Filed 9/3/26 P. v. Aguilar CA2/2 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B342874
Plaintiff and Respondent, (Los Angeles County Super. Ct. No. VA153671)
v.
ORDER MODIFYING
JOSE ELIAS AGUILAR, OPINION AND DENYING REHEARING
Defendant and Appellant.
NO CHANGE IN THE JUDGMENT
THE COURT:
It is ordered that the opinion filed herein on August 24, 2026, be modified as follows:
On page 9, at the end of the last sentence before the subheading for part 2 of the Discussion, add as footnote 2
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the following footnote, which will require renumbering of all subsequent footnotes:
2 In a petition for rehearing, appellant argues that
this court’s reliance on “reasoning and authority not raised by the People, which appellant has not had the opportunity to address” entitles him to a rehearing. This argument lacks merit. Government Code section 68081 requires that the parties have “an opportunity to present their views” “upon an issue which was not proposed or briefed by any party to the proceeding.” (People v. Alice (2007) 41 Cal.4th 668, 674, italics added.) Appellant states that he “argued in his brief and at oral argument” that “the People presented a theory of liability for first degree felony murder based on a legally insufficient basis,” which is precisely the claim we have rejected in affirming his murder conviction. Appellant takes issue with our reliance on cases and reasoning that the People did not cite, but “the fact that a party does not address an issue, mode of analysis, or authority that is raised or fairly included within the issues raised does not implicate the protections of [Government Code] section 68081.” (Alice, at p. 679; People v. Sorden (2021) 65 Cal.App.5th 582, 592, fn. 4; accord, North American Title Co., Inc. v. Gugasyan (2021) 73 Cal.App.5th 380, 391, fn. 7 [“It is well settled that ‘Government Code section 68081 does not give the parties a right to submit supplemental briefs when an appellate court relies upon authority that was not briefed by the parties . . . .’ ”].)
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There is no change in the judgment.
Appellant’s petition for rehearing is denied.
Filed 8/24/26 P. v. Aguilar CA2/2 (unmodified opinion)
NOT TO BE PUBLISHED IN THE 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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B342874
Plaintiff and Respondent, (Los Angeles County Super. Ct. No.
v. VA153671)
JOSE ELIAS AGUILAR,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County, Andrew C. Kim, Judge. Affirmed with directions.
Alan Siraco, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Charles C. Ragland and Susan Sullivan Pithey, Assistant Attorneys General, Steven D. Matthews and Michael J. Wise, Deputy Attorneys General, for Plaintiff and Respondent.
_________________________________________
Jose Elias Aguilar was convicted of murder and numerous counts of carjacking and kidnapping after he went on a spree of stealing cars with people inside, several of whom escaped by jumping out of the moving vehicles, and one of whom died. He argues that the jury instructions allowed him to be convicted of murder on an invalid theory and that insufficient evidence supports several of the other counts. We reject his contentions and affirm.
FACTS AND PROCEDURAL HISTORY 1. Facts Around 6:40 p.m. on July 2, 2020, while Paris Spencer (Spencer) and Lorena Viveros sat in a parked BMW, appellant approached them and opened the driver’s door. Spencer grabbed the door and closed it. Appellant told her to get out of the car, and she refused. He asked her if she believed in Jesus, and then swung a machete into the driver’s window, shattering it. Spencer pepper sprayed him, but he continued to hit the car. The women escaped through the passenger’s side. Appellant got into the BMW and drove off.
Less than an hour later, around 7:30 p.m., Cristina Castellanos Rodriguez (Castellanos) drove her two-door Honda Civic to a 99-cent store. She parked on the street and walked toward the store, leaving her three children, Wendy, Kimberly, and Andy in the car, Wendy in the front passenger’s seat. Appellant crossed the street, got into the driver’s seat, and locked the doors. Wendy unlocked the door to get out of the car and pulled the lever to fold the seat forward for her siblings to get out. Appellant grabbed onto Wendy’s sweater and told her to “stop.” He started driving. Wendy fell out of the car and hit her head, and her sister fell out with her. A man with a cane got in front of
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the car and told appellant to let the boy out, and Andy climbed out before appellant drove off.
On July 5, 2020, Jorge Cortes drove to a market with his wife and four kids. He parked his minivan, and he and his wife went inside, leaving the kids in the car with the air conditioning on. Johann and Jorge Jr. sat in the back, Isabella and Alexia in the middle row. They chatted while they waited for their parents to return. Appellant suddenly opened the door, got into the driver’s seat, and said, “Vámonos.” The children screamed “No!” and the oldest daughter, Alexia, hit appellant. She then opened the door to the minivan and got out of the car.
Appellant began to drive the minivan, and Johann jumped out. Appellant sped off into the streets, where he drove in a “jerking” manner. Jorge Jr. leapt from the van and suffered a serious head injury. Appellant kept driving, swerving into the parking lane next to the sidewalk and then back into the lane of traffic. He drove erratically and was seen making motions with his arms. The last child in the car, Isabella, came out of the fastmoving van. She slammed into a fire hydrant on the sidewalk and died instantly.
Appellant stopped the minivan in an area with street vendors. He jumped out of the car and ran across the street, where he climbed into another car—this time with Daniella Ramirez (Ramirez) and her two-year old son in the backseat. Ramirez’s boyfriend, Pablo Pena (Pena), was buying a drink from a vendor nearby when he heard Ramirez scream that someone was taking the car. He ran back to the car and got into the backseat. Appellant began driving “straight ahead.” Pena grabbed appellant from behind in a chokehold and then hit him in the face a few times, but appellant seemed unaffected and
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continued driving. Ramirez grabbed the steering wheel and pulled it, turning the car into a guardrail. The impact caused the car to stall, and the airbags deployed. Appellant got out and tried to climb into other cars, but was unsuccessful. A group of bystanders apprehended and restrained him until the police came. 2. Procedural history Appellant was charged with one count of murder (Pen. 1 Code , § 187, subd. (a)), 11 counts of carjacking (§ 215, subd. (a)); five counts of kidnapping during the commission of a carjacking (§ 209.5); one count of corporal injury to a child (§ 273d, subd. (a)); and two counts of attempted kidnapping during a carjacking (§§ 664, 209.5, subd. (a)). It was further alleged that appellant committed the murder during the commission of a carjacking and kidnapping (§ 190.2, subd. (a)(17)), that appellant caused great bodily injury (§ 12022.7, subd. (a)) in connection with the kidnapping and corporal injury of Jorge Jr., and that various aggravating factors applied (Cal. Rules Court, rule 4.421). It was also alleged that appellant had a prior conviction (§ 667, subd. (a)) and a prior strike (§§ 667, subd. (d), 1170.12, subd. (b)). He pleaded guilty to one count of carjacking for a separate incident that occurred on May 9, 2020. In connection with that count, he admitted the prior strike and two aggravating factors.
On September 5, 2024, a jury convicted appellant of first degree murder and all remaining counts except for one count of kidnapping (concerning Andy), on which it instead found appellant guilty of the lesser offense of attempted kidnapping for carjacking. The court dismissed seven counts of carjacking and
1 Undesignated statutory references are to the Penal Code.
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the five-year enhancement (§ 667, subd. (a)) under section 1385. It sentenced appellant to 44 years 8 months, life without the possibility of parole, plus 45 years to life.
DISCUSSION
1. There was no instructional error Appellant argues that the instructions allowed the jury to find him guilty of felony murder without finding he was the “actual killer,” as required by the 2019 amendments to section 189 (Sen. Bill No. 1437). This is so, he urges, because the instruction given on general causation principles (CALCRIM No. 240) “negated” the instruction that the actual killer be someone “who personally commits an act that directly causes the victim’s death” (CALCRIM No. 540A). Assuming appellant did not forfeit this point by failing to object below (§ 1259), we find no such error in the instructions.
A claim of instructional error is reviewed de novo. (People v. Mitchell (2019) 7 Cal.5th 561, 579.) A defendant who challenges an instruction as being subject to an erroneous interpretation must show a reasonable likelihood that the jury understood it that way. (People v. Hin (2025) 17 Cal.5th 401, 492; People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 433.) The correctness of the jury instructions is determined from the entire charge of the court, not from consideration of any instructions in isolation. (Hin, at p. 492; People v. Solomon (2010) 49 Cal.4th 792, 822.)
Appellant does not dispute that the jury received the correct instructions on the actual-killer theory of felony murder with CALCRIM No. 540A, providing: “To prove that the defendant is guilty of first degree murder under this theory, the People must prove that: [¶] 1. The defendant committed or
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attempted to commit a carjacking or kidnapping during a carjacking; [¶] 2. The defendant intended to commit carjacking or kidnapping during the carjacking; AND [¶] 3. While committing or attempting to commit carjacking or kidnapping during a carjacking, the defendant personally committed an act that directly caused the death of another person. [¶] A person who was the actual killer may be guilty of felony murder even if the killing was unintentional, accidental, or negligent. [¶] The actual killer is a person who personally commits an act that directly causes the victim’s death.” (Italics added.) Nor does appellant dispute that the jury was correctly instructed on the murdercarjacking /kidnapping special circumstance with CALCRIM No. 730, which required proof that: “1. The defendant committed a carjacking or kidnapping; [¶] 2. The defendant intended to commit a carjacking or kidnapping; AND [¶] 3. The defendant personally committed an act that directly caused the death of another person.” (Italics added.)
Instead, appellant argues that CALCRIM No. 240, the instruction given on general causation principles, conflicted with the requirement that appellant be the “actual killer”—that is, one who personally committed the act that directly caused the victim’s death. CALCRIM No. 240 provides: “An act causes death if the death is the direct, natural, and probable consequence of the act and the death would not have happened without the act. A natural and probable consequence is one that a reasonable person would know is likely to happen if nothing unusual intervenes. In deciding whether a consequence is natural and probable, consider all the circumstances established by the evidence. [¶] There may be more than one cause of death. An act causes death only if it is a substantial factor in causing
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death. A substantial factor is more than a trivial or remote factor. However, it does not have to be the only factor that causes death.” (Italics omitted.)
CALCRIM Nos. 540A and 240 do not contradict one another. Our Supreme Court has recognized that “[p]roximately causing and personally inflicting [death] are two different things.” (People v. Bland (2002) 28 Cal.4th 313, 336; see, e.g., People v. Sanchez (2001) 26 Cal.4th 834, 847 [two men engaged in shootout, only one of whom shot and killed a bystander, were both proximate causes of death].) The term “actual killer” does not exclude the possibility of concurrent causes of death. (People v. Garcia (2022) 82 Cal.App.5th 956, 967 [Senate Bill No. 1437 “contains no expressed intent to modify the felony-murder rule’s application to a perpetrator whose acts were a concurrent cause of the death”]; see People v. Carney (2023) 14 Cal.5th 1130, 1138– 1139 [a cause is concurrent if it was operative at time of murder and coincided with another cause to produce the murder].)
Appellant relies on People v. Vang (2022) 82 Cal.App.5th 64 to argue that the instructions allowed the jury to convict him without finding he was the actual killer. Assuming Vang was correctly decided—a premise our Supreme Court has not opined on (People v. Oyler (2025) 17 Cal.5th 756, 842 [“we express no view . . . at this time”])—it is distinguishable both legally and factually. In Vang, the jury was instructed that the defendant was guilty of first degree felony murder “if the People proved that: (1) defendant committed the crime of kidnapping; (2) defendant intended to commit a kidnapping; and (3) while committing the kidnapping, defendant caused the death of another person.” (Vang, at p. 80, italics added.) The jury received substantially the same instruction on the “[kidnapping-murder]
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special circumstance allegation.” (Vang, at p. 80, fn. 3.) Appellant’s jury, on the other hand, was instructed that it had to find appellant personally committed the act that directly caused the victim’s death—i.e., that he was the “actual killer” (Vang, at p. 89)— in order to convict him on both the murder count and the special circumstance.
Vang also concluded that the evidence was insufficient to “permit any inference that [the] defendant was the direct cause of [the victim’s] death.” (Vang, supra, 82 Cal.App.5th at p. 91.) Appellant does not challenge the sufficiency of the evidence for his murder conviction, but we note some significant differences in the facts. Although this case and Vang both involve victims who died after leaping from cars, the Vang victim was an adult who had been the defendant’s girlfriend, and there was no evidence that the defendant pushed her or encouraged her to jump from his car. (Id. at p. 84.) Here, the victim was a child to whom appellant was a complete stranger; appellant had just stolen her parents’ van with her and her siblings still inside; the victim’s siblings had already jumped from the van, after which appellant continued driving fast and erratically; and a witness saw him moving his arms before she exited the van, from which a jury could reasonably infer that he was telling her to get out (if not pushing her) from the van.
To support his argument that the jury could have found him guilty of murder without finding he was the actual killer, appellant points to the People’s statement in their closing argument that appellant could be convicted of murder whether or not he physically pushed Isabella out of the van. Nothing in this statement suggests the jury might have convicted appellant on an invalid theory. Appellant’s driving the van at a fast speed
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(with a kidnapped child inside whose siblings had all jumped out) played an essential role in her death from slamming at a high velocity into a fire hydrant upon exiting the van, whether or not appellant encouraged her to jump or physically shoved her. Had the child gotten out of a stationary van, she would have reached the ground safely. That she may have played a role in exiting from the van does not negate the possibility that appellant also personally committed an act that directly caused her death, which the jury necessarily found. (People v. Bertsch and Hronis (2026) 19 Cal.5th 183, 242 [we assume the jurors understood and followed the instructions].) Because the record does not affirmatively show the jury relied on an invalid theory, we reject appellant’s claim of instructional error. 2. Substantial evidence supports the carjacking counts Appellant argues that substantial evidence does not support his convictions for carjacking Castellanos and two of her children, Kimberly and Andy, outside of the 99-cent store. “In reviewing the sufficiency of the evidence to support a judgment of conviction, we examine the entire record in the light most favorable to the prosecution, presuming in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence, to determine whether a rational trier of fact could have found the defendant guilty beyond a reasonable doubt.” (People v. Hayes (1990) 52 Cal.3d 577, 631.)
“ ‘Carjacking’ ” is “the felonious taking of a motor vehicle in the possession of another, from his or her person or immediate presence, or from the person or immediate presence of a passenger of the motor vehicle, against his or her will and with the intent to either permanently or temporarily deprive the person in possession of the motor vehicle of his or her possession,
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accomplished by means of force or fear.” (§ 215, subd. (a).) One “may be deprived of possession not only when the perpetrator physically forces the victim out of the vehicle, but also when the victim remains in the car and the defendant exercises dominion and control over the car by force or fear.” (People v. Gray (1998) 66 Cal.App.4th 973, 985.)
A. Substantial evidence supports the “force or fear”
required for carjacking
“ ‘Force’ ” and “ ‘fear’ ” are terms that “have no technical meaning peculiar to the law and must be presumed to be within the understanding of the jurors.” (People v. Anderson (1966) 64 Cal.2d 633, 640; People v. Lopez (2017) 8 Cal.App.5th 1230, 1235.) Direct proof of fear is unnecessary; it may be inferred from the circumstances under which the property is taken. (People v. Morehead (2011) 191 Cal.App.4th 765, 775 (Morehead).) Because carjacking is a “ ‘direct offshoot of robbery,’ ” and the carjacking statute “ ‘tracks the language in the robbery statute (§ 211),’ ” “we look to interpretations of the force [or fear] requirement in the robbery context in construing the requirement in the carjacking context.” (People v. Hudson (2017) 11 Cal.App.5th 831, 835; accord, People v. Lopez (2003) 31 Cal.4th 1051, 1060– 1061.)
Section 212 defines “fear” as either the “fear of an unlawful injury to the person or property of the person robbed, or of any relative of his or member of his family,” or “fear of an immediate and unlawful injury to the person or property of anyone in the company of the person robbed at the time of the robbery.” The requisite fear need not be the result of an express threat. (People v. Flynn (2000) 77 Cal.App.4th 766, 772 (Flynn).)
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Substantial evidence supports the “fear” element with respect to Castellanos, Andy, and Kimberly.2 The mere circumstance that appellant—a stranger to this family—got into the driver’s seat of their car provides a sufficient basis to infer that he inspired fear in Andy and Kimberly, who were sitting in the backseat. (People v. Holt (1997) 15 Cal.4th 619, 690 [“Fear may be inferred from the circumstances in which a crime is committed or property is taken”].) Although not required (ibid.; Morehead, supra, 191 Cal.App.4th at p. 775), the record also contains direct proof: Kimberly testified she was scared, and Wendy testified that “everyone was yelling” when appellant got into the car.3 Castellanos testified that when she heard her children screaming, she turned around and saw appellant in the car with Andy still inside. A man with a cane stood in front of the car, telling appellant to let the boy out. A jury could reasonably infer from these circumstances that Castellanos was afraid for her son’s life, and that her fear prevented her from taking any action to reclaim possession of her car before appellant drove it away.
2 We exercise our discretion to address appellant’s argument with respect to Andy and Kimberly, even though the trial court dismissed these carjacking counts.
Appellant does not challenge his conviction for carjacking Wendy, who was sitting in the front seat of the two-door car, presumably because the record shows appellant used “force” when he pulled on her sweater and told her to “stop” getting out of the car.
3 Andy did not testify because he has autism and is nonverbal.
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B. Substantial evidence shows the car was taken from Castellanos’s “immediate presence” Appellant argues that the evidence does not show appellant took the car from Castellanos’s immediate presence. “ ‘A vehicle is within a person’s immediate presence for purposes of carjacking if it is sufficiently within [her] control so that [she] could retain possession of it if not prevented by force or fear.” (People v. Johnson (2015) 60 Cal.4th 966, 989 (Johnson).) Carjacking “does not require that the victim be inside or touching the vehicle at the time of the taking.” (People v. Medina (1995) 39 Cal.App.4th 643, 650 [by using terms “from the person” or “from the immediate presence,” the Legislature was using more expansive view of presence]; People v. O’Neil (1997) 56 Cal.App.4th 1126, 1131 (O’Neil); People v. Coryell (2003) 110 Cal.App.4th 1299, 1303.)
Castellanos was only steps away from her car—close enough to hear the screams of her children and to turn around to see that her daughters had fallen onto the ground and that appellant was driving off with her son. A jury could reasonably find that she would have retained possession of her car had appellant not prevented her from doing so. (Cf. Johnson, supra, 60 Cal.4th at p. 990 [car was taken from victim’s immediate presence where car was taken from the garage and victim was in the kitchen].) That appellant seized the opportunity to get into the driver’s seat of the car just after Castellanos had gotten out and walked a few steps away does not mean the taking occurred outside her “immediate presence.” (See People v. Webster (1991) 54 Cal.3d 411, 441 [“ ‘trick or device by which the physical presence of the [robbery victim] was detached from the property under [her] protection and control’ ” should not avail a defendant
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of the claim that the property was taken outside of her “ ‘immediate presence’ ”].)
Nor does the fact that Castellanos experienced fear moments after appellant took possession of the vehicle change our analysis. (O’Neil, supra, 56 Cal.App.4th at p. 1133 [harm sought to be addressed by the carjacking statute “exists whenever there is a confrontation between the taker . . . and the victim ‘and in no way depends on whether the confrontation and use of “force or fear” occurs before, while, or after the defendant initially takes possession of the vehicle’ ”]; People v. Gomez (2008) 43 Cal.4th 249, 261; Flynn, supra, 77 Cal.App.4th at p. 772.)
Our conclusion furthers the purpose of the carjacking statute, which is to address “a particularly serious crime that victimizes persons in vulnerable settings and, because of the nature of the taking, raises a serious potential for harm to the victim, the perpetrator and the public at large.” (People v. Antoine (1996) 48 Cal.App.4th 489, 495; People v. Hill (2000) 23 Cal.4th 853, 859–860 [citing this purpose of the carjacking statute in concluding that an infant can be victim of carjacking despite inability to give or withhold consent].) 3. Substantial evidence supports the attempted kidnapping of Andy Appellant argues that his moving Andy “approximately two car lengths before stopping and allowing” him to get out was “a very short distance” and “did not expose Andy to an increased risk of harm.” This argument ignores that the crime of attempted kidnapping does not require any asportation, let alone movement that substantially increases harm. (E.g., People v. Cole (1985) 165 Cal.App.3d 41, 50, citing People v. Fields (1976) 56 Cal.App.3d 954 [attempted kidnapping occurred where the
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defendant tried to force a young girl on the street into a car but bailed when she screamed].) 4. Substantial evidence supports the kidnapping for carjacking counts as to Ramirez and Pena Kidnapping during the commission of carjacking occurs when a “person who, during the commission of a carjacking and in order to facilitate the commission of the carjacking, kidnaps another person” (§ 209.5, subd. (a)), and “the movement of the victim is beyond that merely incidental to the commission of the carjacking, . . . a substantial distance from the vicinity of the carjacking, and the movement . . . increases the risk of harm to the victim over and above that necessarily present in the crime of carjacking itself” (id., subd. (b)). The risk of harm may be either physical or psychological. (People v. Waqa (2023) 92 Cal.App.5th 565, 578 (Waqa).)
Kidnapping for carjacking “does not require that the physical movement of the victim substantially increase the risk of harm.” (People v. Ortiz (2002) 101 Cal.App.4th 410, 415.) Rather, “once the elements of carjacking have been satisfied, there needs to be asportation only for ‘a substantial distance’ as defined in simple kidnapping.” (People v. Moore (1999) 75 Cal.App.4th 37, 46.)
The asportation element does not require a specific minimum distance—the fact finder “ ‘should instead consider the totality of the circumstances,’ ” such as “ ‘ “whether that movement increased the risk of harm above that which existed prior to the asportation, decreased the likelihood of detection, and increased both the danger inherent in the victim’s foreseeable attempts to escape and the attacker’s enhanced opportunity to
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commit additional crimes.” ’ ” (Waqa, supra, 92 Cal.App.5th at pp. 577–578.)
Substantial evidence supports the jury’s finding that appellant moved Pena and Ramirez a substantial distance for the purpose of kidnapping for carjacking. Although the record does not disclose a specific distance, it provides an ample basis to conclude that the movement increased the risk of harm and danger inherent in the victim’s attempts to escape. Ramirez grabbed the steering wheel to crash the car into a guardrail to prevent appellant from driving farther away and facilitate her and Pena’s escape. She would not have been compelled to make this dangerous maneuver had appellant not driven the car away with her and Pena still inside. The other instances of carjacking in this case provide vivid illustrations of the kinds of harm appellant risked by taking and driving cars with passengers inside. A reasonable fact finder could also conclude that the movement decreased appellant’s likelihood of detection and enhanced his opportunity to commit further crimes. Indeed, it was only because the car stalled upon hitting the guardrail that appellant got out of the vehicle and was apprehended by bystanders. He might otherwise have gotten out of the area and had the opportunity to carjack and kidnap yet another set of victims. 5. Substantial evidence supports appellant’s conviction for inflicting injury on Jorge Jr. and the great bodily injury enhancement The crime of inflicting corporal injury on a child (§ 273d)
requires “ ‘1. A person willfully inflicted cruel or inhuman punishment or an injury upon the body of a child; and [¶] 2. The infliction of this punishment or this injury resulted in a
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traumatic condition.’ ” (People v. Cockburn (2003) 109 Cal.App.4th 1151, 1160.) A deliberate intent to cause a traumatic condition is unnecessary—a general intent to inflict upon a child any cruel or inhuman corporal punishment or injury is sufficient. (People v. Sargent (1999) 19 Cal.4th 1206, 1219– 1220.)
An enhancement under section 12022.7 requires that the defendant “personally inflict” a great bodily injury. Whether conduct “personally inflicts” injury “depends on the circumstances underlying the offense and the defendant’s actions in committing the crime.” (People v. Ollo (2021) 11 Cal.5th 682, 688 (Ollo).) The phrase “personally inflicts” means that someone directly and not through an intermediary causes harm to be endured. (Ibid.) Nothing in the terms “personally” or “inflicts” “implies that the defendant must act alone in causing the victim’s injuries.” (People v. Modiri (2006) 39 Cal.4th 481, 493.)
Appellant urges that insufficient evidence shows appellant “personally inflicted” Jorge Jr.’s injuries.4 Substantial evidence supports the jury’s finding that appellant personally and willfully inflicted Jorge Jr.’s injuries when he kidnapped Jorge Jr. and drove fast as Jorge Jr. fell from the van. The jury could find from the circumstances that Jorge Jr. did not act as an “independent intermediary” when he exited from the van. (Ollo, supra, 11 Cal.5th at p. 690–691 [“Whereas a victim with full capacity who voluntarily chooses to ingest a controlled substance is an independent intermediary, a victim who ingests drugs as a result of coercion or with diminished capacity is not”].) Rather, the
4 We note that section 273d does not by its language require such “personal infliction,” and appellant does not cite any case that reads that requirement into the statute.
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record makes clear that even if Jorge Jr. deliberately jumped or fell from the moving van, that decision was based on sheer terror from being kidnapped by a stranger and was thus not voluntary in any meaningful sense.
Moreover, the record supports that Jorge Jr.’s injuries were caused not merely by his exit from the van, but also by the speed and erratic movement of the van as appellant was driving it. (See People v. Berch (2026) 120 Cal.App.5th 401, 405–406 [overwhelming evidence showed the defendant’s erratic driving was a direct cause of the victim’s injuries, where the defendant accelerated as the victim tried to exit the car]; People v. Guzman (2000) 77 Cal.App.4th 761, 764 [the defendant’s intoxication and unsafe turn into oncoming traffic supported enhancement for great bodily injury to his passenger, even if the oncoming car actually caused the injury].) 6. One of appellant’s sentences concerning Jorge Jr.’s injuries must be stayed Appellant contends that the great bodily injury enhancement in connection with the kidnapping of Jorge Jr. and the corporal-injury-on-a-child count both concern the same conduct, such that one of the sentences must be stayed under section 654. The People agree, and so do we. The People urge us to stay the sentence on the corporal injury count, which is 2 years 8 months. Appellant correctly notes that he received a three-year sentence for the enhancement, and argues that we should remand to allow the trial court to exercise its discretion in determining which sentence to stay. We agree that remand is appropriate because the trial court has discretion where “[a]n act . . . that is punishable in different ways by different provisions of
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law [to punish a defendant] under either of such provisions.” (§ 654; see People v. Mani (2022) 74 Cal.App.5th 343, 351.)
DISPOSITION
The matter is remanded for the trial court to stay one of two aforementioned sentences—corporal injury on a child (Pen. Code, § 273d; count 6) or the great-bodily-injury enhancement (Pen. Code, § 12022.7, subd. (a)) imposed in connection with count 5. The court is directed to prepare an amended abstract of judgment reflecting its modification and to forward a certified copy to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED.
LUI, P. J.
We concur:
RICHARDSON, J.
GOORVITCH, J.