaris, Tercero, Co rtez, and their companion rear-ended Sarah’s car. It was not a hard impact, but Sarah hes itated and then pulled into the parking lot of an adjacent Ralph’s grocery stor e, and the Yaris followed. Tercero pulled his vehicle into a park ing 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 th e car. During a brief conversa tion with the women, Tercero apologized in a manner Lacy felt was “fake,” a nd then displayed a gun, brandished it at the women, and ordered them out of their ca r. Sarah and Lacy panicked; Tercero opened Sarah’s door and as she began trying to sp eed away, he forced her seat forward and4 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 parki ng lot. Tercero put hi s gun to Sarah’s head
and ordered her to follow the Yaris. Yanki ng their hair and pointing his gun at them,
Tercero threatened to kill both women. Lacy urged Sa rah to disregard Tercero’s
commands because she did not think the men intended to steal a nything 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 wa y out of the backseat. Tercero kept his gun aimed at Sarah’s head while the other th ree men attempted to drag Sarah and Lacy from the car. The men repeatedly punched, ki cked, and choked Sarah. Sarah’s hand was cut as she fought to protect her car keys. Te rcero struck Sarah with the butt of his gun, knocking her unconscious. Meanwhile, Cortez succeed ed 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 knocke d her unconscious by hitting her with his gun. The four men
returned to the Yaris and exite d the church parking lot. Responding to a 911 call made by a witn ess 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 light s at speeds up to 100 miles per hour. After5 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 se arch of Tercero revealed Chevrolet car keys and a cell phone. Back in the church park ing 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 ad mitted 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 Co rtez as noted above, the trial court sentenced Tercero to life in pr ison with the possibility of paro le for kidnapping during the commission of a carjacking (counts 1 and 2), plus 50 years on the remaining counts and allegations, including gun use e nhancements, and sentenced Cort ez 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 Kidnapp ing in Committing Carjacking
1. Substantial Evidence Supports the Kidnapping a nd Carjacking Convictions Defendants challenge the sufficiency of the evidence to support their convictions for kidnapping thei r victims in the course of a carjacking (counts 1 & 2) and6 simple kidnapping (counts 3 & 4). On ap peal, 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 exclusiv e province to assess w itness 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 exis tence of every fact reasonably
inferred from the evidence in su pport 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 th e 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 circumstance s could be reconciled with a contrary finding. ( People v. Bean (1988) 46 Cal.3d 919, 932-933.) Thus, a defendant attacking the suffi ciency of the evidence “bear s an enormous burden.” ( Sanchez , at p. 330.) Defendants contend they did not co mmit 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 becau se “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 m ove 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 cons titutes 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 of7 harm’” are also relevant. ( People v. Bell (2009) 179 Cal.App.4th 428, 436.) Thus, the jury’s consideration may include “such factor s 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 inhe rent in a victim’s foreseeable attempts to escape and the attacker’s enhanced opport unity to commit additi onal crimes. [Fn. omitted.]” ( Martinez , at p. 237; see People v. Shadden (2001) 93 Cal.App.4th 164, 169 [movement of victim nine feet suffici ent 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 asporta tion by pulling into the church parking lot, ignoring Tercero’s contrary directions to follow Co rtez’s car. The jury, however, reasonably could conclude a kidnapping o ccurred as soon as Tercero ente red the car, pointed his gun at Sarah and Lacy, and directed Sarah to “dri ve” 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 voliti on but because she was “scared,” and although she only traveled a few blocks before atte mpting to escape, the jury reasonably could conclude this compelled movement in a vehi cle 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 attemp ts became more dangerous b ecause they were moving at high rates of speed in a vehicle, and act ually resulted in substantial harm when8 defendants pistol whipped them in the park ing 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,” ignor e 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 comma nded at gunpoi nt and not by choice. Ample evidence supports the kidnapping charges (counts 3 & 4) and the kidnapping element of kidnapping during th e commission of a carjacking (counts 1 & 2).
Substantial evidence also supported the carjacking element of counts 1 and 2. Kidnapping during the commissi on of a carjacking requires a completed carjacking. ( People v. Contreras (1997) ) 55 Cal.App.4th 760, 7 65.) “‘Carjacking’ is the felonious taking of a motor vehicle in the pos session of another . . . against his or her will
and with the intent to either permanently or temporarily de prive 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 carjacki ng 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 [n oting Legislature was “specifically
concerned with the ‘considerab le increase in the number of persons who have been
abducted’ in their vehicles,” italics a dded].) Accordingly, the jury reasonably could conclude defendants accomplished the necessary temporary taking of the victims’ car when Tercero gained control over the vehicl e by directing Sarah at gunpoint where to
drive. Defendants’ substantial evid ence challenge is without merit.

2. Conceded Reversal on the Lesse r-Included Simple Kidn apping Offenses The Attorney General concedes defe ndants’ convictions on counts 3 and 4 for simple kidnapping of Sarah and Lacy must be reversed as lesse r-included offenses of9 counts 1 and 2, kidnapping du ring the commission of a carjacking. Both sets of offenses
were based on the same forcible movement of th e 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 co nviction on that offense is controlling, and the conviction of the le sser 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 Clai m Regarding Counts 3 and 4
Because his convictions on counts 3 a nd 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 Support ed an Instruction on Reasonable Belief in the Victims’ Consent to Kidnapping Cortez contends the trial court erroneou sly failed to instruct the jury that guilt on the kidnapping-related charges requ ired a finding he di d not “actually and reasonably believe” the victims “consented to the[ir] movement ” when they were allegedly kidnapped. A reasona ble belief the victim consente d to the physical movement necessary for kidnapping is a comple te 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 th e requirement “[t]he defendant did not actually and reasona bly believe that the other person consented
to the movement.” The trial court must give the optional lang uage only when the evidence shows a potentially reas onable belief in consent. ( People v. Greenberger (1997) 58 Cal.App.4th 298, 375 ( Greenberger ).) Cortez acknowledges his trial counsel ag reed to the trial court’s decision to instruct the jury without refe rence 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 in struction. We address the issue because if substantial evidence supports a reasonable belief the vict im 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 necessa ry because the evidence supported
neither the conclusion the vic tims consented to their movement, nor a good faith belief in
the women’s consent. In a violent confront ation after the defendants bumped the victims’ car, Tercero entered the car with a gun and poi nted it at Sarah and Lacy. Cortez argues
that because Tercero directed Sarah to follo w 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. Cort ez surmises from this11 sequence of events that the jury could infer Cort ez returned to his car before the encounter became hostile, and the jury ther efore 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 re asonable belief they freely consented to Tercero accompa nying them after the fender bender. The problem with the infe rences Cortez draws is th at they are not supported by any evidence. He relies instead merely on conjecture. For example, the evidence
showed that the women interact ed 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 “r an back” from beside La cy’s window to the other car. The evidence does not support th e 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 expl ained, “They sped around us as we were pulling out of the Ralph’s park ing lot.” Accordingly, be cause 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 ju ry on the topic. Nor was co unsel ineffective in failing to12 request an instruction that no evidence supported. Cortez’s claims are therefore without
merit. 1

2. Instruction on Othe r 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 potentia l lesser-included offenses. Th e trial court instructed the jury on carjacking, attempted carjacking, and false imprisonment as lesser-included
offenses under counts 1 and 2. On the kidna pping 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 lesse r offense of kidnapping. Defendants argue the trial court should have inst ructed 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, an d 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 appellat e attorney suggeste d the evidence was consistent with the conclusion another pers on 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 co nsequently Cortez may have reasonably believed the women followe d the Yaris of their own volition and not by force. The contention is forfe ited 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 evid ence showed the violen t 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 Co rtez’s car sped from behind and around Sarah’s car is similarly inco nsistent with the notion Cortez was unaware of what was happening in Sarah’s car. No evidence supported that conclu sion, and therefore the trial court was not required to give the instruc tion 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 kidn apping and attemp ted 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 offe nses under counts 3 and 4, the trial court properly instructed the ju ry 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 coun ts 1 and 2 if the jury had been instructed on attempted kidnapping and attempted kidn apping during the commission of a carjacking. Simply put, the jury rejected the notion defendants’ ac ts 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 carj acking or attempted kidnapping, we cannot say it is reasonably likely incl uding 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 offens e 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 coun ts 3 and 4, counts 1 and 2 did not turn on whether the perpetrator committed kidnapping for the purpose of committing an additional offense14 such as robbery. Rather, ki dnapping 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 car jacking, but did not gain control of the vehicle, and only attempted to kidnap the vi ctims, 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. Si mply 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 th em and not kidnap them.
III
DISPOSITION
Defendants’ convictions in counts 3 and 4 for simple kidnapping are reversed. The judgment is a ffirmed in all other respects.

ARONSON, J.
WE CONCUR:

MOORE, ACTING P. J.

IKOLA, J.