PEOPLE v. CAUDILLO

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Court of Appeal, Second District, Division 5, California.

The PEOPLE of the State of California, Plaintiff and Respondent, v. Daniel CAUDILLO, Defendant and Appellant.

Cr. 28084.

Decided: November 19, 1976

F. Elaine Easley, Los Angeles, under appointment by the Court of Appeal, for defendant and appellant. Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Crim. Div., S. Clark Moore, Asst. Atty. Gen., William R. Pounders and Michael Nash, Deputy Attys. Gen., for plaintiff and respondent.

In a jury trial appellant was convicted of kidnaping (Pen.Code, § 207), forcible rape (Pen.Code, § 261, subd. 2), sodomy (Pen.Code, § 286), oral copulation (Pen.Code, § 288a), robbery (Pen.Code, § 211), and burglary with infliction of great bodily injury (Pen.Code, §§ 459, 461). He appeals from the judgment sentencing him to state prison.

The victim, Maria G., lived on the second floor of a large apartment complex. At about 7:55 a. m. on May 2, 1975, she took the elevator from her apartment down to the subterranean garage, intending to drive her car to work. When she got in her car, she discovered that one of the tires was flat, having been slashed. Maria decided to go back to her apartment to call for help, so she got back into the elevator and pushed ‘2.’

When the elevator got to the second floor and the door opened, appellant was standing outside. Maria immediately recognized him, because she had seen him at the apartment complex on several prior occasions.1 Appellant jumped into the elevator, got behind Maria, put a knife to her throat with one hand and covered her mouth with the other, then pushed her toward the wall of the elevator. He led her out of the elevator, to a storage room right beside the elevator, and partially closed the door. At the sound of shuffling feet, appellant told Maria to be quiet, pressing the knife so close to her throat that he cut her throat. Maria tried to pull the knife away from her throat with her hand, and cut two fingers. Appellant then held the knife at the back of her neck, and made a cut there. Appellant asked if she had seen him, and she replied no, because she was afraid he would hurt her if she admitted she could identify him. They heard the sound of shuffling feet again, and the elevator in motion, and appellant told her to be very quiet.

Appellant asked Maria if there was anyone in her apartment and she told him no. He said, ‘You better not be lying to me. You better not try any funny business.’ When the shuffling feet quieted down, appellant held the knife to Maria's back and forced her to raise her dress. He fondled her posterior. He said as soon as everyone had left for work he would take her to her apartment. Maria asked why, and appellant said, ‘[T]o help me hide.’ He also said he had a friend who would be coming to the apartment. They were in the storage room for about 20 minutes. During this time, appellant asked Maria how much money she had, and she told him about $30.

Appellant held the knife to Maria's back and told her that they were going to go out of the storage room and into her apartment very quietly. He led her out of the storage room and down the corridor to her apartment and ordered her to open the door. When she opened the door, appellant pushed her inside, told her not to turn around, and blindfolded her. Appellant told Maria to take off her clothes, and she heard him take his pants down.

We need not recite the explicit details of the forcible rape and sodomy which followed or of the numerous acts of oral copulation appellant forced Maria to perform. During one of these acts appellant asked if Maria had a boyfriend and said, ‘You better not lie to me. I know everything about you. I know what time you leave for work and I know what time you get home. I have seen you from afar and I have admired you for a long time.’ During another, appellant said, ‘I'm sorry it had to be this way. . . . [¶] I know you would have never talked to me. And even if you had talked to me I know you'd never have gone out with me on a date if I asked you for one.’

Appellant kept asking if Maria had seen him and she kept telling him no. Appellant kept saying, ‘You better not be lying or else I am going to kill you.’

After completing the sexual acts, appellant took about $60 from Maria's wallet, threw her wallet and purse at her and said, ‘I'll owe it to you.’ He told Maria to remain lying on the bed for 15 minutes and that, ‘If you report this to anybody, to the police or anyone, I am going to kill you.’

Appellant then left the room. Maria waited awhile to make sure he was gone, then contacted her boyfriend and her roommate, and was interviewed by the police and an examining physician. A few days later, she identified appellant's picture in three different groups of mug shots.2 Appellant surrendered to the police on May 8, but shaved his mustache first.

Appellant presented an alibi defense.

DISCUSSION

Appellant raises three arguments concerning the sufficiency of the evidence to support the judgment, none of which has merit. On appeal we must view the evidence in the light most favorable to the judgment and presume in support of the judgment the existence of every fact the trier of hact could reasonably deduce from the evidence. (People v. Reilly, 3 Cal.3d 421, 424, 90 Cal.Rptr. 417, 475 P.2d 649; People v. Redmond, 71 Cal.2d 745, 755, 79 Cal.Rptr. 529, 457 P.2d 321.)

First appellant argues the sufficiency of the victim's testimony, claiming that her testimony was not corroborated and that it had inconsistencies. The victim's testimony alone is sufficient to sustain the conviction. There is no requirement of corroboration. (Ballard v. Superior Court, 64 Cal.2d 159, 171–172, 49 Cal.Rptr. 302, 410 P.2d 838; People v. Stevenson, 275 Cal.App.2d 645, 650, 80 Cal.Rptr. 392; People v. Scott, 270 Cal.App.2d 773, 776, 76 Cal.Rptr. 117.) The claimed inconsistencies are trivial and have no bearing on the major thrust of the testimony.3 In any event, the strength or weakness of identification evidence is a matter for the trier of fact. (People v. Livingston, 252 Cal.App.2d 630, 636, 60 Cal.Rptr. 728.)

Next appellant contends that the evidence is insufficient to show that the burglary was committed with infliction of great bodily injury within the meaning of Penal Code section 461.4 Relying upon the fact that a similar great bodily injury provision is contained in Penal Code section 264 dealing with rape, appellant argues that the rape itself cannot constitute great bodily injury under section 461. This argument is without merit and was rejected in People v. Cardenas, 48 Cal.App.3d 203, 206–207, 121 Cal.Rptr. 426, where the court held that forcible rape constitutes great bodily injury within the meaning of section 461.5

Finally, appellant contends that the movement of the victim was insufficient to constitute kidnaping under Penal Code section 207. We note first that the principles of People v. Daniels, 71 Cal.2d 1119, 1139, 80 Cal.Rptr. 897, 459 P.2d 225 (prohibiting conviction under the aggravated kidnaping statute, Penal Code section 209, in cases where the movements of the victim are merely incidental to the commission of another crime and do not substantially increase the risk of harm), are not applicable to the simple kidnaping statute, Penal Code section 207. (People v. Stanworth, 11 Cal.3d 588, 598–601, 114 Cal.Rptr. 250, 522 P.2d 1058; People v. Brown, 11 Cal.3d 784, 787, 114 Cal.Rptr. 426, 523 P.2d 226; People v. Mayberry, 15 Cal.3d 143, 161, 125 Cal.Rptr. 745, 542 P.2d 1337.) Rather, the issue is whether the victim was moved to ‘another part of the same county’ within the meaning of section 207.

There is no exact definition of the minimum distance which can constitute movement ‘into another part of the same county.’ Each case must be determined on its own facts. (People v. Stanworth, supra, 11 Cal.3d at pages 600–601, 114 Cal.Rptr. at page 259, 522 P.2d at page 1067.) ‘Of course in the application and enforcement of the section, it is our duty to avoid ‘absurd consequence[s]’ and achieve a ‘sensible construction.’ [Citation.] ‘[T]he statute is to be given effect in its commonsense meaning.’ [Citation.] In performing that duty, it is imperative to refer to the language of section 207 itself. . . . The statutory language implies that the determining factor in the crime of kidnaping is the actual distance of the victim's movements; and further, that the minimum movements necessary for the commission of the crime are present where the victim is forcibly taken ‘into another part of the same county.’ (Italics added.) Finally, because the victim's movements must be more than slight [citation] or ‘trivial’ [citation], they must be substantial in character to constitute kidnaping under section 207.' (Id. at p. 601, 114 Cal.Rptr. at p. 259, 522 P.2d at p. 1067.)

In Stanworth the movement of the victims a distance of approximately one-quarter mile was held to be substantial, and the convictions for kidnaping were affirmed. (Id. at pp. 602–603, 114 Cal.Rptr. 250, 522 P.2d 1058.) At the other extreme, in People v. Thornton, 11 Cal.3d 738, 767, 114 Cal.Rptr. 467, 523 P.2d 267, there was only slight movement within a single room of a laundromat, and the movement was held insufficient to constitute kidnaping. In People v. Brown, supra, 11 Cal.3d 784, 114 Cal.Rptr. 426, 523 P.2d 226, the defendant moved the victim around in her house and then dragged her out the back door, approximately 40 to 75 feet, until interrupted by a neighbor. The court stated that the record did not disclose the distance of the movements within the house and did not show the defendant's purpose in taking the victim outside the house. Under such circumstances, the court attached little significance to the movement beyond the ‘arbitrary boundary’ of the back door, and held the movement insufficient to constitute kidnaping. (Id. at pp. 788–789 & fn. 6, 114 Cal.Rptr. 426, 523 P.2d 226.)

In People v. Stender, 47 Cal.App.3d 413, 121 Cal.Rptr. 334, the victim was moved outside her house, where her mother was present, past three other houses, and underneath a pier, a total distance of about 200 feet, where the defendant then attempted oral copulation. The court reviewed Stanworth and Brown, and held that while movement beyond arbitrary boundaries is not a determinative factor, it is a factor to be considered, and that such movement took on added significance when it accomplished the purpose of removing the victim from the ready help of her mother. The court concluded that under all the circumstances the distance was sufficient and the boundaries traversed and locations involved suggested more than trivial movement. The kidnaping conviction was affirmed. (Id. at pp. 421–423, 121 Cal.Rptr. 334.)

In the instant cast there were two separate asportations. The first was from the elevator to the storage room. Appellant held Maria there at knife point for 20 minutes, a significant length of time, and told her to be quiet. All of this was for the express purpose of avoiding detection or help from the numerous other persons who were heard in the hallway or using the elevator or stairs.

After this 20-minute period, appellant moved Maria from the storage room to Maria's apartment. The record does not indicate the exact distance involved; the apartment was ‘down the corridor’ from the elevator and storage room. According to appellant's statement to Maria in the storage room, the purpose of this movement was ‘to help me hide.’ Once inside the apartment, appellant then committed numerous sex acts without interruption. Thus, like Stender and unlike Brown, the boundaries involved are significant in terms of the purpose of the movements. Appellant's movements of Maria were substantial in character considering their duration and the closeness and intensity of her confinement. Under all the circumstances, the distance and movements were not ‘slight, insubstantial, or trivial.’ The evidence is sufficient to sustain the kidnaping conviction.

The judgment is affirmed.

I concur with the majority opinion in all respects except as it relates to Count I, a charge of section 207 of the Penal Code, kidnaping. As to that count, I would reverse on the basis of People v. Stanworth, 11 Cal.3d 588, 114 Cal.Rptr. 250, 522 P.2d 1058, and People v. Brown, 11 Cal.3d 784, 114 Cal.Rptr. 426, 523 P.2d 226. No movement of the victim took place other than on the second floor of the apartment building, i. e., from the elevator, to a storage room next to the elevator then to the victim's apartment down the hall, all on the second floor. No distances have been provided in the record but it is patent that such movements were all incidental to the crime of rape. ‘Thus where only simple kidnaping is involved, it is clear that the victim's movements cannot be evaluated in the light of a standard which makes reference to the commission of another crime.’ (Stanworth, supra, 11 Cal.3d at p. 600, 114 Cal.Rptr. at p. 259, 522 P.2d at p. 1067.) The majority treat the movement from the elevator to the closet and then the movement to the apartment as two separate asportations. This is in my view unrealistic since the stay in the storage room was only to avoid detection by passers-by while in transit to the apartment. It was one course of action but whether it be one or two asportations is immaterial.

Count I should be reversed.

FOOTNOTES

1.  On April 13, 1975, Maria observed appellant at the swimming pool. He had been staring at her. He offered her his pool chair. She saw him later that afternoon on a first-floor balcony overlooking the pool. On another occasion prior to the rape, she saw him in the outdoor parking area.

2.  Maria's roommate also identified appellant as the man she and Maria had seen at the swimming pool on April 13.

3.  The alleged inconsistencies are: (1) whether Maria saw appellant for 10 seconds or for 20 seconds as he entered the elevator, and (2) whether the pants worn by appellant upon his arrest were the same pants or merely ‘similar’ to the ones he wore on the day of the rape.

4.  Penal Code section 461 provides:‘Burglary is punishable as follows:‘1. Burglary in the first degree: by imprisonment in the state prison for not less than five years.‘2. Burglary in the second degree: by imprisonment in the county jail not exceeding one year on in the state prison for not less than one year or more than 15 years.‘The preceding provisions of this section notwithstanding, in any case in which defendant committed burglary and in the course of commission of the burglary, with the intent to inflict such injury, inflicted great bodily injury on any occupant of the premises burglarized, such fact shall be charged in the indictment or information and if found to be true by the jury, upon a jury trial, or if found to be true by the court, upon a court trial, or if admitted by the defendant, defendant shall suffer confinement in the state prison from 15 years to life.’ (Emphasis added.)

5.  Appellant's argument also ignores the forcible oral copulation and sodomy in this case which led immediately to vomiting and diarrhea, and the fact that the entire incident understandably made Maria hysterical. (See People v. Gomez, 252 Cal.App.2d 844, 858 859, 60 Cal.Rptr. 881.)

ASHBY, Associate Justice.

KAUS, P. J., concurs.

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