Filed 9/9/16 P. v. Harrelson CA4/1

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

JOHN ANTHONY HARRELSON,

Defendant and Appellant.

 D068969

 (Super. Ct. No. SCN325418)

APPEAL from a judgment of the Superior Court of San Diego County, Robert J. 

Kearney, Judge. Affirmed in part, reversed in part.

Patricia J. Ulibarri, under appointment by the Court of Appeal, for Defendant and 

Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney 

General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Christine 

Levingston Bergman, Deputy Attorneys General, for Plaintiff and Respondent.
2

A jury convicted defendant of kidnapping and carjacking after he drove away in a 

car in which a 13-year-old girl was sitting in the backseat. Defendant let the victim out of 

the car about 242 feet from where he took it. On appeal, defendant challenges the 

sufficiency of the evidence supporting the jury's finding on the asportation element of 

kidnapping. He also contends the trial court erred by not instructing the jury sua sponte 

(1) to consider whether his movement of the victim was merely incidental to his taking of 

the car so as to defeat the asportation element, and (2) regarding false imprisonment as a 

lesser included offense of kidnapping. Alternatively, defendant contends his counsel's 

failure to request jury instructions on these points constituted constitutionally inadequate

representation.

We conclude substantial evidence supports the jury's finding regarding 

asportation. However, we also conclude the trial court erred prejudicially by not 

instructing the jury to consider whether defendant's movement of the victim was merely 

incidental to his taking of the car. We reverse the judgment on the kidnapping count on 

this basis, and need not reach defendant's remaining arguments. In all other respects, we 

affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Prosecution Case

On July 27, 2013, at about 7:40 a.m., Gilbert F. drove his son and 13-year-old 

daughter (Gretchen) to a bagel shop in a shopping center in Oceanside. Gilbert and his 

son got out of the car and went into the bagel shop, while Gretchen stayed in the backseat 
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listening to music and using a social media application on her cell phone. Gilbert took 

the key fob for his car's keyless ignition with him, but left the engine running.

About one minute later, defendant opened the driver's door of the car and got in. 

Defendant looked over his shoulder to back out, and saw Gretchen. She asked defendant 

what he was doing, to which he responded, "I'm taking this car." Gretchen said, "You 

can't take this car," but defendant insisted, "I'm taking this car." Defendant backed out of 

the parking space and began driving through the parking lot toward an intersection that 

leads to a freeway on-ramp.

Gretchen feared for her safety. As defendant drove through the parking lot at a 

speed "slightly less than racing," Gretchen partially opened the car door in contemplation 

of escaping. When the car approached the intersection that leads to the on-ramp, 

defendant stopped abruptly and said, "Get out if you're going to get out." Gretchen got 

out of the car without her shoes on, saw defendant drive off, then walked barefoot back to 

the bagel shop and told her father what had just happened. The ordeal lasted "[a]bout a 

minute and a half to two minutes," and Gretchen traveled about 242 feet in the car with 

defendant.

About one week later, a patrol officer located Gilbert's car in a residential area less 

than one mile from the bagel shop. The battery was missing, and there was minor 

damage to the car's exterior. Defendant's DNA was found on the car's gearshift, and 

Gretchen identified defendant in a photographic lineup.
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Defense Case

Defendant testified in his own defense. He denied taking the car or Gretchen. He 

claimed his only contact with the car occurred after he observed it abandoned in the 

residential area. He admitted he stole the battery from it after the battery in his own car 

died.

Information, Jury Verdict, and Sentencing

Defendant was charged by amended information with kidnapping a victim under 

14 years of age (Pen. Code,1 §§ 207, subd. (a), 208, subd. (b)), and carjacking (§ 215, 

subd. (a)). A jury convicted defendant on both counts. 

Defendant admitted one felony strike prior conviction allegation, one prior serious 

felony conviction allegation, two prison prior conviction allegations, and one out-on-bail 

enhancement allegation. The trial court sentenced defendant to 21 years.

DISCUSSION

I. Relevant Principles Regarding Kidnapping

"Generally, to prove the crime of kidnapping, the prosecution must prove three 

elements: (1) a person was unlawfully moved by the use of physical force or fear; (2) the 

movement was without the person's consent; and (3) the movement of the person was for 

a substantial distance." (People v. Jones (2003) 108 Cal.App.4th 455, 462 (Jones); 

 

1 Undesignated statutory references are to the Penal Code.
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§ 207, subd. (a).)2 This last element—movement for a substantial distance—is known as 

" 'asportation.' " (People v. Bell (2009) 179 Cal.App.4th 428, 435 (Bell).) 

Historically, "the 'actual distance' the victim was moved was the sole factor for 

determining whether the evidence showed asportation for purposes of simple 

kidnapping." (Bell, supra, 179 Cal.App.4th at p. 436; see People v. Stanworth (1974) 11 

Cal.3d 588, 601, 603; People v. Caudillo (1978) 21 Cal.3d 562, 572, 574; People v. 

Martinez (1999) 20 Cal.4th 225, 234 (Martinez).) However, in Martinez, a case 

involving the simple kidnapping of a victim under the age of 14, the California Supreme 

Court clarified that in determining whether movement of the victim is " ' "substantial in 

character," ' " the trier of fact is not confined to considering only the actual distance 

moved, but rather, "should consider the totality of the circumstances." (Martinez, at 

p. 237.) "Thus, in a case where the evidence permitted, the jury might properly consider 

not only the actual distance the victim is moved, but also such factors as whether that 

movement increased the risk of harm above that which existed prior to the asportation, 

decreased the likelihood of detection, and increased both the danger inherent in a victim's 

foreseeable attempts to escape and the attacker's enhanced opportunity to commit 

additional crimes." (Ibid.) The Martinez court emphasized, however, "that contextual 

 

2 Section 207, subdivision (a) defines kidnapping in relevant part as follows: 

"Every person who forcibly, or by any other means of instilling fear, steals or takes, or 

holds, detains, or arrests any person in this state, and carries the person into another 

country, state, or county, or into another part of the same county, is guilty of kidnapping." 

Additionally, section 208, subdivision (b) prescribes the punishment "[i]f the person 

kidnapped is under 14 years of age at the time of the commission of the crime."
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factors, whether singly or in combination, will not suffice to establish asportation if the 

movement is only a very short distance." (Ibid.)

The Martinez court added: "In addition, in a case involving an associated crime, 

the jury should be instructed to consider whether the distance a victim was moved was 

incidental to the commission of that crime in determining the movement's substantiality." 

(Martinez, supra, 20 Cal.4th at p. 237; see In re Earley (1975) 14 Cal.3d 122, 129, fn. 9

["When an 'associated crime' is involved, there can be no violation of section 207 unless 

the asportation is more than incidental to the commission of that crime."].) An 

" 'associated crime' " is "any criminal act the defendant intends to commit where, in the 

course of its commission, the defendant also moves a victim by force or fear against his 

or her will. It is not more complicated than that." (Bell, supra, 179 Cal.App.4th at 

pp. 438-439.)

II. Substantial Evidence

Defendant contends there was insufficient evidence to support a finding of 

asportation or that the kidnapping was more than incidental to his taking of the car. We 

disagree.

A. Standard of Review

" 'The standard of appellate review for determining the sufficiency of the evidence 

is settled. On appeal, " 'we review the entire record in the light most favorable to the 

judgment to determine whether it contains substantial evidence—that is, evidence that is 

reasonable, credible, and of solid value—from which a reasonable trier of fact could find 

the defendant guilty beyond a reasonable doubt.' [Citation.]" [Citation.] In conducting 
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such a review, we " 'presume[] in support of the judgment the existence of every fact the 

trier could reasonably deduce from the evidence.' [Citation.]" [Citations.] "Conflicts 

and even testimony which is subject to justifiable suspicion do not justify the reversal of 

a judgment, for it is the exclusive province of the trial judge or jury to determine the 

credibility of a witness and the truth or falsity of the facts upon which a determination 

depends. [Citation.] We resolve neither credibility issues nor evidentiary conflicts; we 

look for substantial evidence." ' " (People v. Harris (2013) 57 Cal.4th 804, 849.) 

"If our review of the record shows that there is substantial evidence to support the 

judgment, we must affirm, even if there is also substantial evidence to support a contrary 

conclusion and the jury might have reached a different result if it had believed other 

evidence." (People v. Riley (2015) 240 Cal.App.4th 1152, 1165-1166 (Riley).) 

B. Asportation

Considering " 'the totality of the circumstances' " (Martinez, supra, 20 Cal.4th at 

p. 237), we conclude substantial evidence supports the jury's finding of asportation. 

Although section 207 "does not speak in terms of a movement of any specific or exact 

distance" (Martinez, at p. 236), the jury could reasonably conclude the actual distance 

defendant moved Gretchen—242 feet—is substantial, particularly in light of the 

contextual factors identified in Martinez. (See, e.g., People v. Stender (1975) 47 

Cal.App.3d 413, 423 [finding movement of 200 feet substantial under pre-Martinez

standard, particularly where the movement "accomplished the purpose of removing the 

victim from the ready help of her mother"].) The jury could reasonably infer that by

driving Gretchen away from the bagel shop—and her father and brother—and toward the 
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freeway on-ramp, defendant decreased his risk of detection, increased the risk of harm to 

Gretchen, and enhanced his opportunities to commit additional crimes. Further, 

defendant's act of driving through the parking lot at a speed "slightly less than racing"

increased the danger inherent in Gretchen's foreseeable attempts to escape. Indeed, 

Gretchen so feared for her safety that she partially opened the car door as defendant sped 

through the parking lot. Thus, substantial evidence supports the jury's finding of 

asportation.

C. Movement Incidental to an Associated Crime

Substantial evidence also supports the jury's finding that defendant's movement of 

Gretchen was more than incidental to his taking of her father's car. Although the 

evidence may be susceptible to defendant's preferred interpretation—an issue we address 

below in the context of instructional error—the substantial evidence review standard asks 

only whether substantial evidence supports the fact finder's determination. (Riley, supra,

240 Cal.App.4th at pp. 1165-1166.) Here, it does.

Gretchen testified defendant saw her when he looked over his shoulder to back the 

car out. The jury could reasonably have inferred that, at that point, defendant could have 

set Gretchen free and still achieved his goal of taking the car. The fact defendant did not 

do so supports the reasonable inference that he detained and moved Gretchen for some 

other purpose not incidental to taking the car.

We are not persuaded by defendant's citation to cases that found insufficient 

evidence of asportation where the victim's movement was merely incidental to associated 

crimes. (See Cotton v. Superior Court (1961) 56 Cal.2d 459, 463-464 [movement 
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incidental where union picketers moved migrant workers 15 feet during riot]; People v. 

Daniels (1969) 71 Cal.2d 1119, 1126 [movement incidental where defendants, "in the 

course of robbing and raping three women in their own homes, forced them to move 

about their rooms for distances of 18 feet, 5 or 6 feet, and 30 feet respectively"].) The 

cases were decided before Martinez clarified the factors relevant to the asportation 

analysis, and involve different associated crimes and substantially shorter distances than 

are at issue here. (See People v. Thomas (1992) 2 Cal.4th 489, 516 ["When we decide 

issues of sufficiency of evidence, comparison with other cases is of limited utility, since 

each case necessarily depends on its own facts."].) 

III. Instructional Error

As we alluded to above, although the record may also support a finding that 

defendant's movement of Gretchen was merely incidental to his taking of the car, the trial 

court did not instruct the jury it could consider this as a factor in determining the 

asportation element. Defendant contends this was prejudicial error. We agree.

A. Background

During the conference on jury instructions, the trial court stated it intended to 

instruct the jury regarding kidnapping with the version of CALCRIM No. 1201 submitted 

by the prosecution. Both counsel agreed. 
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A moment later, the trial court noted that CALCRIM No. 1201 requires that "[t]he 

defendant move[] the child with an illegal intent or for an illegal purpose."3 The court 

added, "I believe that we . . . have to define for the jurors what the illegal intent or 

[illegal] purpose is and then define that for them." After conferring with counsel, the 

court indicated it would modify CALCRIM No. 1201 to reflect that the illegal intent or 

purpose was unlawful vehicle-taking in violation of Vehicle Code section 10851. 

Defense counsel did not object to the modified version or request any additional 

modifications. 

Accordingly, the trial court instructed the jury regarding kidnapping with the 

following modified version of CALCRIM No. 1201:

"The defendant is charged in Count 1 with kidnapping a child in 

violation of Penal Code section 207. [¶] To prove that the 

defendant is guilty of this crime, the People must prove that:

"1. The defendant used physical force to take and carry away an

unresisting child;

"2. The defendant moved the child a substantial distance;

"3. The defendant moved the child with an illegal intent or for an

illegal purpose (see Unlawful Taking or Driving of Vehicle,

instruction [CALCRIM No.] 1820);[4]

 

3 "[T]his element was created by our Supreme Court to ensure that an innocent 

carrying away of a very young victim would not result in a kidnapping conviction." 

(Jones, supra, 108 Cal.App.4th at p. 466; see People v. Oliver (1961) 55 Cal.2d 761, 765 

[innocent carrying away may arise from "find[ing] a young child alone on the highway,"

"at the edge of a body of water in which he might drown," or "at the edge of a precipice 

over which he might fall"].) This element is now codified in section 207, subdivision (e).

4 The court instructed the jury regarding vehicle taking with CALCRIM No. 1820 

as follows: "To prove that defendant is guilty of this crime, the People must prove that: 
11

"AND

"4. The child was under 14 years of age at the time of the

movement.

"Substantial distance means more than a slight or trivial distance.

In deciding whether the distance was substantial, consider all the

circumstances relating to the movement. Thus, in addition to

considering the actual distance moved, you may also consider other

factors such as whether the movement increased the risk of physical

or psychological harm, increased the danger of a foreseeable escape

attempt, gave the attacker a greater opportunity to commit additional

crimes, or decreased the likelihood of detection. . . ."

B. Standard of Review

"A trial court bears a sua sponte duty to instruct the jury on the essential elements 

of an offense (People v. Flood (1998) 18 Cal.4th 470, 504 . . .), and ' "on the general 

principles of law governing the case," ' i.e., ' " 'those principles of law commonly or 

closely and openly connected with the facts of the case before the court' " ' (People v. 

Michaels (2002) 28 Cal.4th 486, 529-530 . . .). A 'criminal defendant is entitled to 

adequate instructions on the defense theory of the case' if supported by the law and 

evidence. (Conde v. Henry (9th Cir. 1999) 198 F.3d 734, 739.)" (Bell, supra, 179 

Cal.App.4th at pp. 434-435.)

" 'An appellate court reviews the wording of a jury instruction de novo' (People v. 

O'Dell (2007) 153 Cal.App.4th 1569, 1574 . . .), and determines whether 'the instructions 

 

[¶] 1. The defendant took or drove someone else's vehicle without the owner's consent; 

[¶] AND [¶] 2. When the defendant did so, he intended to deprive the owner of 

possession or ownership of the vehicle for any period of time. [¶] A taking requires that 

the vehicle be moved for any distance, no matter how small. [¶] A vehicle includes a 

passenger vehicle."
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are complete and correctly state the law' (People v. Andrade (2000) 85 Cal.App.4th 579, 

585 . . .)." (Bell, supra, 179 Cal.App.4th at p. 435.)

C. Analysis

Preliminarily, we decline the Attorney General's invitation to find defendant 

forfeited this challenge by acquiescing in the proposed instruction and failing to request 

the instruction he now contends was required. We will address the instructional error 

because it affects defendant's substantial rights (People v. Flood, supra, 18 Cal.4th at 

p. 482, fn. 7; § 1259) and to forestall defendant's claim of constitutionally inadequate 

representation (People v. Mattson (1990) 50 Cal.3d 826, 854).

On the merits, Bell, supra, 179 Cal.App.4th 428 is instructive. In that case, the 

defendant fled from police in his car while his estranged wife was an unwilling 

passenger. (Id. at pp. 431-432.) The defendant let his wife out of the car at an 

intersection about 210 feet away, then drove recklessly while unsuccessfully attempting 

to evade the police. (Id. at p. 433.) A jury convicted the defendant of evading police 

while driving recklessly, simple kidnapping, and other offenses. (Ibid.) On appeal, the 

defendant argued the trial court erred by omitting from the pattern jury instruction certain 

bracketed language that "would have prohibited the jury from convicting defendant of 

simple kidnapping if his movement of [the victim] was merely incidental to his reckless 

flight from the police." (Id. at p. 434.)5 The Court of Appeal agreed.

 

5 The bracketed language, from a prior version of CALCRIM No. 1215, read: 

"[The defendant is also charged in Count ____ with ____ <insert crime>. In order for the 

defendant to be guilty of kidnapping, the other person must be moved or made to move a 
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The Bell court noted the California Supreme Court's admonition in Martinez that 

" 'in a case involving an associated crime, the jury should be instructed to consider 

whether the distance a victim was moved was incidental to the commission of that crime 

in determining the movement's substantiality.' " (Bell, supra, 179 Cal.App.4th at p. 437, 

quoting Martinez, supra, 20 Cal.4th at p. 237.) The Bell court defined an " 'associated 

crime' " as "any criminal act the defendant intends to commit where, in the course of its 

commission, the defendant also moves a victim by force or fear against his or her will." 

(Bell, at pp. 438-439.) The Bell court concluded the defendant's reckless evasion was an 

associated crime: "The evidence supported a finding that defendant intended to evade the 

police and did so recklessly. And from the evidence, the jury could have found that in 

the course of the evasion, [the victim] was moved by force or fear against her will. 

Under these facts, the court should have instructed the jury that, in determining whether 

defendant's movement of [the victim] was substantial, they could consider whether the 

movement was merely incidental to the crime of evasion (as one factor among others)." 

(Id. at p. 439.) Thus, the Bell court concluded the trial court had a sua sponte duty to 

instruct the jury regarding the associated-crime factor of asportation. (Ibid.) 

The Bell court found the trial court's failure to instruct in this regard rendered the 

instruction "incomplete" and thus "violated defendant's right to a correct jury instruction 

on all the elements of the offense of simple kidnapping." (Bell, supra, 179 Cal.App.4th 

at p. 439.) The court further found this error was prejudicial under the applicable 

 

distance beyond that merely incidental to the commission of ____ <insert crime>.]" 

(Bell, supra, 179 Cal.App.4th at p. 434.)
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Chapman6 standard because "no other jury instructions, jury findings or counsel's 

arguments show[ed] the jurors knew they had to acquit defendant of kidnapping if they

found his movement of [the victim] was not substantial, taking into account (as one factor 

among others) whether his movement of [the victim] was merely incidental to the 

evasion." (Bell, at pp. 439-440; see People v. Delacerda (2015) 236 Cal.App.4th 282, 

293-294 [prejudicial error under Chapman for failing to instruct jury regarding domestic 

violence battery as associated crime to simple kidnapping].)

Likewise here, the trial court erred prejudicially by not instructing on the 

associated-crime factor. We are unpersuaded by the Attorney General's argument that 

carjacking was not an associated crime. To the contrary, the evidence shows defendant 

intended to carjack Gretchen, and that during the carjacking he moved her by force or 

fear against her will. "It is not more complicated than that." (Bell, supra, 179 

Cal.App.4th at p. 439.) The trial court should have instructed the jury regarding the 

associated-crime factor. (See Martinez, supra, 20 Cal.4th at p. 237; Bell, at p. 439.)

The parties dispute the applicable standard in assessing prejudice: defendant 

argues Chapman's harmless-beyond-a-reasonable-doubt standard applies, while the 

Attorney General argues the Watson7 reasonably-probable standard applies. We need not 

 

6 Chapman v. State of California (1967) 386 U.S. 18, 24.

7 People v. Watson (1956) 46 Cal.2d 818, 836 (reversal required only if "it is 

reasonably probable that a result more favorable to the [defendant] would have been 

reached in the absence of error").
15

decide which standard governs, because we would find prejudice even under the less 

stringent Watson standard.

First, the jury instructions, taken as a whole, did nothing to ameliorate the 

prejudice. Although, as the Attorney General argues, CALCRIM No. 1201 instructed the 

jury to "consider all the circumstances relating to the movement" (italics added), the 

instruction made no reference to the requirement that the jury consider whether such 

movement was merely incidental to defendant's taking of the car. In addition, the fact the 

trial court modified CALCRIM No. 1201 to reference Vehicle Code section 10851 as the 

basis for defendant's illegal intent or purpose suggests both that (1) the trial court may 

have considered defendant's movement of Gretchen to be incidental to an associated 

crime, and (2) jurors may have received the mistaken impression they could convict 

defendant of kidnapping so long as he intended to unlawfully take the car, regardless of 

whether his movement of Gretchen was incidental to that taking.

Second, the prosecutor's closing argument further supports a finding of prejudice. 

As a factual matter, the prosecutor conceded "it's extremely likely the person that got into 

this car didn't know Gretchen was there." This strongly suggests the jury could 

reasonably have found defendant's movement of Gretchen was merely incidental to his 

taking of the car. In addition, although the prosecutor attempted to inform the jury it 

could consider whether the movement was incidental to the carjacking, the prosecutor 

misspoke, stating: "Was the distance the other person was moved beyond that merely 

incidental to the commission of kidnapping?" (Italics added.) This did not convey to 

jurors that they could consider whether defendant's movement of Gretchen was merely 
16

incidental to the carjacking. On this record, it is reasonably probable defendant would 

have obtained a more favorable result had the jury been properly instructed.

In sum, the record here required that the trial court instruct the jury to consider (as 

one of several factors) whether the defendant's movement of Gretchen was merely 

incidental to an associated crime. The court's failure to do so was prejudicial, and no 

other jury instruction, jury finding, or argument of counsel ameliorated the error.

DISPOSITION

The judgment is reversed as to the simple kidnapping conviction. The balance of 

the judgment, not having been challenged on appeal, is affirmed.

HALLER, J.

WE CONCUR:

HUFFMAN, Acting P. J.

O'ROURKE, J.