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Name: People v. Curry
Case #: C052801
Court: CA Court of Appeal
District 3 DCA
Opinion Date: 12/31/2007
Subsequent History: 1/22/08: mod. & rehrg den.

Jury instructions in kidnap/robbery case were not erroneous. The three appellants were convicted of several offenses following the kidnap, assault, and robbery of the pregnant victim. On appeal appellant Russell argued that CALCRIM 1203 on kidnap for robbery improperly allowed the jury to convict her of aggravated kidnaping without finding that she had the intent to rob the victim at the time the kidnap commenced. The appellate court rejected the argument, finding CALCRIM 1203 to be a correct statement of the law. Although it does not expressly state that the intent to rob must exist at the time the movement commences, the instruction adequately expresses the requirement. Appellant Buford argued that the court prejudicially erred in failing to instruct the jury on the requirement of unanimity with regard to the robbery charge. He contended that there was evidence of three acts of robbery, and the jurors could have disagreed about which act Buford committed. The appellate court found the error harmless. The prosecutor argued that Buford was involved in all three acts; Buford contended that he did not take anything from the victim. The evidence was overwhelming that Buford was the mastermind of all the offenses and aided in all of the robberies. All three appellants contended the court erred in instructing the jury on the effect of voluntary intoxication on the charges. The appellate court found that the instructions on voluntary intoxication were correct statements of the law, and even if they were flawed, the error was harmless in light of the record and the verdicts. CALCRIM 404 is faithful to the People v. Mendoza, which does not misstate the law. The court also found no error in the instructions on premeditation, and concluded that even if the instructions were improper, there was no prejudice because the evidence was overwhelming that the offense was premeditated.
The court’s failure to allow the jury to determine whether the aggravating factors were true was harmless error. The court also found that the trial court erred when it sentenced appellants Buford and Curry to the upper terms without permitting the jury to decide the aggravating factors. (That the victim was vulnerable, the crime had a high degree of cruelty, and the conduct took place over a long period of time.) Based on the record, a jury would have found the cited aggravating circumstances true had they been given the opportunity.