Filed 11/6/14 P. v. Louie CA4/1 

NOT TO BE PUBLISHED IN OFFICIAL REPORTS 

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT 

DIVISION ONE 

STATE OF CALIFORNIA 

THE PEOPLE, 

 Plaintiff and Respondent, 

 v. 

DANNY LOUIE, 

 Defendant and Appellant. 

 D065964 

 (Super. Ct. No. FSB1201283) 

 APPEAL from a judgment of the Superior Court of San Bernardino County, 

R. Glenn Yabuno, Judge. Affirmed in part; reversed in part with directions. 

 Law Office of Allison H. Ting and Allison H. Ting, under appointment by the 

Court of Appeal, for Defendant and Appellant. 

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

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

Mizell, Deputy Attorneys General, for Plaintiff and Respondent. 
2 

 Danny Louie appeals from a judgment convicting him of witness intimidation, 

kidnapping during carjacking, and other offenses, with gang enhancements. Challenging 

the gang enhancements, he asserts there was instructional error and/or insufficient 

evidence for two of the elements required for the enhancement (the primary activity 

element and the gang benefit element). He also raises several challenges to his 

kidnapping during carjacking conviction, including the court (1) erred in denying his 

request for an instruction on the lesser offense of simple kidnapping; (2) did not instruct 

the jury that the burden of proof for the defense of mistaken belief in consent was on the 

prosecution, not the defense; and (3) erred in failing to instruct the jury that it should 

view his admissions with caution. We reject these contentions of reversible error. 

 The Attorney General acknowledges that two of defendant's convictions must be 

reversed: (1) a gang participation count because defendant did not engage in the criminal 

conduct with other gang members, and (2) a carjacking count because it is a lesser 

included offense of kidnapping during carjacking. We agree, and accordingly reverse 

and dismiss the gang participation and carjacking convictions. In all other respects, the 

judgment is affirmed. 

FACTUAL AND PROCEDURAL BACKGROUND 

 The charged offenses arose from incidents that occurred on March 24 and 25, 

2012. In the first incident, defendant threatened Erma Hollins that she would be killed if 

she told police that her car had been stolen a few hours earlier. In the second incident the 

following day, defendant, while fleeing from the police, committed a kidnapping and 

carjacking against a second victim (identified at trial as John Doe). Defendant is a 
3 

member of the Five Times Hometown Crip Gang ("Five Times"), and he has several 

gang-related tattoos, including a tattoo of a five-point star on his cheek. His offenses 

were committed in a neighborhood claimed by this gang. 

Witness Intimidation of Hollins 

 The March 24 witness intimidation occurred after a man (apparently defendant's 

cousin) approached Hollins outside a liquor store and asked her for a ride to a location 

about two blocks away. Hollins did not know the man, but she had seen him in the area 

before. Although she felt a little nervous, she agreed to provide the ride because the 

distance was not very far. When Hollins drove into an alley, the man told her to get out 

of her car. Hollins complied because she was afraid, and the man drove away in her car. 

 Hollins walked back to the liquor store; unsuccessfully tried to get someone to call 

the police for her; waited a couple of hours hoping her car would be returned; and 

eventually flagged down a police car. When defendant (who was getting into the 

passenger seat of a van) saw the police car approaching, he told Hollins "if you tell the 

police about my cousin stealing your car we're going to kill you." Defendant and the 

driver of the van then left the area. Because of defendant's threat, Hollins was afraid to 

report the crime, but she did so. Sometime later, the police found her car. 

 A police officer who spoke with Hollins at the scene testified that she appeared 

"pretty scared"; she was crying "off and on"; and she told the police she was "scared to 

death." When contacted by the police, Hollins identified defendant as the person who 

threatened her, but at trial she recanted this identification. Police witnesses testified that 

when she was interviewed at the scene and when a detective interviewed her the next day, 
4 

she stated the man who made the threat about killing her had a star tattooed on his face. 

When the detective showed her a photo lineup of six men with star tattoos on their faces, 

she identified defendant as the man who had threatened her.1 At trial, Hollins stated 

defendant had a star tattoo on his face, and she had seen him at the liquor store on 

previous occasions although she did not personally know him. However, she testified 

defendant was not the man who threatened her and she merely told the police he was at 

the liquor store and he might be able to help identify the person who took her car. 

 To support that Hollins was afraid to identify the perpetrator of the threat, the 

detective testified that at Hollins's request he interviewed her at a friend's apartment; she 

told him she was staying with a friend because she feared the people involved in the case 

would find her and harm or threaten her; and when she looked at the photo lineup she 

appeared "very scared" and said "he's in there" but she was "afraid to get anybody in 

trouble." An investigator for the district attorney's office testified Hollins told him she 

was afraid to come to court; she knew defendant and did not want to get him in trouble; 

and she wanted to give him a second chance. Although Hollins claimed at trial that she 

did not know about a gang called Five Times, she acknowledged she told the police she 

did not want the case prosecuted because she was afraid of gang retaliation.2

 

1 The detective also showed Hollins a photo lineup of possible suspects for the 

taking of her car, but she was unable to make an identification. 

2 Hollins also acknowledged that she had been approached by defendant's mother 

and his girlfriend about defendant's case, and at the mother's request Hollins signed a 

notarized statement stating defendant was not the person who took her car or who 

threatened her. 
5 

Kidnapping and Carjacking Against Doe 

 The March 25 kidnapping/carjacking occurred while Doe, accompanied by his 

nephew (David), was driving out of an apartment complex located near the liquor store 

where Hollins was threatened. Police witnesses testified they were at the apartment 

complex looking for defendant because he had been identified by Hollins as a suspect in 

the incident the previous day. The police spotted defendant standing under a carport, 

along with several other males including another member of the Five Times gang. As a 

marked police vehicle approached the group of males, defendant and the other gang 

member took off running. During an ensuing police pursuit, officers saw Doe's vehicle 

speeding away from the area. 

 Doe testified that as he was leaving the complex, defendant was running across the 

parking lot and Doe slammed on the brakes to avoid hitting defendant. When defendant 

noticed David sitting in the passenger seat of the car, defendant ran up to the passenger 

door, spoke to David, and entered the car. Doe testified the radio was playing in the car 

and he did not hear what defendant said when he spoke to David. According to a police 

officer who interviewed Doe after the incident, Doe reported that defendant "jumped" 

into the car and said "get the fuck out of here or I will fuck you up," and when Doe 

refused to drive defendant said "just drive, motherfucker, get out of here." 

 Doe testified he had never seen defendant before; he did not give defendant 

permission to enter the car; and he "[a]t first was kind of puzzled" and did not "know 

really what was going on." Because it appeared David knew defendant, Doe took his foot 

off the brake and, without pressing the gas pedal, allowed the car to roll slowly through 
6 

the parking lot as he tried to figure out what to do. When Doe saw police cars pass by, he 

assumed defendant was running from the police and he repeatedly stopped the car and 

told defendant to get out of the car. Defendant, who was lying down in the back seat in 

an attempt to hide, did not comply. 

 Defendant ordered Doe to drive "Motherfucker," and defendant and David were 

repeatedly yelling at Doe to "go, go, go." Doe did not want to be involved with someone 

who was running from the police and did not want to continue driving, but he felt he was 

being forced to do so. He was afraid because defendant was "frantic, a little excited, 

sweating and covered in tattoos"; he thought defendant was a gang member who was 

being chased by the police; he did not know defendant and did not know what defendant 

would do; and he was worried defendant might have a weapon. 

 After driving for about one and one-half miles, Doe decided to try to escape from 

defendant by going to a gas station because it was a public place with cameras. Doe 

parked the car at the gas station, got out of the vehicle with the car keys, and walked 

away towards a nearby market.3 Meanwhile (unbeknownst to Doe), the police had been 

pursuing Doe's vehicle in an undercover vehicle. When the unmarked police vehicle 

arrived at the gas station, the officers saw David and defendant leave the car and enter the 

gas station store, while Doe walked away in another direction. The officers detained the 

three males. When interviewed at the scene, Doe was "tearing up," "very emotional," and 

"very upset," and he told the police he did not stop driving because he was afraid for his 

 

3 Doe testified that at the time of the incident he was on summary probation and he 

did not have a driver's license, but what concerned him was getting away from defendant. 
7 

life. Doe testified he knew about the Five Times gang, and he was afraid to testify 

because he did not want anything to happen to his friends or family. 

Gang Expert's Testimony 

 The prosecution's gang expert (Detective Nelson Carrington) testified that the Five 

Times gang started in the 1980's (originally under a different name), and in March 2012 

the gang had over 80 members. Five Times gang members used several special tattoos, 

including a five-point star. By the late 1990's and early 2000's, the gang had become "so 

violent" that the city imposed a gang injunction on it. The injunction, which can restrict 

even "loitering in the neighborhood with another gang member," is placed only on gangs 

that "are considered the worst." Defendant is one of the gang members listed on the gang 

injunction. 

 Detective Carrington testified he has investigated crimes committed by Five Times 

gang members, including narcotics sales, robberies, firearm possession, and shootings, 

and these crimes are the gang's primary activities. He has also investigated the crimes of 

intimidation, threats, and vehicle theft committed by the gang's members. Detective 

Carrington described several specific convictions incurred by Five Times gang members, 

including convictions in May 2008 for carrying a concealed firearm; in October 2010 for 

possession for sale of a controlled substance (methamphetamine); in August 2011 for 

criminal threats; and in December 2011 for murder with personal discharge of a firearm. 

 The carrying of a concealed firearm conviction involved a May 2008 incident in 

which the police saw the gang member loitering with other persons in violation of the 

Five Times gang injunction, and while fleeing from the police the gang member dropped 
8 

a firearm which discharged when it hit the ground. The gang member was charged with 

carrying a concealed firearm and resisting arrest, and he pled guilty to the concealed 

firearm charge. The possession for sale conviction involved a July 2010 traffic stop 

incident in which a gang member was found in possession of several individually pieced 

packages of a controlled substance. The gang member was charged with possession for 

sale of cocaine base and methamphetamine with gang benefit enhancements, and he pled 

guilty to possession of methamphetamine for sale. The criminal threats conviction 

involved an August 2011 domestic dispute during which the gang member threatened to 

kill his ex-girlfriend's boyfriend, and when the police arrived the gang member yelled, 

"fuck you, police, I'm Fifth Street Crip." The gang member was charged with making 

criminal threats and resisting an officer with gang benefit enhancements, and he pled 

guilty to the criminal threats charge. The murder conviction arose from a November 

2010 incident in which a gang member shot a rival gang member in the back of the head 

after a gang-related verbal confrontation at a party. After a jury trial, the gang member 

was convicted of first degree murder with enhancements for personal discharge of a gun 

and intent to benefit a gang, and the offense of gang participation. 

 The gang expert testified that gang members want to instill fear in people to gain 

respect, and they want their gang to have a reputation as being "the toughest of the 

tough." They engage in conduct to frighten people who live in the area that they want to 

claim for their gang, so that they can brazenly commit crimes in this neighborhood 

without the people calling the police. Gang members can achieve this respect and fear by 

marking their territory with gang graffiti, committing crimes openly in public, and 
9 

threatening witnesses with physical harm or death if they contact the police. They also 

instill fear by displaying their gang tattoos in a "blatant and public" manner, including on 

their head or face, because "[m]ost people are afraid of a person they suspect to be a gang 

member." 

 The expert opined that when a gang member displaying gang tattoos commits a 

crime by himself, this can benefit the entire gang because the people in the community 

know the crime was committed by a gang member and they fear the entire gang and are 

afraid to tell the police. The expert stated that defendant's gang tattoo on his face showed 

how proud and bold he was about being a member of his gang and the tattoo would 

intimidate people. The expert opined that intimidation benefiting a gang would occur if a 

gang member with "tattoos blazing on the face" approached a carjacking victim in 

territory claimed by the gang and threatened the person with injury if she reported the 

crime. The expert explained the victim will know the person threatening to kill her is a 

gang member because of the five-point star tattoo, and this "will intimidate almost 

anybody." 

Defense and Rebuttal 

 Relevant to the carjacking/kidnapping allegations involving Doe, David testified 

on behalf of the defense that when he saw defendant running at the apartment complex, it 

appeared defendant was "fearing for his life." David rolled down the car window, yelled 

out to defendant "what's going on," and defendant "told [David] can I get out of the 

apartments." David unlocked the back door so defendant could get in the car. Doe asked 

"what's going on? What is he doing? Like, where we going to go[?]" Without making 
10 

any threats, defendant told Doe that he should "[j]ust drive him. Get him out of the 

apartments." Doe continued driving, and as they were leaving the complex a police car 

"zoomed" past them at a fast speed. Doe appeared to be shocked by the way the police 

car sped by, but he continued driving out of the complex. When Doe noticed an officer 

standing on a street corner, Doe said he was on probation and could not be "caught up in 

anything," and he started speeding down the street. 

 In rebuttal, an officer who interviewed David about the incident testified that 

David told him that defendant said "drive motherfucker, get the fuck out of here" when 

he got in the car. David told the officer that he feared for his life because this was 

defendant's "hood" and "he had to live there," which the officer understood to mean that 

David "went along with what . . . defendant . . . was telling him because he feared later 

retaliation" given that they were in Five Times turf. 

Jury Verdict and Sentence 

 For the incident involving Hollins, defendant was convicted of witness 

intimidation by force or threat (count 1, Pen. Code,4 § 136.1, subd. (c)(1)).5 For the 

incident involving Doe, defendant was convicted of carjacking (count 3, § 215, subd. (a)) 

and kidnapping during a carjacking (count 4, § 209.5, subd. (a)). The jury found a gang 

enhancement to be true for each of these counts. (§ 186.22, subd. (b)(1)(C).) Defendant 

 

4 Subsequent unspecified statutory references are to the Penal Code. 

5 Defendant was also charged with carjacking against Hollins (count 2), but the 

court dismissed this count before the case was submitted to the jury. 
11 

was also convicted of participating in a gang based on his conduct against Doe (count 5, 

§ 186.22, subd. (a)). 

 The court sentenced defendant to prison for a 13-year determinate term, plus an 

indeterminate term of 15 years to life. The sentence consisted of three years for count 1 

witness intimidation; 10 years for the gang enhancement on count 1; and 15 years to life 

for count 4 kidnapping during a carjacking. Sentences for the remaining charges were 

stayed. 

DISCUSSION 

I. Reversal of Gang Participation Offense 

 The Attorney General concedes that the count 5 gang participation conviction 

(§ 186.22, subd. (a)), which was based on the incident involving Doe, must be reversed 

because there is no evidence defendant committed the offenses against Doe with another 

gang member. (See People v. Rodriguez (2012) 55 Cal.4th 1125, 1128, 1132.) We agree 

and reverse the gang participation conviction. 

II. Challenges to Gang Enhancement Findings

 The gang enhancement statute provides for increased punishment when the 

defendant committed a crime to benefit a criminal street gang. (§ 186.22, subd. (b).) 

Defendant raises sufficiency of the evidence and/or instructional challenges related to 

two of the elements required for the gang enhancement: (1) the primary activity element, 

and (2) the gang benefit (or gang-related) element. 
12 

A. Legal Principles

 The primary activity element concerns the threshold requirement that the gang 

meet the statutory definition of a criminal street gang. To establish a group as a criminal 

street gang, the prosecution must show the group has "as one of its primary activities the 

commission of one or more" statutorily specified crimes. (§ 186.22, subd. (f).) The 

commission of the statutorily enumerated crimes must be one of the group's principal 

occupations; the occasional commission of the crimes by the group's members does not 

suffice. (People v. Vy (2004) 122 Cal.App.4th 1209, 1222.) This element may be 

established by evidence showing the group's members consistently and repeatedly have 

committed statutorily enumerated offenses, or by testimony from a gang expert stating 

the gang was primarily engaged in the commission of statutorily specified offenses. (Id.

at pp. 1222-1223.) Charged offenses in the current case can be included in the offenses 

relied upon to establish the primary activity element. (Id. at p. 1225, fn. 10.) 

 The gang benefit element is derived from the statutory requirement that the 

charged crimes be "committed for the benefit of, at the direction of, or in association with 

any criminal street gang, with the specific intent to promote, further, or assist in any 

criminal conduct by gang members . . . ." (§ 186.22, subd. (b)(1).) To establish this 

element, the prosecution must show that the crime was gang related. (People v. Albillar 

(2010) 51 Cal.4th 47, 60.) The gang-related requirement may be shown by evidence 

indicating the offense could benefit the gang by enhancing the gang's reputation for 

violence and increasing the gang's stronghold on the neighborhood. (Id. at p. 63; see 

People v. Gardeley (1996) 14 Cal.4th 605, 619.) However, "[n]ot every crime committed 
13 

by gang members is related to a gang"; for example, an offense committed by gang 

members as part of " 'a frolic and detour unrelated to the gang' " is not gang related. 

(Albillar, supra, at pp. 60, 62.) Further, a defendant's mere membership in the gang does 

not suffice to establish the gang enhancement. (Gardeley, supra, at pp. 623-624.) The 

gang enhancement statute may be applied when a gang member commits a crime with no 

showing that other gang members were involved; however, the record must show that the 

gang member's criminal conduct is connected to the activities of the gang. (See People v. 

Rodriguez, supra, 55 Cal.4th at pp. 1138-1139 [enhancement may be applied to lone 

gang member who commits gang-related felony]; People v. Rios (2013) 222 Cal.App.4th 

542, 562-563.) 

 When reviewing defendant's challenges to the sufficiency of the evidence, we 

examine the entire record in the light most favorable to the judgment and presume in 

support of the judgment the existence of every fact the jury could reasonably deduce from 

the evidence. (People v. Albillar, supra, 51 Cal.4th at pp. 59-60.) As to his claims of 

instructional error, we inquire whether there is a reasonable likelihood the jury applied 

the instructions in an erroneous manner. (People v. Butler (2010) 187 Cal.App.4th 998, 

1013.) Generally, if the jury was erroneously instructed on the elements of the gang 

enhancement allegation, reversal is required unless the record shows the error was 

harmless beyond a reasonable doubt. (See People v. Sengpadychith (2001) 26 Cal.4th 

316, 320, 326-327.) 
14 

B. Challenges to the Primary Activity Element 

 Offenses that qualify for the primary activity element include (among others) sale 

or possession for sale of controlled substances, unlawful homicide, assault with a deadly 

weapon or by means of force likely to produce great bodily injury, criminal threats and 

witness intimidation. (§ 186.22, subds. (e)(1), (3), (4), (8), (24), (f).) The jury here was 

instructed that the gang enhancement allegation required a showing that the group has as 

one of its primary activities the commission of "drug sales, murder, assault, criminal 

threats, [and] witness intimidation." The prosecution's gang expert testified the gang's 

primary activities included (among others) narcotic sales and shootings. 

 Challenging the sufficiency of the evidence for the primary activity element, 

defendant argues the record does not support that Five Times consistently and repeatedly 

(as opposed to occasionally) committed the statutorily delineated crimes that establish 

this element. The contention is unavailing. The jury was presented with evidence that 

the gang's primary activities included narcotic sales and shootings (i.e., assault with a 

deadly weapon), and that Five Times gang members had been convicted of first degree 

murder, criminal threats, and (based on the current case) witness intimidation. This 

evidence supports that the gang regularly commits the qualifying crimes of controlled 

substance sales, murder, assault with a deadly weapon, criminal threats and witness 

intimidation. 

 To support his claim that the group's commission of qualifying offenses is only 

sporadic and occasional, defendant points out that the evidence showed the commission 

of only one murder, one criminal threat, and one witness intimidation, and the gang 
15 

expert did not opine that these particular offenses were among the primary activities of 

the gang. These factors do not defeat the jury's finding on the primary activity element. 

First, the fact that the gang expert did not refer to these specific crimes as among the 

gang's primary activities did not preclude the jury from finding that the gang member's 

convictions of these offenses reflected the types of activities the gang was primarily 

involved in. Second, the jury was not required to find that the gang repeatedly engaged 

in one particular qualifying offense; rather, a finding that the gang consistently and 

repeatedly committed qualifying offenses could properly be based on the gang members' 

commission of three different statutorily specified offenses on three separate occasions, 

as well as the gang expert's opinion regarding the other qualifying offenses regularly 

committed by the gang. (See People v. Sengpadychith, supra, 26 Cal.4th at p. 324 

[primary activity element can be shown by evidence of consistent and repeated 

commission of "criminal activity listed in the gang statute"].) 

 Defendant also raises claims of error because in some instances the offenses 

referred to in the prosecution's evidentiary presentation, the instructions, and the gang 

enhancement statute did not match with each other; i.e., the prosecution's evidence 

referred to narcotics sales, possession for sale of a controlled substance and shootings; the 

instructions referred to drug sales and assault; and the statute refers to controlled 

substance sales or possession for sale and assault with a deadly weapon. None of these 

factors create reversible error. Based on the commonly understood meaning of the 

words, we have no doubt the jury understood that narcotics sales, drug sales, and sale of 

controlled substances all refer to the same type of criminal conduct. If the jury 
16 

considered the possession-for-sale conviction to support the primary activity element, 

there was no error because this offense qualifies under the statute. Also, the jury could 

reasonably deduce that the shootings referred to by the expert meant assault with a deadly 

weapon given the evidence about the gang's history of violence and commission of a 

murder by shooting. Further, because the record contains no evidence that the gang 

committed simple assault rather than aggravated assault, there is no reasonable possibility 

the instructional reference to assault caused the jury to premise its finding on simple 

assault. 

 Defendant also challenges the foundational support for the gang expert's testimony 

regarding narcotics sales, asserting the expert merely stated he had investigated this crime 

but did not describe the results of his investigations. To the contrary, the expert (who 

was a member of the police department's gang unit and very familiar with the Five Times 

gang) testified he had investigated crimes committed by the gang, including narcotics 

sales, and he further opined that narcotics sales was one of the gang's primary activities. 

This testimony provided an adequate basis for the jury to conclude the gang regularly 

committed the offense of narcotic sales. 

C. Challenge to the Gang Benefit Element

With respect to the gang benefit element, defendant asserts the record does not 

support that the threat to Hollins and the kidnapping/carjacking of Doe were committed 

for the benefit of the gang. 
17 

Although there was no showing that defendant acted with another gang member 

when he committed the offenses, the record supports that his crimes were gang related. 

The jury could reasonably deduce from the evidence that Hollins and Doe recognized that 

defendant was a gang member; defendant's criminal conduct towards them caused them 

to fear for their lives because of their fear of his gang; and defendant was using the 

common gang modus operandi of instilling fear in the community and demanding 

noncooperation with the police. The evidence showed that defendant sported a very 

visible tattoo on his face that was associated with his gang, and he committed the crimes 

in an area claimed by his gang. Both Hollins and Doe specifically noticed defendant's 

tattoos: Hollins referred to his facial tattoo as the characteristic that allowed her to 

recognize him, and Doe referred to his tattoos as a source of his fear that caused him to 

continue driving. Drawing all inferences in favor of the jury's verdict, the record shows 

that defendant engaged in aggressive, threatening conduct towards Hollins and Doe: 

threatening Hollins that she would be killed if she reported the earlier carjacking to the 

police, and as he was running from the police threatening to "fuck" up Doe if he did not 

drive. Hollins acknowledged that she told the police that she did not want the case to be 

prosecuted because she was afraid of gang retaliation, and her fear was severe enough to 

cause her to be afraid to stay in her apartment. Doe told the police the area was 

defendant's "hood," and he testified he knew about the Five Times gang; he complied 

with defendant's order to keep driving because he thought defendant was a gang member 

and he was afraid; and he was afraid to testify because he was concerned about possible 

harm to his friends or family. 
18 

Considering all this evidence together, the jury could reasonably assess that the 

victims knew the area where defendant committed the crimes was claimed by his gang as 

its territory; the victims readily recognized him as a gang member by his facial tattoo; 

defendant committed the crimes in a fashion that conveyed to the victims that they had 

better obey him or they would suffer harm; and this criminal conduct was part and parcel 

of the gang's activities of intimidation designed to allow the gang to operate freely 

without police interference. The jury could also consider that the crimes involved 

specific demands that the victims stay away from or evade the police, which supported 

that defendant essentially communicated to the victims that given his status as a gang 

member he was entitled to thwart people's cooperation with the police. 

We are not persuaded by defendant's suggestion that upholding the gang 

enhancement finding in his case in effect means anytime a gang member with a visible 

gang-related tattoo commits a crime in public in the gang's claimed territory, the crime 

can automatically be deemed a gang-related offense. To the contrary, a gang 

enhancement might not be supported if a gang member with a visible gang tattoo 

commits a crime without instilling fear in the community about the gang or using the 

crime to advance the gang's activities; for example, if the gang member steals an item for 

his own personal use without being observed by or communicating with the victim. We 

also reject defendant's contention that the gang-benefit element for the incident involving 

Doe cannot be sustained because the expert did not explicitly address this count when 

providing his opinion on gang-benefit conduct. The expert provided sufficient 

information to the jury about the types of fear-instilling activities engaged in by gang 
19 

members to support the jury's conclusion that defendant acted to benefit his gang during 

the offense against Doe. 

The record supports that defendant's conduct of threatening Hollins and 

committing the kidnapping/carjacking against Doe was gang related so as to support the 

gang-benefit enhancement.6 

III. Reversal of Count 3 (Carjacking) as Lesser Included Offense of Count 4 

(Kidnapping During Carjacking)

 Defendant argues, and the Attorney General agrees, that he may not be convicted 

of both carjacking (count 3) and kidnapping during carjacking (count 4) because 

carjacking is a lesser included offense of kidnapping during carjacking. We also agree. 

 A defendant may not receive multiple convictions for a single act or course of 

conduct based on lesser included offenses. (People v. Sanders (2012) 55 Cal.4th 731, 

736.) An offense is a lesser included offense if the greater offense cannot be committed 

without also necessarily committing the lesser offense. (Id. at p. 737.) Kidnapping 

during carjacking is committed when the defendant commits a carjacking, and also 

commits a kidnapping to facilitate the carjacking. (§ 209.5, subd. (a); People v. Medina

(2007) 41 Cal.4th 685, 693.) Because kidnapping during carjacking by definition cannot 

 

6 In his appellate briefing, defendant focuses his arguments on the gang-related 

prong of the gang enhancement statute, and he does not elaborate on the specific intent 

prong. (See People v. Rios, supra, 222 Cal.App.4th at p. 564.) In any event, the 

evidence supporting that defendant's conduct was designed to benefit his gang by 

instilling fear in the community to allow gang activity to occur unimpeded by the police 

likewise supports an inference that he intended his conduct to further the criminal 

activities of gang members. 
20 

be committed without necessarily committing carjacking, carjacking is a lesser included 

offense of kidnapping during carjacking. (People v. Ortiz (2002) 101 Cal.App.4th 410, 

415.) Accordingly, the carjacking conviction must be dismissed. (Ibid.) 

IV. Challenges to Count 4 Kidnapping During Carjacking

A. Refusal To Instruct on Simple Kidnapping as Lesser Included Offense 

 Defendant argues the court erred by declining his request that the jury be 

instructed on simple kidnapping as a lesser included offense of kidnapping during a 

carjacking. 

 As stated, kidnapping during carjacking is committed when a defendant engages in 

a kidnapping to facilitate a carjacking. (People v. Medina, supra, 41 Cal.4th at p. 693.) 

Accordingly, simple kidnapping is a lesser included offense of kidnapping during 

carjacking because kidnapping during carjacking cannot be committed without 

necessarily committing kidnapping. (See People v. Ortiz (2012) 208 Cal.App.4th 1354, 

1368; People v. Eid (2010) 187 Cal.App.4th 859, 868.)7

 A trial court is required to instruct on a lesser included offense when there is 

substantial evidence raising a question as to whether all of the elements of the charged 

greater offense are present. (People v. Ortiz, supra, 208 Cal.App.4th at p. 1367.) 

Substantial evidence in this context is evidence from which reasonable jurors could 

 

7 The trial court refused to instruct on simple kidnapping based on its conclusion 

that simple kidnapping is not a lesser included offense of kidnapping during carjacking. 

The Attorney General does not argue in support of the court's conclusion on this point, 

but assumes arguendo that simple kidnapping is a lesser included offense of kidnapping 

during carjacking. 
21 

conclude that the lesser offense, but not the greater, was committed. (People v. Medina, 

supra, 41 Cal.4th at p. 700.) The rationale for requiring instruction on lesser included 

offenses is to avoid forcing the jury into an " 'unwarranted all-or-nothing choice' " which 

creates the risk the jury will convict on the charged offense even though one of the 

elements remains in doubt because " 'the defendant is plainly guilty of some

offense . . . .' " (People v. Hughes (2002) 27 Cal.4th 287, 365.) 

 When evaluating whether a lesser included offense instruction should have been 

given, we construe the evidence in the manner most favorable to the defendant and apply 

an independent standard of review. (People v. Manriquez (2005) 37 Cal.4th 547, 584-

585; People v. Ortiz, supra, 208 Cal.App.4th at p. 1367.) There is no duty to instruct on 

a lesser included offense when the evidence, even construed most favorably to the 

defendant, is such that the defendant, if guilty at all, could only be guilty of the greater 

offense; that is, when the evidence that the offense was less than that charged is 

nonexistent or minimal and insubstantial. (Ortiz, supra, at p. 1367; People v. Smith

(2013) 57 Cal.4th 232, 240; People v. Cooksey (2002) 95 Cal.App.4th 1407, 1410.) 

 On this record, there is no substantial evidence that, if defendant was guilty of 

kidnapping, he was guilty of the lesser offense of simple kidnapping rather than the 

greater offense of kidnapping during carjacking. Kidnapping is committed when the 

defendant uses force or fear to move the victim. (People v. Ortiz, supra, 208 Cal.App.4th 

at p. 1368; § 207, subd. (a); see People v. Martinez (1999) 20 Cal.4th 225, 237.) 

Kidnapping during a carjacking is committed when the defendant commits a carjacking 

(i.e., uses force or fear to take a vehicle from the victim); to facilitate the carjacking the 
22 

defendant commits a kidnapping; and the kidnapping involves movement of the victim 

beyond what is merely incidental to the carjacking, that is a substantial distance from the 

vicinity of the carjacking, and that increases the risk of harm to the victim above that 

present in the crime of carjacking. (§§ 215, 209.5; People v. Medina, supra, 41 Cal.4th at 

p. 693.) If the jury credited the evidence showing defendant did not use fear to make Doe 

drive, then defendant was guilty of neither kidnapping nor kidnapping during carjacking; 

thus, there was no need to instruct the jury on simple kidnapping based on the evidence 

that Doe drove the car voluntarily. 

 On the other hand, if the jury credited the evidence showing defendant did use fear 

to make Doe drive and concluded he committed a kidnapping, there was no reasonable 

evidentiary basis for the jury to find that he committed merely simple kidnapping rather 

than kidnapping during a carjacking. The evidence that defendant wanted to use the car 

to get away was undisputed, and there was no evidence that defendant had any reason to 

interact with Doe apart from making him drive the car. Further, it was undisputed that 

Doe drove the car about one and one-half miles away from the point where defendant 

first entered the vehicle, and under circumstances where defendant was fleeing from the 

police. These circumstances exposed Doe to a risk of injury while he continued driving, 

when he decided to park and get away from defendant, and when he was apprehended by 

the police. Assuming the jury found defendant committed a kidnapping, the evidence 

necessarily established all the elements of kidnapping during carjacking: defendant 

committed a kidnapping to effectuate a carjacking, and the movement of Doe's person 

was more than merely incidental to defendant's taking control of the vehicle, was a 
23 

substantial distance from the vicinity of the carjacking, and increased the risk of harm to 

Doe. Because the nature of the kidnapping necessarily satisfied the elements of 

kidnapping during carjacking, the court was not required to instruct on the lesser offense 

of simple kidnapping. 

 Defendant argues the jury could have found him guilty of simple kidnapping but 

not kidnapping during carjacking based on a finding that he merely wanted a ride away 

from the apartment complex (thus he used fear to commit the kidnapping of Doe's person 

for this purpose) but he had no intent to take Doe's car or exercise control over it (thus he 

did not commit the offense of carjacking). The contention is unavailing. A carjacking 

requires that the defendant intend to permanently or temporarily deprive the victim of 

possession of the vehicle. (§ 215, subd. (a); People v. Medina, supra, 41 Cal.4th at 

p. 693.) This taking of possession can occur when the defendant imposes his dominion 

or control over the car by ordering the victim to drive. (People v. Duran (2001) 88 

Cal.App.4th 1371, 1377.) Defendant's intent to obtain a ride from Doe through the use of 

fear satisfied the intent-to-take element for carjacking because it showed he intended to 

temporarily deprive Doe of control over the vehicle. The fact that defendant may not 

have intended to keep the car in his possession or continue demanding a ride after he was 

transported away from the police does not relieve him of culpability for carjacking. 

 Alternatively, even assuming the court should have instructed on simple 

kidnapping, the error was harmless because there is no reasonable probability the jury 

would have found defendant guilty of simple kidnapping instead of kidnapping during 

carjacking. (See People v. Prince (2007) 40 Cal.4th 1179, 1267 [reasonable probability 
24 

of different outcome standard generally applies to erroneous failure to instruct on lesser 

included offense].) Given the compelling evidence that the kidnapping was designed to 

facilitate the carjacking and met the nonincidental/substantial distance/increased risk of 

harm elements of the kidnapping during carjacking offense, there is no reasonable 

likelihood the jury would have selected the lesser offense over the greater offense. (See 

id. at pp. 1267-1268.) 

 The lack of prejudice is also buttressed by the fact that the trial court did instruct 

the jury on false imprisonment by violence or menace as a lesser included offense of 

kidnapping during carjacking, and the jury did not select this lesser offense.8 The jury's 

selection of the greater offense of kidnapping during carjacking rather than false 

imprisonment supports that even if it had been instructed on simple kidnapping it would 

have selected kidnapping during carjacking. 

 Defendant argues that we should apply the stricter harmless-beyond-a-reasonable 

doubt standard for federal constitutional error. (See People v. Prince, supra, 40 Cal.4th 

at p. 1267 [recognizing there may be circumstances where failure to instruct on lesser 

included offenses creates federal constitutional error].) Even under this standard, the 

record shows no reasonable possibility the jury might have selected the lesser offense of 

simple kidnapping rather than kidnapping during carjacking. 

 

8 The jury was instructed that the lesser included offense of false imprisonment by 

violence or menace is committed when the defendant "confined or detained" the victim 

by violence or menace and made the victim "stay or go somewhere against" the victim's 

will. (See CALCRIM No. 1240.) 
25 

B. Claim that Jury Was Not Instructed that the Prosecution, Not the Defense, Had 

the Burden of Proof for Defense of Mistaken Belief in Consent 

If a defendant has a mistaken belief in the victim's consent, he is not guilty of the 

offense of kidnapping during carjacking. Defendant argues the trial court erred because it 

did not instruct the jury that the prosecution had the burden to prove the absence of this 

defense. Although defendant recognizes the court instructed the jury on the belief-inconsent defense, he maintains the instruction was inadequate because instead of using the 

language concerning this defense that is contained in the standard instruction on 

kidnapping during carjacking (CALCRIM No. 1204), the court instructed the jury on the 

defense based on a mistake-of-fact instruction set forth in CALCRIM No. 3406. 

Defendant views the latter instruction as placing the burden of proof for the defense on 

the defendant instead of on the prosecution. We reject this claim because the instructions 

provided to the jury, including CALCRIM No. 3406, correctly informed the jury that it 

was the prosecution's burden to prove the absence of this defense. 

Generally, for crimes that include an element that the victim did not consent, the 

defendant may raise a defense based on the defendant's reasonable belief that the victim 

consented. (People v. Mayberry (1975) 15 Cal.3d 143, 153-155.) A mistaken belief in 

consent is premised on mistake of fact, which is deemed to negate the basic requirement 

of wrongful intent that underlies criminal conduct. (Ibid.) The defendant need only raise 

a reasonable doubt whether he or she had a reasonable belief in consent, and the ultimate 

burden of persuasion remains on the prosecution to prove the nonexistence of this belief 

beyond a reasonable doubt. (Id. at p. 157; People v. Howard (1996) 47 Cal.App.4th 
26 

1526, 1533; People v. Eid, supra, 187 Cal.App.4th at p. 878 [reasonable belief in consent 

is element of offense when there is evidence to support it]; see People v. Williams (1992) 

4 Cal.4th 354, 361.) A trial court has a sua sponte duty to instruct the jury on the 

allocation and weight of the burden of proof. (People v. Mower (2002) 28 Cal.4th 457, 

483.) 

Here, the trial court gave the jury the standard instruction on kidnapping during 

carjacking (CALCRIM No. 1204), which included the requirement that the prosecution 

proves the victim "did not consent to the movement." CALCRIM No. 1204 also contains 

language setting forth the defense of belief in consent, and the bench note for the 

instruction states this language should be included when the defense is supported by the 

evidence. This portion of CALCRIM No. 1204 states: "The defendant is not guilty of 

kidnapping if [he] reasonably and actually believed that the other person consented to the 

movement. The People have the burden of proving beyond a reasonable doubt that the 

defendant did not reasonably and actually believe that the other person consented to the 

movement. If the People have not met this burden, you must find the defendant not guilty 

of this crime." (CALCRIM No. 1204, italics added.) When instructing the jury with 

CALCRIM No. 1204, the trial court did not include this belief-in-consent language. 

Instead, the court instructed on the belief-in-consent defense using language from 

CALCRIM No. 3406. The jury was told: "The defendant is not guilty of carjacking and 

kidnapping for carjacking if he did not have the intent or mental state required to commit 

the crime because he reasonably did not know a fact or reasonably and mistakenly 

believed a fact. [¶] If the defendant's conduct would have been lawful under the facts as 
27 

he reasonably believed them to be, he did not commit carjacking. If you find that the 

defendant believed that he had consent and if you find that belief was reasonable, he did 

not have the specific intent or mental state required for carjacking or kidnapping for 

carjacking. [¶] If you have a reasonable doubt about whether the defendant had the 

specific intent or mental state required for carjacking and kidnapping, you must find him 

not guilty of those crimes." (Italics added.) 

Defendant argues the CALCRIM No. 3406 mistake-of-fact instruction provided to 

the jury was deficient because—unlike the omitted paragraph in CALCRIM No. 1204—

the instruction failed to state that his lack of belief in the victim's consent was in effect an 

element of the offense that the prosecution had the burden to prove beyond a reasonable 

doubt. To review this claim, we inquire whether there is a reasonable likelihood the jury 

misunderstood the burden of proof on the belief-in-consent issue. (See People v. Butler, 

supra, 187 Cal.App.4th at p. 1013.) We consider the instructions as a whole and assume 

the jurors are intelligent persons capable of understanding and correlating all the 

instructions. (Ibid.) 

In the general instruction on burden of proof the jury was told: "[The] 

presumption [of innocence] requires that the People prove a defendant guilty beyond a 

reasonable doubt. Whenever I tell you the People must prove something, I mean they 

must prove it beyond a reasonable doubt." (See CALCRIM No. 220.) The CALCRIM 

No. 3406 mistake-of-fact instruction informed the jurors that they must find defendant 

not guilty if they had a reasonable doubt about whether defendant had a reasonable belief 

that the victim consented. Considering the general burden-of-proof instruction along 
28 

with the mistake-of-fact instruction, the jurors would have understood that the 

prosecution's duty to prove guilt beyond a reasonable doubt extended to the issue of 

defendant's belief in consent because they were required to acquit him if they had a 

reasonable doubt as to whether he reasonably believed the victim voluntarily consented. 

The clear import of the mistake-of-fact instruction was if the prosecution did not prove 

beyond a reasonable doubt that defendant did not have a reasonable belief in consent, he 

was entitled to a not guilty verdict. (See, e.g., People v. Fiu (2005) 165 Cal.App.4th 360, 

386 [prosecution's burden to disprove defense that aider and abettor withdrew is 

adequately conveyed by instruction stating "that if the jury has a reasonable doubt 

whether or not the defendant effectively withdrew, [it] should acquit"]; see also People v. 

Smith (2005) 135 Cal.App.4th 914, 929 [general burden of proof instruction combined 

with instruction on elements of defense were sufficient; court was not required to sua 

sponte reiterate burden of proof for each particular defense].) 

To support his contention that the instructions were inadequate, defendant asserts 

the instructions told the jury about belief in consent as a defense that he must prove, 

rather than as a defense that the prosecution must disprove. There is no reasonable 

likelihood the jury interpreted the mistake-of-fact instruction to mean defendant had the 

burden to prove the defense. As set forth above, defendant need only raise a reasonable 

doubt to support the belief-in-consent defense, and once this showing is made, the 

prosecution has the burden to disprove defendant's belief in consent. The mistake-of-fact 

instruction does not apprise the jury of these nuances of the law; i.e., it does not refer to 

the belief-in-consent issue as a defense, and it says nothing about the initial burden 
29 

placed on the defendant followed by the ultimate burden of proof on the prosecution. 

Rather, the instruction affirmatively states defendant is not guilty if he did not have the 

required mental state because of a mistaken belief in the victim's consent, and a 

reasonable doubt on this issue requires a not guilty verdict. The reference to the 

reasonable doubt standard is consistent with the prosecution's burden to disprove belief in 

consent beyond a reasonable doubt. Further, during closing argument the parties made 

no statements suggesting defendant had the burden to prove he believed the victim 

consented; rather, they merely presented their differing views on whether he had the 

intent to commit the crime based on his belief in the victim's consent. 

To support his contention, defendant cites the language in the mistake-of-fact 

instruction stating "if you find" that defendant believed he had consent, and asserts this 

terminology could have misled the jury to think he had the burden to prove the defense. 

We are not persuaded. Given the explicit reference to the reasonable doubt standard, 

there is no reasonable likelihood the jury thought a higher showing was required to 

establish the defense. 

Considering the instructions as a whole, there is no reasonable likelihood the 

jurors interpreted the instructions to mean defendant, rather than the prosecution, had the 

burden of proof for the defense of mistaken belief in consent. Defendant's claim of 

instructional error on this point is unavailing. 
30 

C. Failure To Instruct that Defendant's Admissions Should Be Viewed 

With Caution

Defendant argues his kidnapping-during-carjacking conviction must be reversed 

because the court failed to instruct the jury to view his admissions with caution. (See 

CALCRIM No. 358.)9 The Attorney General does not dispute the instruction should 

have been given, but asserts the error was harmless. 

 A trial court has a sua sponte duty to instruct the jury that it must view evidence of 

a defendant's oral admissions with caution. (People v. Dickey (2005) 35 Cal.4th 884, 

905.) Because witnesses may inaccurately report a defendant's statements, the purpose of 

the cautionary instruction is to assist the jury in determining if the statement was in fact 

made. (Ibid.; People v. Bemis (1949) 33 Cal.2d 395, 399.) The failure to tell the jury to 

view the evidence of the defendant's admissions with caution does not require reversal 

unless the defendant shows it is reasonably probable the outcome would have been more 

favorable had the instruction been given. (Dickey, supra, at p. 905.) Other instructions, 

including thorough instructions on assessment of witness credibility, may adequately 

alert the jury to view the evidence of defendant's omissions with caution so as to make 

 

9 CALCRIM No. 358 states: "You have heard evidence that the defendant 

made . . . oral or written statements . . . . You must decide whether the defendant made 

any . . . statements, in whole or in part. If you decide that the defendant made 

such . . . statements, consider the statements, along with all the other evidence, in 

reaching your verdict. It is up to you to decide how much importance to give to the 

statements. [¶] Consider with caution any statement made by . . . defendant tending to 

show his . . . guilt unless the statement was written or otherwise recorded." (Italics 

added; brackets and parentheses omitted.) 
31 

the instructional omission harmless. (See People v. McKinnon (2008) 43 Cal.4th 610, 

680; People v. Wilson (2008) 43 Cal.4th 1, 19, 20.) 

 The evidence of defendant's admissions included the police officer's testimony that 

Doe reported that defendant told him to drive or he would "fuck you up" as he entered the 

car, and Doe's testimony and the officer's testimony that defendant ordered Doe to drive 

"motherfucker." This testimony was contradicted by David's testimony that defendant 

did not make any threats, and (arguably to some extent) by Doe's testimony that he did 

not hear what defendant said to David when he arrived at the car. The jury needed to 

make credibility determinations concerning the testimony and reports about defendant's 

statements, as well as the import of his statements considering all the circumstances. 

Although these matters required the jury to determine whether defendant's statements in 

the car were accurately reported, the jury was thoroughly instructed on how to assess 

credibility and the level of proof required to convict. 

 The instructions on witness credibility told the jurors that they alone must judge 

the believability of the witnesses, and set forth a lengthy, detailed list of the factors the 

jury should consider, including ability to perceive and remember, bias, consistency, prior 

statements, and reasonableness as compared to other evidence. (See CALCRIM Nos. 

226, 318.) These instructions alerted the jury to critically evaluate the evidence provided 

by the witnesses, which would include the testimony and statements supporting that 

defendant threatened Doe. The jury also knew from the instructions that defendant was 

presumed innocent, the prosecution had to prove him guilty beyond a reasonable doubt 

(see CALCRIM No. 220) and that circumstantial evidence could not be relied upon to 
32 

conclude a fact has been proven unless the prosecution has proven each fact essential to 

the conclusion beyond a reasonable doubt (see CALCRIM No. 224). From these 

instructions on the burden of proof and circumstantial evidence, the jurors would have 

understood that they should not rely on the evidence of defendant's statements unless they 

were convinced the statements were firmly established by the evidence. 

 Given the detailed instructions telling the jury to consider numerous factors when 

making its credibility determinations and to acquit unless guilt was proven beyond a 

reasonable doubt, defendant has not shown it is reasonably probable the jury would have 

reached a different result had it been explicitly told to view his admissions with 

caution.10

 

10 Defendant does not claim the cautionary instruction was required for his 

threatening statement to Hollins to support the witness intimidation count, based on case 

authority holding that the instruction is not required when "the defendant's words 

constitute the crime itself." (People v. Zichko (2004) 118 Cal.App.4th 1055, 1057, 1059-

1060.) We note the California Supreme Court has granted review in a case in which the 

court disagreed with Zichko's holding. (People v. Diaz, S205145, rev. granted Nov. 20, 

2012.) In any event, we would find the omission of the cautionary instruction to be 

harmless with respect to defendant's statement to Hollins based on the credibility and 

burden of proof instructions provided to the jury, plus the fact that the main dispute 

concerning the witness intimidation count was not whether the statement was accurately 

reported, but whether defendant was the person who made the statement. (See People v. 

Wilson, supra, 43 Cal.4th at p. 20.) 
33 

V. Claim of Cumulative Error

Defendant argues the cumulative effect of error requires reversal. Apart from the 

errors conceded by the Attorney General and which require reversal (i.e., the gang 

participation and carjacking convictions), any additional errors were not so egregious as 

to require reversal even viewed cumulatively. To the extent there were or may have been 

errors, on this record there is no reasonable possibility that the jury relied on improper 

matters for the primary activity element, that it would have selected simple kidnapping 

rather than kidnapping during carjacking, or that it did not understand it should critically 

evaluate the evidence of defendant's admissions. 

DISPOSITION 

The convictions for count 3 carjacking (§ 215, subd. (a)) and count 5 gang 

participation (§ 186.22, subd. (a)) are dismissed. In all other respects, the judgment is 

affirmed. The superior court is directed to prepare an amended abstract of judgment 

removing the count 3 and count 5 convictions, and to forward a copy of the amended 

abstract of judgment to the Department of Corrections and Rehabilitation. 

HALLER, Acting P. J. 

WE CONCUR: 

MCDONALD, J. 

O'ROURKE, J.