Filed 11/6/14 P. v. Louie CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. 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 Superi or Court of San Be rnardino County, R. Glenn Yabuno, Judge. Affirmed in pa rt; reversed in part with directions.
Law Office of Allison H. Ting and A llison H. Ting, under appointment by the Court of Appeal, for De fendant and Appellant. Kamala D. Harris, Attorney General, Da ne 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 c onvicting him of witness intimidation, kidnapping during carjacking, and other offens es, with gang enhancements. Challenging the gang enhancements, he a sserts there was instructiona l error and/or insufficient evidence for two of the elemen ts required for the enhancem ent (the primary activity element and the gang benefit element). He also raises several challenges to his kidnapping during carjacking conviction, incl uding the court (1) erred in denying his request for an instruction on the lesser offense of simple ki dnapping; (2) did not instruct the jury that the burden of pr oof 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 re ject these contentions of reversible error. The Attorney General ackno wledges that two of defend ant's convictions must be reversed: (1) a gang participation count beca use defendant did not e ngage in the criminal conduct with other gang memb ers, and (2) a carjacking count because it is a lesser included offense of kidnapping during carjacking. We agre e, and accordingly reverse and dismiss the gang participa tion and carjacking convictions. In all other respects, the judgment is affirmed.
FACTUAL AND PROCEDUR AL BACKGROUND The charged offenses arose from incide nts that occurred on March 24 and 25, 2012. In the first incident, defendant threat ened 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 fro m the police, committed a kidnapping and carjacking against a second vict im (identified at trial as John Doe). Defendant is a3 member of the Five Times Hometown Crip Gang ("Five Times"), and he has several gang-related tattoos, including a tattoo of a fi ve-point star on his cheek. His offenses were committed in a neighbor hood claimed by this gang. Witness Intimidation of Hollins The March 24 witness intimidation occurre d after a man (apparently defendant's cousin) approached Hollins outside a liquor st ore and asked her for a ride to a location about two blocks away. Hollin s did not know the man, but sh e had seen him in the area before. Although she felt a little nervous, sh e agreed to provide the ride because the distance was not very far. When Hollins drove in to 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 h ours hoping her car would be returned; and eventually flagged down a police car. Wh en defendant (who was getting into the passenger seat of a van) saw the police car a pproaching, he told Ho llins "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. Becaus e 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 te stified that she appeared "pretty scared"; she was crying "off and on"; and she told the poli ce she was "scared to death." When contacted by the police, Ho llins identified defendan t as the person who threatened her, but at trial she recanted this identification. Police witnesses testified that when she was interviewed at th e scene and when a detective in terviewed her the next day,4 she stated the man who made the threat abou t 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 th e 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 pe rsonally 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 perp etrator of the threat, the detective testified that at Ho llins's request he interviewed he r at a friend's apartment; she told him she was staying with a friend becaus e she feared the people involved in the case would find her and harm or th reaten her; and when she lo oked at the photo lineup she appeared "very scared" and said "he's in th ere" but she was "afraid to get anybody in trouble." An investigator for the district a ttorney's office testif ied Hollins told him she was afraid to come to court; she knew defendan t and did not want to get him in trouble; and she wanted to give him a second chance. Although Hollin s claimed at trial that she did not know about a gang calle d Five Times, she acknowled ged she told the police she did not want the case prosecuted beca use she was afraid of gang retaliation. 2

1 The detective also show ed Hollins a photo lineup of possible suspects for the taking of her car, but she was unab le to make an identification.
2 Hollins also acknowledged th at she had been approached by defendant's mother and his girlfriend about defenda nt'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 occu rred while Doe, accompanied by his nephew (David), was driving out of an apartment complex lo cated near the liquor store where Hollins was threatened. Police witnesses testified th ey were at the apartment complex looking for defendant be cause he had been identifie d by Hollins as a suspect in the incident the previous day. The police spotted defendant sta nding under a carport, along with several other males including anot her member of the Five Times gang. As a marked police vehicle approach ed the group of males, defendant and the other gang member took off running. Duri ng an ensuing police pursuit, officers saw Doe's vehicle speeding away from the area. Doe testified that as he was leaving th e complex, defendant was running across the parking lot and Doe slammed on the brakes to avoid hitting de fendant. When defendant noticed David sitting in the passenger seat of the car, defendant ra n up to the passenger door, spoke to David, and entered the car. Do e testified the radio was playing in the car and he did not hear what defe ndant said when he spoke to David. According to a police officer who interviewed Doe after the incide nt, Doe reported that defendant "jumped" into the car and said "get th e fuck out of here or I will fuck you up," and when Doe refused to drive defendant said "just dr ive, motherfucker, get out of here." Doe testified he had neve r seen defendant before; he did not give defendant permission to enter the car; a nd he "[a]t first was kind of puzzled" and did not "know really what was going on." Because it appeared David knew defendan t, Doe took his foot off the brake and, without pressing the gas pe dal, allowed the car to roll slowly through6 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 polic e and he repeatedly stopped the car and told defendant to get out of the car. Defenda nt, 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 "g o, go, go." Doe did not want to be involved with someone who was running from the police a nd did not want to continue driving, but he felt he was being forced to do so. He was afraid because defendant wa s "frantic, a little excited, sweating and cove red in tattoos"; he thought defe ndant 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 de fendant 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 sta tion, got out of the vehicle w ith 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 ve hicle. When the unmarked police vehicle arrived at the gas station, the officers saw David and defendant leav e the car and enter the gas station store, while Doe walked away in another direction. The officers detained the three males. When interviewe d at the scene, Doe was "tearing up," "very emotional," and "very upset," and he told the police he did not stop driving be cause he was afraid for his

3 Doe testified that at the time of the in cident he was on summa ry 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 Ne lson Carrington) testified that the Five Times gang started in the 1980's (originall y 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 199 0's and early 2000's, th e gang had become "so violent" that the city imposed a gang injuncti on on it. The injunction, which can restrict even "loitering in the neighbor hood with another gang membe r," 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 activitie s. He has also investigated the crimes of intimidation, threats, and vehicle theft co mmitted by the gang's members. Detective Carrington described several spec ific convictions incurred by Five Times gang members, including convictions in May 20 08 for carrying a concealed fi rearm; in October 2010 for possession for sale of a controlled substance (methamphetamine); in August 2011 for criminal threats; and in Dece mber 2011 for murder with pe rsonal discharge of a firearm. The carrying of a concealed firearm convi ction 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 fleei ng from the police the gang member dropped8 a firearm which discharged wh en it hit the ground. The ga ng member was charged with carrying a concealed firearm and resisting ar rest, and he pled guilty to the concealed firearm charge. The possession for sale co nviction 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 w ith gang benefit enhancements, and he pled guilty to possession of methamphetamine fo r sale. The criminal threats conviction involved an August 2011 domestic dispute duri ng which the gang me mber threatened to kill his ex-girlfriend's boyfriend, and when the police arrived the gang member yelled, "fuck you, police, I'm Fifth St reet Crip." The gang memb er was charged with making criminal threats and resisting an officer w ith gang benefit enhanc ements, and he pled guilty to the criminal threats charge. Th e 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 pa rty. After a jury tr ial, the gang member was convicted of first degree mu rder 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 memb ers 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 br azenly commit crimes in this neighborhood without the people calling the pol ice. Gang members can achieve this respect and fear by marking their territory with gang graffiti, committing crimes openly in public, and9 threatening witnesses w ith physical harm or death if they contact the police. They also instill fear by displaying their gang tattoos in a "blatant a nd 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 me mber displaying gang tattoos commits a crime by himself, this can benefit the entir e gang because the people in the community know the crime was committed by a gang memb er 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 ab out 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 threaten ing to kill her is a gang member because of the five-point st ar tattoo, and this "will intimidate almost anybody." Defense and Rebuttal Relevant to the carjacking/kidnapping allegations involving Do e, David testified on behalf of the defense that when he saw de fendant 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 [D avid] 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 goin g to go[?]" Without making10 any threats, defendant told Doe that he shou ld "[j]ust drive him. Get him out of the apartments." Doe continued driving, and as they were leaving th e 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 wa s 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 mo therfucker, get the fuck out of here" when he got in the car. David told the officer th at he feared for his life because this was defendant's "hood" and "he had to live there," which the officer unders tood 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 involv ing Hollins, defendant wa s convicted of witness intimidation by force or thre at (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)). Th e jury found a gang enhancement to be true for each of these co unts. (§ 186.22, subd. (b)(1)(C).) Defendant

4 Subsequent unspecified statutory references are to the Penal Code. 5 Defendant was also charged with carjac king 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 year s 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 th e count 5 gang participation conviction (§ 186.22, subd. (a)), which was based on the in cident involving Doe, must be reversed because there is no evidence de fendant 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 provide s for increased punishment when the defendant committed a crime to benefit a crimin al street gang. (§ 186.22, subd. (b).) Defendant raises sufficiency of the evidence and/or instru ctional challenges related to two of the elements required for the gang enha ncement: (1) the primary activity element, and (2) the gang benefit (or gang-related) element.12 A. Legal Principles The primary activity element concerns th e 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 spec ified crimes. (§ 18 6.22, subd. (f).) The commission of the statutorily enumerated crim es must be one of the group's principal occupations; the occasional commission of th e 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 commi ssion of statutorily specified offenses. ( Id. at pp. 1222-1223.) Charged offenses in the cu rrent 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 o f, at the direction of, or in association with any criminal street gang, with the specific in tent 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 th at the crime was gang related. ( People v. Albillar (2010) 51 Cal.4th 47, 60.) The gang-related re quirement may be shown by evidence indicating the offense could benefit the ga ng by enhancing the gang's reputation for violence and increasing the gang's st ronghold on the neighborhood. ( Id. at p. 63; see People v. Gardeley (1996) 14 Cal.4th 605, 619.) Ho wever, "[n]ot every crime committed13 by gang members is related to a gang"; for example, an offense committed by gang members as part of " 'a frolic and detour unre lated 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 involv ed; however, the record must show that the gang member's criminal conduct is connec ted to the activities of the gang. (See People v. Rodriguez, supra , 55 Cal.4th at pp. 1138-1139 [enha ncement 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 ex istence of every fact the ju ry 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 inquir e whether there is a reasonabl e 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 requi red 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 ac tivity element include (among others) sale or possession for sale of controlled substances , unlawful homicide, a ssault with a deadly weapon or by means of force likely to produce great bodily injury, criminal threats and witness intimidation. (§ 186.2 2, subds. (e)(1), (3), (4), (8), ( 24), (f).) The jury here was instructed that the gang enha ncement allegation required a sh owing 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 othe rs) 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 st atutorily delineated cr imes that establish this element. The contention is unavailing. The jury was presented with evidence that the gang's primary activities in cluded narcotic sales and shoo tings (i.e., assault with a deadly weapon), and that Five Times gang me mbers had been convicted of first degree murder, criminal threats, and (based on th e current case) witness intimidation. This evidence supports that the gang regularly commits the qualifying crimes of controlled substance sales, murder, assault with a de adly weapon, criminal threats and witness intimidation. To support his claim that the group's commission of qualifying offenses is only sporadic and occasional, defe ndant points out that the evid ence showed the commission of only one murder, one crim inal threat, and one witne ss intimidation, and the gang15 expert did not opine that thes e particular offenses were among the primary activities of the gang. These factors do not defeat the ju ry'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 th e jury from finding that the gang member's convictions of these offenses reflected th e types of activities the gang was primarily involved in. Second, the jury was not requir ed to find that the gang repeatedly engaged
in one particular qualifying offense; rather, a findi ng that the gang consistently and repeatedly committed qualifying o ffenses could properly be based on the gang members' commission of three different statutorily spec ified offenses on three separate occasions, as well as the gang expert's opinion regard ing 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 inst ances the offenses referred to in the prosecution' s evidentiary presentation, th e 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 a ssault; and the statute refers to controlled substance sales or possession for sale and assa ult with a dead ly weapon. None of these factors create reversible error. Based on the commonly unders tood meaning of the words, we have no doubt the ju ry understood that narcotics sales, drug sales, and sale of controlled substances all refer to the same type of criminal conduct. If the jury16 considered the possession-for-sale conviction to support the primar y activity element, there was no error because this offense qualifie s under the statute. Also, the jury could reasonably deduce that the shootings referred to by the expert meant a ssault with a deadly weapon given the evidence abou t the gang's history of vi olence 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 foundationa l support for the gang expert's testimony regarding narcotics sales, asserting the expert merely stated he had i nvestigated 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 sa les was one of the gang's primary activities. This testimony provided an adequate basis fo r the jury to conclude the gang regularly committed the offense of narcotic sales.
C. Challenge to the Ga ng Benefit Element With respect to the gang benefit element, defendant asserts the record does not support that the threat to Hollins and the kidnapping/carjac king of Doe were committed for the benefit of the gang.17 Although there was no showing that defe ndant acted with another gang member when he committed the offenses , the record supports that his crimes were gang related. The jury could reasonably de duce from the evidence that Ho llins and Doe recognized that defendant was a gang member; defendant's cr iminal 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 eviden ce 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 Hollin s 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 verd ict, the record shows that defendant engaged in aggressive, threatening cond uct 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 re taliation, and her fear was severe enough to cause her to be afraid to stay in her apartment. Do e told the police the area was defendant's "hood," and he te stified he knew about the Five Times gang; he complied with defendant's order to k eep driving because he though t defendant was a gang member and he was afraid; and he was afraid to te stify 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 de fendant 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 su ffer harm; and this criminal conduct was part and parcel of the gang's activities of in timidation 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 comm unicated to the victims that given his status as a gang member he was entitled to thwart pe ople's cooperation with the police. We are not persuaded by defendant's suggestion th at upholding the gang enhancement finding in his case in effect me ans 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 th e community about the gang or using the crime to advance the gang's activ ities; for example, if the ga ng member steals an item for his own personal use without being observed by or communicating with the victim. We also reject defendant's conten tion that the gang-ben efit 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 cond uct. The expert provided sufficient information to the ju ry about the types of fear-instilli ng activities engaged in by gang19 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 Do e 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 Genera l agrees, that he may not be convicted of both carjacking (count 3) and kidnapp ing during carjacking (count 4) because carjacking is a lesser included offense of ki dnapping during carjacking. We also agree. A defendant may not receive multiple co nvictions 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 comm itting 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 kidn apping 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 conduc t was designed to benefit his gang by instilling fear in the community to allow gang activity to occur un impeded by the police likewise supports an inference that he inte nded his conduct to further the criminal activities of gang members.20 be committed without necessar ily committing carjacking, carj acking 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 Ki dnapping During Carjacking
A. Refusal To Instruct on Simple Kidnapping as Lesser Included Offense Defendant argues the cour t erred by declining his re quest that the jury be instructed on simple kidnapping as a less er included offense of kidnapping during a carjacking. As stated, kidnappi ng during carjacki ng 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 less er included offense of kidnapping during carjacking because kidnapping during car jacking 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 , 2 08 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 include d offense of kidnapping during carjacking. The Attorney General does not ar gue 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 th e jury into an " 'u nwarranted all-or-nothing choice' " which creates the risk the jury w ill convict on the charged offens e 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 include d offense instructi on should have been given, we construe the evidence in the manne r 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.) Th ere is no duty to instruct on a lesser included offense when the evidence, even constr ued most favorably to the defendant, is such that the de fendant, if guilty at all, coul d only be guilty of the greater offense; that is, when the evidence that the offense wa s 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 offe nse of simple kidnapping rather than the greater offense of kidnappi ng during carjacking. Kidnap ping 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 fro m the victim); to facilitate the carjacking the22 defendant commits a kidnapping; and the ki dnapping involves movement of the victim beyond what is merely incidental to the carj acking, that is a subs tantial 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 gu ilty of neither kidna pping nor kidnapping during carjacking; thus, there was no need to inst ruct the jury on simple ki dnapping based on the evidence that Doe drove the car voluntarily. On the other hand, if the jury cred ited the evidence showing defendant did use fear to make Doe drive and concluded he comm itted a kidnapping, there was no reasonable evidentiary basis for the jury to find that he committed me rely simple kidnapping rather than kidnapping during a carjack ing. The evidence that defe ndant 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 driv e 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 circum stances where defendan t 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 defend ant committed a kidnap ping, the evidence necessarily established all the elements of kidnapping during carjacking: defendant committed a kidnapping to eff ectuate a carjacking, and th e movement of Doe's person was more than merely incidental to defend ant's taking control of the vehicle, was a23 substantial distance from the vici nity of the carjacking, and increased the risk of harm to Doe. Because the nature of the kidnappi ng necessarily satisfied the elements of kidnapping during carjacking, the court was no t 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 fi nding that he merely wanted a ride away from the apartment complex (thu s 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 defendan t 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 oc cur when the defendant imposes his dominion or control over the car by orderi ng the victim to drive. ( People v. Duran (2001) 88 Cal.App.4th 1371, 1377.) Defend ant's intent to obtain a ride from Doe through the use of fear satisfied the intent-to-take element fo r carjacking because it s howed he intended to temporarily deprive Doe of control over the ve hicle. The fact that defendant may not have intended to keep the car in his possessi on or continue demanding a ride after he was transported away from the police does not re lieve him of culpability for carjacking. Alternatively, even assuming the cour t 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 kidnappi ng instead of kidnapping during carjacking. (See People v. Prince (2007) 40 Cal.4th 1179, 1267 [reasonable probability24 of different outcome standard generally applie s to erroneous failure to instruct on lesser included offense].) Given the compelling evid ence that the kidnapping was designed to facilitate the carjacking and met the nonincid ental/substantial distance/increased risk of harm elements of the kidnapping during carj acking 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 buttr essed 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 kidn apping 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 ther e may be circumstances where failure to instruct on lesser included offenses creates fede ral constitutional error].) Even under this standard, the record shows no reasonable possi bility the jury might have se lected the lesser offense of simple kidnapping rather than kidnapping during carjacking.

8 The jury was instructed that the lesser included offe nse 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 "sta y or go somewhere ag ainst" 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 vi ctim's consent, he is not guilty of the offense of kidnapping during carj acking. Defendant argues the trial court erred because it did not instruct th e jury that the prosecution had the burden to prov e the absence of this defense. Although defendant recognizes th e 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 instru ction set forth in CALCRIM No. 3406. Defendant views the latter instruction as pl acing the burden of pr oof for the defense on the defendant instead of on the prosecution. We reje ct this claim because the instructions provided to the jury, includi ng 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 in clude an element that the vi ctim did not consent, the defendant may raise a defense based on the de fendant's reasonable belief that the victim consented. ( People v. Mayberry (1975) 15 Cal.3d 143, 153-1 55.) 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 no nexistence of this belief beyond a reasonable doubt. ( Id. at p. 157; People v. Howard (1996) 47 Cal.App.4th26 1526, 1533; People v. Eid, supra , 187 Cal.App.4th at p. 878 [re asonable 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 su a sponte duty to inst ruct 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 st andard 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 belie f in consent, and the bench note for the instruction states this langua ge should be included when the defense is supported by the evidence. This portion of CA LCRIM No. 1204 states: "The defendant is not guilty of kidnapping if [he] reasonably and actually belie ved 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 be lieve 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 inst ructing 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 de fense using language from CALCRIM No. 3406. The jury wa s told: "The defendant is not guilty of carjacking and kidnapping for carjacking if he did not have th e intent or mental state required to commit the crime because he reasona bly did not know a fact or reasonably and mistakenly believed a fact. [¶] If the defendant's conduct would have been lawful under the facts as27 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 wa s reasonable, he did not have the specific intent or mental stat e required for carjacki ng or kidnapping for carjacking . [¶] If you have a reasonable doubt ab out whether the defendant had the specific intent or mental state required for carjacking and kidnappi ng, you must find him not guilty of those crimes ." (Italics added.) Defendant argues the CALCRIM No. 3406 mist ake-of-fact instruction provided to the jury was deficient beca use—unlike the omitted paragr aph in CALCRIM No. 1204— the instruction failed to state that his lack of belief in the victim's c onsent was in effect an element of the offense that the pr osecution 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 pe rsons capable of understa nding 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 instru ction informed the jurors th at they must find defendant not guilty if they had a reasonable doubt about whether defendant had a reasonable belief that the victim consented. Considering th e general burden-of-proof instruction along28 with the mistake-of-fact in struction, the jurors woul d have understood that the prosecution's duty to prove guilt beyond a r easonable 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 whethe r he reasonably believed the victim voluntarily consented

. The clear import of the mistake-of-fact instru ction 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 defe nse 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 w ithdrew, [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 we re sufficient; court was not required to sua sponte reiterate burden of proof for each particular defense].) To support his contention that the instruc tions were inadequate, defendant asserts the instructions told the ju ry about belief in consent as a defense that he must prove , rather than as a defense th at the prosecution must disprove. There is no reasonable likelihood the jury interpreted the mistake-of-fact instructi on to mean defendant had the burden to prove the defense. As set forth ab ove, defendant need on ly raise a reasonable doubt to support the belief-in-consent defens e, and once this showing is made, the prosecution has the burden to di sprove defendant's belief in c onsent. 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 burden29 placed on the defendant follo wed by the ultimate burden of proof on the prosecution. Rather, the instruction affirma tively states defendant is not guilty if he did not have the required mental state because of a mistak en belief in the vic tim's consent, and a reasonable doubt on this issu e 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 do ubt. 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 hi s belief in the victim's consent. To support his contention, defendant cite s the language in the mistake-of-fact instruction stating "if you find " that defendant believed he ha d consent, and asserts this terminology could have misled the jury to thi nk 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 instruc tions 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-ca rjacking conviction must be reversed because the court failed to inst ruct the jury to view his ad missions with caution. (See CALCRIM No. 358.) 9 The Attorney General does no t dispute the instruction should have been given, but asse rts the error was harmless. A trial court has a sua sponte duty to instruct the jury th at 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.) Th e failure to tell the jury to view the evidence of the defe ndant's admissions with caution does not require reversal unless the defendant shows it is reasonably pr obable the outcome would have been more favorable had the instru ction been given. ( Dickey, supra , at p. 905.) Other instructions, including thorough instructi ons on assessment of witnes s credibility, may adequately alert the jury to view the evid ence 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 statemen ts, along with all th e 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 statemen t 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 in cluded the police officer's testimony that Doe reported that defendant told him to drive or he would "f uck you up" as he entered the car, and Doe's testimony and the officer's tes timony that defendant ordered Doe to drive "motherfucker." This testimony was contradi cted by David's testimony that defendant did not make any threats, a nd (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 ju ry needed to make credibility determinations concerning the testimony and reports about defendant's statements, as well as the impor t of his statements considering all the circumstances. Although these matters required the jury to determine whethe r defendant's statements in the car were accurately report ed, the jury was thoroughly in structed on how to assess credibility and the level of proof required to convict. The instructions on witne ss credibility told th e jurors that they alone must judge the believability of the witnesse s, and set forth a lengthy, detailed list of the factors the jury should consider, includin g ability to perceive and rememb er, 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 Do e. The jury also kn ew from the instructions that defendant was presumed innocent, the pros ecution had to prove him guilty beyond a reasonable doubt (see CALCRIM No. 220) and that circumstan tial evidence could not be relied upon to32 conclude a fact has been proven unless the pr osecution has proven each fact essential to the conclusion beyond a reas onable doubt (see CALCRIM No. 224). From these instructions on the burden of proof and circ umstantial evidence, th e jurors would have understood that they should not rely on the evidence of defendant's statements unless they were convinced the statem ents were firmly estab lished by the evidence. Given the detailed instructions telling the jury to consider numerous factors when making its credibility determinations and to acquit unless guilt wa s proven beyond a reasonable doubt, defendant has not shown it is reasonably probable the jury would have reached a different result had it been exp licitly told to view his admissions with
caution. 10

10 Defendant does not claim the cautiona ry instruction was required for his threatening statement to Hollin s to support the witness intim idation count, based on case authority holding that the in struction is not required wh en "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 ha s 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 om ission of the cautionary instruction to be harmless with respect to defendant's statem ent 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 intimid ation count was not whether th e 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 Attorn ey General and which require reversal (i.e., the gang participation and carjacking co nvictions), 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 no t 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 am ended abstract of judgment removing the count 3 and count 5 convictions , and to forward a copy of the amended abstract of judgment to the Departme nt of Corrections and Rehabilitation.
HALLER, Acting P. J.
WE CONCUR:

M C DONALD, J.

O'ROURKE, J.