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Name: People v. Ortiz et al.
Case #: D058348
Court: CA Court of Appeal
District 4 DCA
Division: 1
Opinion Date: 08/29/2012

The crime of kidnapping during carjacking (Penal Code section 290.5) requires proof that the intent for the kidnapping was to facilitate the carjacking. Appellants were convicted of kidnapping during carjacking. At trial, evidence was presented that the victims had parked at a restaurant where they were confronted by the three appellants, one of whom had a gun, and forced back into the car. One of the appellants drove the car, a late model BMW. When he saw police pursuing them, he attempted to evade by driving at a high rate of speed, weaving in and out of traffic, and running stop signs. He finally stopped at the freeway center divide, at which point the three appellants fled the car. On appeal, they contended that there was insufficient evidence to support the finding that they kidnapped the victims to facilitate the carjacking. Affirmed. Penal Code section 290.5 requires there be an intent that the kidnapping facilitate the carjacking, even if there are other concurrent intents for the kidnapping. The court here found that there was sufficient evidence to infer that the defendants kidnapped for the dual purposes of taking the victims and taking the car. Although appellants contended that the kidnapping was solely to take the victims to pay for a drug debt owed, a jury could reasonably infer that appellants took the BMW with the intent to hold or sell it as partial payment for the drug debt. Assuming that one of the purposes was to kidnap and hold the victims for ransom, this purpose does not disprove that another purpose of the kidnapping was to facilitate the carjacking.

The trial court did not err by failing to instruct on simple kidnapping as a lesser included offense of kidnapping during a carjacking because there was insufficient evidence in the record to support a verdict of simple kidnapping. There was no doubt that the kidnappings occurred during a carjacking and there was an absence of substantial evidence to support a reasonable inference that the kidnappings were not done to facilitate the carjacking. It could not be reasonably inferred from the evidence that the sole purpose in kidnapping the victims was to hold them for ransom.

CALCRIM No. 1204 correctly instructs that one of the requirements to find a defendant guilty of a violation of section 290.5 is that the kidnapping is done to facilitate the carjacking. Contrary to appellants’ contention, there is no requirement that the sole or primary purpose of the kidnapping be to facilitate the carjacking.