P. v. Handley

Filed 1/6/20 P. v. Handley CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent,
v.
KYLE SHIRAKAWA HANDLEY,
Defendant and Appellant.
G056608
(Super. Ct. No. 13CF3394)
O P I N I O N
Appeal from a judgment of the Superior Court of Orange County, Gregg
L. Prickett, Judge. Affirmed.
Cliff Gardner and Daniel Buffington, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant
Attorney General, Lance E. Winters, Assistant Attorney General, Zee Rodriguez and
Blythe J. Leszkay, Deputy Attorneys General, for Plaintiff and Respondent.

-- 1 of 26 --

2
Appellant Kyle Shirakawa Handley was convicted of multiple crimes for
participating in a brutal kidnapping scheme that resulted in one of the victims being
tortured and sexually mutilated. On appeal, he contends 1) he did not receive adequate
notice of the charges, 2) the jury was improperly instructed on how to view accomplice
testimony, 3) he was denied due process by virtue of a two-week recess that occurred
during the trial, and 4) his sentence violates Penal Code section 654.1 Finding these
contentions unmeritorious, we affirm the judgment.
FACTS
Appellant and the targeted victim, Michael S., were not strangers. In 2011,
appellant was a marijuana vendor, and Michael co-owned two medical marijuana
dispensaries in Orange County. Michael purchased marijuana from appellant for his
dispensaries, and the two became friends. Their friendship was on full display in May
2012, when appellant joined Michael and his other friends in Las Vegas for a weekend
getaway. During the trip, Michael freely spent thousands of dollars on food, lodging and
entertainment. And, as was his wont, he paid for everything with cash.2
Appellant appeared to have a good time in Vegas. But after the trip, he
suddenly stopped communicating and doing business with Michael. Although Michael
tried contacting him on several occasions, appellant never returned his calls or came by
his dispensaries, as he had done in the past. Appellant disappeared from Michael’s life,
both professionally and personally, for no apparent reason.
At the time, Michael really didn’t give that development much thought.
His dispensaries were doing well, and he was happily renting a room in a house on the
Balboa Peninsula in Newport Beach. He certainly did not foresee the dark events that
1 All further statutory references are to the Penal Code.
2 Due to the federal prohibition on marijuana sales, credit card companies and banks were unwilling
to do business with Michael’s dispensaries. Consequently, Michael took in a lot of cash he had nowhere to deposit.

-- 2 of 26 --

3
transpired in his life on October 2, 2012, which was roughly five months from the last
time he had seen or heard from appellant.
That evening, Michael was awakened in the middle of the night by two men
who were pointing a flashlight and a shotgun in his face. When Michael reached for the
gun, the men beat and choked him, causing him to pass out momentarily. The men
bound Michael’s feet together and tied his hands behind his back with zip ties. They also
blindfolded him and taped his mouth shut. Then they dragged him down the stairs and
placed him in a hallway next to his roommate Mary B., who, like Michael, was awakened
at gunpoint, tied up, gagged and blindfolded by the intruders. However, unlike Michael,
Mary was not harmed in any other way. To the contrary, they assured her, “This isn’t
about you. Just be quiet. Don’t fight . . . and you’ll be alright.”
Mary noticed the men spoke with a fake Spanish accent, as if they were
trying to disguise their voices. She also surmised there were three intruders in all because
while one of them stood guard over her and Michael in the hallway, she heard two others
ransacking the residence upstairs. After about 15 minutes, those two returned downstairs
and asked Michael, “Where’s the money?” Michael said he had $2,000 hidden in a sock
in his room, but the men were not interested in that. They told Michael they wanted a
million dollars from him. When Michael said he did not have that much money, they
carried him and Mary to a van outside and took them to the Mojave Desert.
Along the way, Michael was subjected to horrific abuse. His captors
thought he had buried a million dollars somewhere in the desert, and in order to get him
to tell them where it was, they repeatedly stomped him with their boots, beat him with a
rubber hose, shocked him with a taser, and burned him with a blowtorch. Michael tried
to explain to them that there was no million dollars, but every time he did so, they abused
him some more.
Although the men did not harm Mary, she was in the back of the van with
Michael during the entire trip. In fact, she was so close to him that when his legs

-- 3 of 26 --

4
twitched from being tasered, they would sometimes come into contact with her. The men
beat and berated Michael whenever that happened. Even though his leg movements were
involuntary, they used every excuse they could find to abuse him. All told, the tasering,
burning and beating went on for about two and a half hours before the van finally pulled
over on a deserted road out near Rosamond.
Michael and Mary were still tied up and blindfolded when the men carried
them out of the van and put them down on the desert sand. Michael continued to insist he
knew nothing about any million dollars. Eventually, the men gave up on the money and
told Michael that if they couldn’t get the million dollars, then they “want[ed] his dick.”
They proceeded to hold Michael down, lower his shorts and put a zip tie around the base
of his penis. Then one of the men took out a knife and began cutting off Michael’s penis.
As he was doing so, the man chimed out the words “back and forth, back and forth” in a
sing-songy manner, as if he thought Michael’s suffering was a joke. When he finished
the deed, he doused Michael with bleach with the help of his companions. Then he
turned to Mary and told her he was going to toss his knife into the nearby bushes. He
said if she could find the knife and cut herself free, it would be her “lucky day.” He then
tossed the knife, told Mary to count to 100, and left with his cohorts in the van.
Mary managed to hitch up her blindfold and retrieve the knife, just as the
desert sun was beginning to appear on the horizon. She then walked about a mile to the
main road and flagged down a patrol officer from the Kern County Sheriff’s Department.
Mary directed the officer back to where Michael was located, and when they arrived
there, Michael was lying in the dirt, writhing in pain. Although he survived the ordeal, he
suffered burns and bruises all over his body. And despite a thorough search of the area,
his severed penis was never found.
During the ensuing investigation, Michael told police he had no known
enemies and could not think of anyone who would want to harm him. But when the
police canvassed Michael’s neighborhood in search of clues, they got a break. It turned

-- 4 of 26 --

5
out that on the afternoon of the kidnapping, one of Michael’s neighbors saw a white
pickup truck in the alley near Michael’s house. There were three men near the truck, one
of whom was wearing a hardhat. They extended a ladder onto Michael’s house, as if they
were there to do construction work, but they had no equipment and there was no
construction going on in the area. Thinking this suspicious, the neighbor jotted down the
truck’s license number. Upon running the number, investigators learned the truck was
registered to appellant.
At that time, appellant was living in Fountain Valley. When the police
searched his home, they found a bleach-stained shirt and zip ties resembling those used in
the kidnapping. They also noticed a very strong smell of bleach emanating from
appellant’s truck and found a glove in the passenger compartment of the vehicle. The
glove contained DNA from appellant’s friend and business associate Hossein Nayeri, and
DNA belonging to appellant’s high school buddy Ryan Kevorkian was found on one of
the zip ties.
Upon investigating Kevorkian, the police learned his wife Naomi had
worked with appellant and Nayeri in their marijuana business. In the months leading up
to the kidnapping, she enlisted a co-worker to create a phony email account that was used
to purchase tracking and surveillance equipment that was sent to appellant’s home. In
addition, she purchased a shotgun and rented the van that was used in the kidnapping.
After the police arrested appellant, Nayeri fled to Iran, leaving behind his
wife Cortney Shegerian. Shegerian was not cooperative when investigators initially
contacted her. However, she eventually agreed to tell the truth and testify at appellant’s
trial in exchange for a grant of immunity. She also worked with law enforcement to lure
Nayeri out of Iran to Europe so he could be extradited back to the United States.
Appellant, Nayeri, Naomi and Kevorkian were charged with two counts of
kidnapping for ransom, and one count each of aggravated mayhem and torture. (§§ 209,

-- 5 of 26 --

6
subd. (a), 205, 206.) It was also alleged they inflicted great bodily injury on Michael
while torturing him. (§ 12022.7.)
Appellant was tried separately. At that trial, Shegerian testified about her
relationship with Nayeri and the scheme to kidnap Michael. She said Nayeri was very
abusive to her and also very cunning.3 Shegerian also testified that Nayeri and appellant
were very close friends. Not only did they grow marijuana together, appellant lived with
Nayeri and Shegerian in Newport Beach in the fall of 2011. However, by the spring of
2012, the year the kidnapping occurred, appellant had moved to Fountain Valley, and
Nayeri was spending most of his time conducting surveillance activities.
The primary focus of those activities was Michael. Using high-tech
cameras and sophisticated GPS equipment, Nayeri monitored Michael’s car, home and
businesses, as well as his girlfriend and his parents. Nayeri also had Shegerian look up
Michael on the internet and talked to her about how they could go about poisoning his
dog.
In September 2012, a few weeks before the kidnapping, Nayeri was
monitoring Michael on his home computer while Michael was in the desert exploring a
potential mining investment. Nayeri asked Shegerian, “Why would someone be circling
out in the desert?” He then suggested that would be a great place to bury cash.
Around this same time period, Shegerian saw Nayeri and appellant
laughing one day while they were playing around with a blowtorch in Nayeri’s garage.
In addition to the blowtorch, Nayeri had a hardhat that he was scuffing up on the ground
to make it look worn.
At the end of September, as the kidnapping date grew closer, Nayeri had
Shegerian purchase four disposable “burner” phones. He gave one of the phones to
3 Cunning enough to break out of the Orange County Jail while awaiting trial. He was on the lam
for about a week before authorities apprehended him.

-- 6 of 26 --

7
Shegerian, one to appellant, and he kept one for himself.4 When appellant had trouble
activating his phone, Nayeri had Shegerian explain to him how to do it.
On the night of the kidnapping, Nayeri told Shegerian to use his iPhone in
the vicinity of their home, in an apparent attempt to create an alibi. She didn’t hear from
him again until eight o’clock the following morning. Calling from his burner phone, he
instructed Shegerian to put money in a meter where appellant’s truck was parked on the
Balboa Peninsula. Shegerian did as told. At Nayeri’s behest, she also bought four more
burner phones and gave them to Nayeri that evening.
According to Shegerian, Nayeri was frantic after appellant was arrested.
After destroying his phones, computers and surveillance equipment, he took a one-way
flight to his native Iran. During the first few months he was there, he convinced
Shegerian to send him money and lie to the police about his involvement in the case.
However, as noted above, Shegerian eventually helped authorities capture Nayeri in
2013.
Although Shegerian was an important witness for the prosecution, she was
not involved in the actual kidnapping, and thus her testimony did not directly implicate
appellant in the alleged offenses. However, based on all the evidence that was presented,
the prosecution theorized appellant, Nayeri and Kevorkian all worked together to carry
out the kidnapping scheme. In particular, the prosecution maintained Nayeri was the
group’s leader, Kevorkian provided muscle for the operation, and appellant played an
integral role as the driver of the van. Of course, given his prior relationship with
Michael, appellant also knew Michael was involved in a lucrative, all-cash business. The
prosecution argued this provided defendants with a compelling financial motive to
commit the alleged offenses.
4 Shegerian didn’t know what happened to the fourth phone, but the prosecution theorized Nayeri
gave it to Kevorkian so they could communicate with one another during the kidnapping.

-- 7 of 26 --

8
At trial, appellant did not present any evidence in his defense, nor did he
dispute the prosecution’s portrayal of Michael and Mary as the victims of a brutal
kidnapping scheme. Rather, he claimed there was insufficient evidence tying him to that
scheme.
Shortly before the parties rested, the charges against appellant were
modified in two respects. On the prosecution’s motion, the section 12022.7 great bodily
injury allegation charged in connection with the torture count was dismissed. In addition,
two special allegations were orally added to the kidnapping for ransom charges, namely
that Michael suffered bodily harm and that Mary was exposed to a substantial risk of
death. Appellant did not object to the inclusion of those special allegations, which were
explained in the jury instructions, discussed in closing argument, and included in the
verdict forms.
In the end, the jury found appellant guilty of the four substantive charges,
and it found the two newly-added special allegations attendant to the kidnapping for
ransom charges to be true. The trial court sentenced appellant to consecutive terms of life
in prison without parole (LWOP) on the kidnapping counts, plus consecutive terms of
seven years to life on the aggravated mayhem and torture counts. This appeal followed.
Notice of the Kidnapping Charges
Appellant contends the jury’s true findings on the special allegations added
to the kidnapping for ransom counts, as well as the LWOP sentence he received on each
of those counts, must be reversed because he was never formally charged with those
allegations. Although appellant was orally informed of the allegations, and his attorney
consented to them, he argues their inclusion in the verdict form violated his due process
rights because he was never advised they exposed him to a sentence of LWOP. The
Attorney General claims appellant forfeited this argument by failing to object to the
special allegations in the trial court. He also maintains appellant was afforded sufficient
notice of the special allegations to comport with due process. Although we reject the

-- 8 of 26 --

9
Attorney General’s forfeiture claim, we agree with him that appellant’s due process rights
were not violated by the manner in which he was charged, convicted or sentenced with
respect to the kidnapping for ransom charges.
Appellant’s claim requires us to examine the charging documents and the
particular offenses at issue in this case. In count 1 of the complaint, appellant was
charged with kidnapping Michael for ransom pursuant to section 209, subdivision (a),
and in count 2, he was charged with committing the same offense against Mary.
Subdivision (a) of section 209 states that anyone who kidnaps another
person for ransom “is guilty of a felony, and upon conviction thereof, shall be punished
by imprisonment in the state prison for life without possibility of parole in cases in which
any person subjected to any such act suffers death or bodily harm, or is intentionally
confined in a manner which exposes that person to a substantial likelihood of death, or
shall be punished by imprisonment in the state prison for life with the possibility of
parole in cases where no such person suffers death or bodily harm.”
When the victim suffers bodily harm or is exposed to a substantial
likelihood of death, thus triggering the greater sentence of LWOP, the offense is elevated
from simple kidnapping for ransom to aggravated kidnapping for ransom. (See People v.
Eid (2010) 187 Cal.App.4th 859, 868, fn. 6; People v. Chacon (1995) 37 Cal.App.4th 52;
People v. Ordonez (1991) 226 Cal.App.3d 1207, 1237.) Because neither one of those
circumstances was alleged in the complaint here, the parties agree appellant was
originally charged with simple kidnapping for ransom.
At the preliminary hearing, the prosecution presented evidence of the
harrowing circumstances under which Michael and Mary were kidnapped and the serious
injuries Michael suffered at the hands of his captors. The preliminary hearing judge
determined there was sufficient evidence to bind appellant over for trial on all of the
charges and allegations.

-- 9 of 26 --

10
The subsequently-filed information mirrored the complaint in all material
respects. Like the complaint, it alleged simple kidnapping for ransom in counts 1 and 2,
not the aggravated form of that offense.
. At trial, the only disputed issue was identification. Toward the end of the
prosecution’s case, the judge met with the parties to discuss jury instructions. The
prosecution proposed CALCRIM No. 1202, which sets forth the requirements for
aggravated kidnapping for ransom. Defense counsel did not object to that instruction.
And since his theory of the case was that appellant was not involved in the subject
kidnapping, he did not request instructions on any lesser offenses. When the court asked
appellant if he agreed to forego instructions on any lesser offenses, he said, “That’s fine.”
On the next court date, shortly before the parties rested, the trial judge met
with counsel outside the presence of the jury to formalize a few matters. Appellant was
also present during this meeting. At the outset, the judge stated, “Counts 1 and 2, the 209
contains a special, additional factor if great bodily injury was inflicted. The People also
allege a 12022.7, great bodily injury, sentencing enhancement, as to [the torture charge
in] count 4, which I understand they have a pending motion regarding.”
The judge’s description of the charges was not entirely accurate. As noted
above, section 209, subdivision (a) uses the term “bodily harm,” not “great bodily
injury,” which is the gravamen of the sentence enhancement provided in section 12022.7.
The court’s mistake turned out to be contagious because, as the meeting progressed, the
prosecutor also conflated those two terms, as shown below.
Continuing, the judge stated he “prepared jury instructions asking the jury
to make findings on both the substantive crime [of kidnapping for ransom] and then
whether or not that crime, if committed, great bodily injury was inflicted. [¶] The way
that the CALCRIMS read, it should be a special finding, but it’s not technically a
sentencing enhancement and the like.” When the judge asked defense counsel if he had
any objection to the court instructing the jury in that manner, he said no.

-- 10 of 26 --

11
With that, the prosecution moved to dismiss the section 12022.7 great
bodily injury enhancement allegation attached to count 4, the torture count. The judge
responded, “That request is granted and the court will then remove the great bodily injury
jury instruction from that [count] making sure that it’s still contained in counts 1 and 2[.]”
The following discussion then took place:
“[Prosecutor Brown]: . . . In regards to the second count involving Mary
. . ., if the court could take a look at the actual verdict that the People drafted in regards to
count 2, there is kind of an ‘or’ within [section 209, subdivision (a), of] the Penal Code.
[]There is gbi inflicted on the person [‘]or’ and our theory of liability is the ‘or’ part. [¶]
So I know the court just drafted a special instruction regarding that finding. It’s a little
different with regards to our theory on Mary[.]
“[Prosecutor Murphy]: We apologize for the lateness, Your Honor. We
were actually dealing with this up until last night.
“The Court: Noted. [¶] So your theory is intent to confine [in] a manner []
that exposes [Mary] to a substantial likelihood of death?
“[Prosecutor Murphy]: Yes.”
The judge asked defense counsel if he had any objection to the prosecution
pursuing that theory, and he said he did not. The judge then told the parties he would be
modifying the jury instruction as to count 2 to comport with that theory.
Alas, the instruction on the kidnapping for ransom charge in count 2
informed the jurors that if they found appellant guilty of that offense, they must decide
whether the prosecution proved the additional allegation that Mary was exposed to a
substantial likelihood of death. And the instruction on count 1 stated that if the jurors
found appellant guilty of kidnapping for ransom as alleged in that count, they must
decide whether the prosecution proved the additional allegation that Michael suffered
bodily harm.

-- 11 of 26 --

12
During closing arguments, the prosecutor argued there was ample evidence
to support those allegations, and defense counsel did not disagree. Defense counsel
instead took the position that appellant had nothing to do with the kidnapping plan that
led to Michael suffering bodily harm and Mary being exposed to a substantial likelihood
of death.
The jury rejected defense counsel’s argument. It not only found appellant
guilty of kidnapping for ransom, as alleged in counts 1 and 2, it also found true the
special allegations of bodily harm as to Michael and substantial likelihood of death as to
Mary. Appellant did not object to the inclusion of those allegations in the verdict forms,
nor did he object to lack of notice when the trial court sentenced him to LWOP on those
two counts. However, because neither the complaint nor the information included those
allegations, he now contends he was improperly convicted of a greater offense
(aggravated kidnapping for ransom) than that with which he was charged (simple
kidnapping for ransom) in violation of his due process rights. For reasons we now
explain, we disagree.
Due process is an integral component of our criminal justice system.
Among other things, it requires that an accused be afforded “‘fair notice of the charges
against him in order that he may have a reasonable opportunity properly to prepare a
defense and avoid unfair surprise at trial.’ [Citation.]” (People v. Toro (1989) 47 Cal.3d
966, 973, disapproved on other grounds in People v. Guiuan (1998) 18 Cal.4th 558, 568,
fn. 3.) This notice requirement extends to any “allegations that will be invoked to
increase the punishment for [the defendant’s] crimes. [Citation.]” (People v. Houston
(2012) 54 Cal.4th 1186, 1227 (Houston).)
As a corollary of these notice requirements, a defendant generally cannot be
convicted of a greater offense than that with which he was charged. (People v. Haskin
(1992) 4 Cal.App.4th 1434, 1438.) But, as respondent points out, and the Houston case
illustrates, this rule is subject to the forfeiture doctrine that governs criminal appeals, and

-- 12 of 26 --

13
there may be instances where the failure to object to the greater offense in the trial court
precludes the defendant from challenging his conviction for that offense on appeal.
Based on our reading of the Houston decision, however, we do not believe this is one of
those instances.
In Houston, the defendant was convicted of attempted premeditated
murder, which carries a sentence of life in prison, even though he was only charged with
attempted murder, which carries a maximum sentence of nine years. On appeal, he
argued his life sentence violated due process because, in contravention of the statutory
directive in section 664, the prosecution failed to allege the premeditation element in the
accusatory pleading. (Houston, supra, 54 Cal.4th at p. 1225.) However, the Supreme
Court ruled the defendant forfeited this claim by failing to raise it in the trial court. In so
ruling, the court relied on two key facts: 1) the trial judge notified the defendant before
the case was submitted to the jury that he could be sentenced to life in prison for
attempted premediated murder, and 2) the jury was properly instructed and expressly
found appellant acted with premeditation in attempting to murder his victims. (Id. at pp.
1227-1229.)
In one respect, our case is similar to Houston in that the jury was properly
instructed and expressly found true allegations that were not contained in the accusatory
pleading, namely, that during the kidnapping crimes alleged in counts 1 and 2, Michael
suffered bodily harm and Mary was exposed to a substantial likelihood of death. But,
unlike the situation in Houston, the trial judge here did not explain to appellant that a true
finding on those allegations would increase his punishment from life in prison to LWOP.
In fact, the judge suggested those allegations would not increase his
sentence at all when he told appellant the bodily harm allegation was “a special finding,
but it’s not technically a sentencing enhancement and the like.” While a person trained in
the arcana of California sentencing law would understand the judge was attempting to
draw a distinction between the statutory element of an offense and a separate sentencing

-- 13 of 26 --

14
enhancement provision, a layperson such as appellant might well construe the judge’s
comment simply to mean that a true finding on the bodily harm allegation would not
result in appellant’s sentence being enhanced or increased. And, at no point did anyone
say anything that was likely to disabuse appellant of such a notion.
The judge also misdescribed the bodily harm allegation as requiring great
bodily injury. This was not fatal in terms of providing appellant with notice of the
charges, but it could not have facilitated his understanding of the proceedings and the
complicated legal issues discussed therein. All things considered, we do not believe
appellant forfeited his right to challenge the inclusion of the special allegations
appurtenant to the kidnapping for ransom charges. (People v. Perez (2017) 18
Cal.App.5th 598, 614-618 [rejecting forfeiture claim where, as here, and unlike in
Houston, the defendant was not apprised of the increased punishment he would receive if
convicted of an uncharged greater offense]; People v. Arias (2010) 182 Cal.App.4th
1009, 1016-1021 [same].)
Turning to the merits, appellant contends his due process rights were
infringed because he was never formally charged with aggravated kidnapping for ransom,
nor was he ever advised he could be sentenced to LWOP if he were convicted of that
offense. In light of the flexible pleading rules applicable in our state we conclude the
contention fails.
It is well established that California’s “‘Penal Code permits accusatory
pleadings to be amended at any stage of the proceedings “for any defect or insufficiency”
(§ 1009), and bars reversal of a criminal judgment “by reason of any defect or
imperfection in matter of form which does not prejudice a substantial right of the
defendant upon the merits” (§ 960).’ [Citations.]” (People v. Sawyers (2017) 15
Cal.App.5th 713, 720.)
It is equally true that an “[o]ral amendment of an accusatory pleading may
suffice for statutory and due process purposes. [Citation.] ‘The informal amendment

-- 14 of 26 --

15
doctrine makes it clear that California law does not attach any talismanic significance to
the existence of a written information.’ [Citation.]” (People v. Pettie (2017) 16
Cal.App.5th 23, 82.) Under that doctrine, “a defendant may, by his conduct, impliedly
consent to amendment of a pleading. The ‘“proceedings in the trial court may constitute
an informal amendment of the accusatory pleading, when the defendant’s conduct or
circumstances created by him amount to an implied consent to the amendment.”’
[Citation.]” (Id. at pp. 720-721.)
For purposes of these rules, there is no requirement that any specific words
or express invocation be employed to effectuate a legally sufficient amendment of the
charges. (People v. Pettie, supra, 16 Cal.App.5th at p. 84.) Rather, due process will be
deemed satisfied if the record, considered as whole, shows the defendant received
adequate notice of the prosecution’s intent to charge him with a particular crime or
enhancement, and the defendant, by word or conduct, acquiesced to the charge. (Ibid.;
People v. Haskin, supra, 4 Cal.App.4th at p. 1438.)
Here, appellant had ample notice the prosecution wanted to charge him
with aggravated kidnapping for ransom. It’s true the information alleged simple
kidnapping for ransom, and that charge was never formally amended. However, during
the hearing on jury instructions, defense counsel did not object when the prosecution
submitted instructions on aggravated kidnapping for ransom. Instead, defense counsel
and appellant both agreed that instructions on lesser offenses were not required because
this was an all-or-nothing case; either appellant participated in the kidnapping, in which
case he was guilty of aggravated kidnapping for ransom, or he did not participate in the
kidnapping, in which case he was not guilty of anything.
Furthermore, on the next court date, the judge explained he was going to
instruct the jury on a special allegation pertaining to the kidnapping counts. In particular,
he said he was going to ask the jury to consider whether, in committing the alleged
kidnapping for ransom offenses, “great bodily injury” was inflicted. We recognize the

-- 15 of 26 --

16
circumstance elevating simple kidnapping for ransom to aggravated kidnapping for
ransom is “bodily harm,” not “great bodily injury.” (§ 209, subd. (a).) However, the two
concepts are clearly related, and there was no dispute the victim sustained serious, life-
threatening injuries in this case. Moreover, on the heels of this discussion, the prosecutor
informed the court that, in regard to Mary, the state intended to prove the alternative
circumstance needed to establish aggravated kidnapping for ransom, which is that the
victim was exposed to a substantial likelihood of death. Given everything that was
discussed at the hearing, there can be little doubt the prosecution was alleging both of the
circumstances required to transform the charge of simple kidnapping for ransom into the
aggravated form of that offense.
When the judge asked defense counsel if he objected to instructions or
verdict forms pertaining to those allegations, he said no. He also voiced no objection
when the prosecutor argued those allegations in closing argument or when the jury
returned true findings thereon. On this record, we are confident the conditions for an
informal amendment of the charges have been satisfied. Because appellant was apprised
of the prosecutor’s intent to prove the allegations required for aggravated kidnapping for
ransom, because he acquiesced to those allegations, and because they could have no
impact on the conduct of his mistaken identity defense. He was not deprived of his right
to due process.5
In reaching this conclusion, we are mindful appellant was never expressly
informed he could be sentenced to LWOP if the jury found the allegations true. In fact,
as discussed above, that is the primary reason we did not apply the forfeiture doctrine to
his due process claim. However, once appellant acquiesced to the prosecution’s desire to
include allegations of bodily harm and substantial likelihood of death with respect to the
5 In contending appellant had adequate notice he could be sentenced to LWOP for his part in the
kidnapping, the Attorney General draws our attention to two online news articles that allegedly mentioned this fact.
However, those articles are not included in the record on appeal, and there is no evidence appellant ever saw them,
so they have no bearing on our analysis.

-- 16 of 26 --

17
kidnapping charges, those charges were effectively amended to allege the crime of
aggravated kidnapping for ransom. Therefore, appellant was not convicted of a greater
offense than with which he was charged, in derogation of his due process rights. He was
instead convicted of an offense that was added by informal amendment to the existing
charges. That being the case, there was no need to inform appellant of the punishment
for that offense. (See People v. Mancebo (2002) 27 Cal.4th 735, 747 [due process is
satisfied if the defendant is fairly apprised of the specific factual allegations that will be
invoked to increase the punishment for his crimes]; People v. Robinson (2004) 122
Cal.App.4th 275, 282 [same].)
Accomplice Instructions
At trial, the parties agreed Shegerian was an accomplice by virtue of her
involvement in the case. Although the trial court instructed the jury the statements of an
accomplice must be corroborated, the instruction on prior statements did not reiterate that
requirement. Appellant fears this omission allowed the jury to convict him based on
Shegerian’s prior statements, even if they were not corroborated. We do not believe it is
reasonably likely the jury construed the court’s instructions in this fashion. They are not
cause for reversal.
Pursuant to CALCRIM No. 335, the jury was instructed, “If the charged
crimes were committed, then [Shegerian was an] accomplice[] to those crimes. You may
not convict the defendant of any crime based on the statement or testimony of an
accomplice alone. You may use the statement or testimony of an accomplice to convict
the defendant only if: [¶] One, the accomplice’s statement . . . or testimony is supported
by other evidence that you believe; [¶] Two, that supporting evidence is independent of
the accomplice’s statement or testimony and; [¶] Three, that supporting evidence tends to
connect the defendant to the commission of the crime.”
The court also gave CALCRIM No. 318, which told the jury, “If you decide
that a witness made . . . statements [before trial], you may use those statements in two

-- 17 of 26 --

18
ways: [¶] One, to evaluate whether the witness’s testimony in court is believable; [¶]
And two, as evidence that the information in those earlier statements [is] true.”
Appellant does not dispute the correctness of these instructions. His
argument is that the latter instruction on prior statements undermined the corroboration
requirement set forth in the former instruction. However, appellant did not ask the trial
judge to modify or clarify the instructions in order to remedy this purported error. He has
thus forfeited his right to challenge the instructions on appeal. (People v. Lee (2011) 51
Cal.4th 620, 638 [“A trial court has no sua sponte duty to revise or improve upon an
accurate statement of law without a request from counsel . . . and failure to request
clarification of an otherwise correct instruction forfeits the claim of error for purposes of
appeal”].)
Even if the argument had been preserved for appeal, it would not carry the
day. In determining whether instructional error has occurred, we presume jurors are
intelligent people who are capable of understanding and correlating all of the instructions
they are given. (People v. Hajek and Vo (2014) 58 Cal.4th 1144, 1246, abrogated on
other grounds by People v. Rangel (2016) 62 Cal.4th 1192, 1216; People v. Martin
(2000) 78 Cal.App.4th 1107, 1111.) Unless there is a reasonable likelihood the jury
construed the challenged instructions in a manner that violated the defendant’s rights, we
must uphold the court’s charge to the jury. (Ibid.; People v. Rogers (2006) 39 Cal.4th
826, 873.)
There was no such likelihood in this case because the challenged
instructions addressed two different issues. CALCRIM No. 318, the instruction on prior
statements, spoke to the permissible usage of Shegerian’s extrajudicial statements from a
general evidentiary standpoint. CALCRIM No. 335, the instruction on accomplice
testimony, addressed the specific requirements for using Shegerian’s statements to obtain
a conviction. So even if the jurors used Shegerian’s prior statements for their truth, as
they were allowed to do under CALCRIM No. 318, they would have known from

-- 18 of 26 --

19
CALCRIM No. 335 that they could not use those statements to convict unless they were
corroborated by other evidence. In other words, viewing the instructions in light of one
another, the jurors would have realized they could not convict appellant on the basis of
uncorroborated pretrial statements that were made by Shegerian. Appellant’s
instructional claim is without merit.
The Two-Week Trial Recess
During the trial, the judge recessed the proceedings for 14 days over the
course of the winter holidays. Appellant would have us believe this delay violated his
state and federal due process rights. We think not.
Appellant’s trial started in December 2017, roughly five years after he was
arrested. At a pretrial hearing on December 5, the prosecutor asked the judge what days
the court was going to be in session during the trial. After discussing the matter with
counsel off the record, the judge stated, “We discussed the scheduling and it looks as if
all parties are in agreement.” “We’ll be off [Tuesday, December] 26th through the 29th,
and that we will be telling the jury that we will be doing evidence [December] 12th
through the 22nd, and then we will be doing closing arguments probably like January
3rd.” No one objected to this scheduling framework.
Six days later, on December 11, the judge met with counsel to discuss voir
dire and the prospect of prescreening prospective jurors who might have time constraints
due to work or prepaid vacations. The judge surmised those constraints might not be a
problem for some of the prospective jurors because the court was going to be in recess
during the week of Christmas. He also stated he would be time-qualifying the jurors
through January 5, not including the time required for deliberations. Again, neither side
objected to this scheduling proposal.
As it turned out, the trial did not begin until Thursday, December 14. That
day, opening statements were given in the afternoon, and at the end of the session, the
judge ordered the jurors to return on Monday, December 18 for the start of testimony.

-- 19 of 26 --

20
After the jurors left the courtroom, the prosecutor informed the judge he was going to be
moving through his witnesses pretty quickly because he and defense had been able to
narrow the scope of certain testimony. In fact, throughout the trial, the parties worked
hard6 to streamline the case through the use of stipulations and other time-saving
measures.
Consequently, the prosecution’s case went faster than initially expected.
By Wednesday, December 20, the prosecution was down to its final witness, lead
detective Ryan Peters. Peters finished his testimony just before noon that day. At that
time, the judge asked the parties if there was any reason he should not excuse the jury
until January 3, 2018, and both sides answered no. The court then adjourned the trial
until that date. In so doing, the court admonished the jurors not to discuss the case during
the break or start forming opinions about the case until they began their deliberations.
When the trial resumed on January 3, the prosecution recalled Peters to the
stand for a few brief questions before resting its case. Then the defense rested without
presenting any evidence, and the parties made their closing arguments. The next day, the
jury was instructed and received the case. After deliberating for less than three hours, it
found appellant guilty as charged.
Appellant contends the 14-day recess that occurred from December 20 to
January 3 violated his fair trial rights because, having heard the bulk of the prosecution’s
evidence by the 20th, the jurors would not have been able to keep an open mind over the
course of the recess. However, of those 14 days, six were weekends or holidays and four
(December 26 thru the 29th) were taken off by agreement of the parties, leaving only
three and one-half unplanned recess days: The afternoon of the 20th, the 21st and 22nd,
and January 2. And when the court adjourned on the 20th, appellant did not object to the
court ordering a recess until January 3. He therefore waived his right to complain about
6 We’re impressed.

-- 20 of 26 --

21
the delay attributable to those three and one-half days. (People v. Ochoa (2001) 26
Cal.4th 398, 441 [absent an objection, the waiver rule bars claims arising from the
granting of a continuance during trial]; People v. Johnson (1993) 19 Cal.App.4th 778,
791-792 [by consenting thereto, the defendant waived his right to challenge a 17-day trial
recess that occurred over the winter holidays].)
Waiver aside, the two-week delay in appellant’s trial did not constitute an
abuse of discretion or violate appellant’s due process rights. (See generally Stroud v.
Superior Court (2000) 23 Cal.4th 952, 968 [the decision whether to order a midtrial
continuance rests within the sound discretion of the trial court]; People v. Esayian (2003)
112 Cal.App.4th 1031, 1042 [to overturn a conviction on due process grounds the
defendant bears a heavy burden to show the procedures used at trial were fundamentally
unfair].) Had the court not recessed the trial on December 20, there is a good chance the
jurors would have received the case before Christmas and felt rushed to deliver a verdict
before that holiday arrived, with the prosecution’s evidence fresh in their minds.7 As it
was, the jury was given ample time to process and evaluate the state’s case before being
asked to render a verdict. This prevented a rush to judgment based on temporary feelings
of passion, prejudice, or inconvenience. (See People v. Johnson, supra, 19 Cal.App.4th
at p. 791 [pointing out that forcing a jury to deliberate against a Christmas holiday
deadline is often not in the best interest of the defendant].)
And the fact the recess occurred before deliberations commenced
distinguishes this case from People v. Santamaria (1991) 229 Cal.App.3d 269, upon
which appellant relies. When a recess occurs during deliberations, as it did in
Santamaria, the jury may forget important aspects of the evidence or the court’s
instructions. (Id. at p. 282.) That danger was minimized here because the recess
occurred before the jury heard closing arguments, during which the evidence was
7 Appellant presented no defense.

-- 21 of 26 --

22
discussed at length, and before the jury received its instructions from the court, which
would clarify the analysis of that evidence. Considering all the pertinent circumstances,
we do not believe the recess is cause for reversal.8
Sentencing Claims
Lastly, appellant contends his consecutive life sentences for aggravated
mayhem and torture must be stayed under section 654 because those crimes were part and
parcel of the kidnapping offense for which he was separately punished. Once again, we
disagree.
Section 654 states, “An act or omission that is punishable in different ways
by different provisions of law shall be punished under the provision that provides for the
longest potential term of imprisonment, but in no case shall the act or omission be
punished under more than one provision.” (§ 654, subd. (a).) The statute “applies not
only where there was but one act in the ordinary sense, but also where there was a course
of conduct which violated more than one statute but nevertheless constituted an
indivisible transaction. [Citation.]” (People v. Perez (1979) 23 Cal.3d 545, 551;
In re Calvin S. (2016) 5 Cal.App.5th 522, 533.)
Whether a course of conduct is indivisible for purposes of section 654
depends on the intent and objective of the defendant. If all of his crimes were carried out
pursuant to a single objective, multiple punishment is prohibited. (People v. Latimer
(1993) 5 Cal.4th 1203, 1208.) However, if the defendant “entertained multiple criminal
objectives which were independent of and not merely incidental to each other, he may be
punished for independent violations committed in pursuit of each objective even though
the violations shared common acts or were parts of an otherwise indivisible course of
conduct.” (People v. Beamon (1973) 8 Cal.3d 625, 639.)
8 This case is also distinguishable from People v. Engleman (1981) 116 Cal.App.3d Supp. 14, in
which a three-week trial continuance was found to be “inherently prejudicial” because it undermined the jury’s
ability to fairly assess the evidence the defendant introduced at trial. (Id. at p. 21.) Since appellant did not present
any evidence in his defense, that was not a concern here.

-- 22 of 26 --

23
On appeal, we must remember the defendant’s intent and objective present
factual questions for the trial court, and its findings, whether express or implied, will be
upheld if they are supported by substantial evidence. (People v. Petronella (2013) 218
Cal.App.4th 945, 964; People v. Gaio (2000) 81 Cal.App.4th 919, 935.) Under the
substantial evidence test, “our review is limited to the determination of whether, upon
review of the entire record, there is substantial evidence of solid value, contradicted or
uncontradicted, which will support the trial court’s decision. In that regard, we give great
deference to the trial court and resolve all inferences and intendments in favor of the
judgment. Similarly, all conflicting evidence will be resolved in favor of the decision.”
(People v. Kurey (2001) 88 Cal.App.4th 840, 848-849, fns. omitted; accord, People v.
Petronella, supra, 218 Cal.App.4th at p. 964; People v. Martin (2005) 133 Cal.App.4th
776, 781.)
The crimes in this case involved a course of conduct that started with the
victims being kidnapped from their home in Newport Beach and ended two and a half
hours later when they were left out in the Mojave Desert. During that period of time, the
kidnappers tortured Michael repeatedly, and once they realized they were not going to get
the million dollars they were after, they cut off his penis, which was the basis for the
aggravated mayhem count. Appellant contends section 654 applies to the torture count
because the only reason he and his cohorts tortured Michael was to get him to tell them
where the million dollars was, which is why they kidnapped him in the first place.
At sentencing, the trial judge rejected this contention because, besides
torturing Michael in the back of the van to find out where the money was, the kidnappers
also poured bleach on Michael after they cut off his penis. The judge found the bleach
pouring amounted to a torturous act that was done not to get Michael to reveal the
location of the money, but simply to add to the pain and suffering he had already
endured. Indeed, the record indicates that one of the effects of pouring bleach on
Michael was that the kidnappers’ footprints became permanently seared into his skin.

-- 23 of 26 --

24
Relying on People v. Siko (1988) 45 Cal.3d 820, 825-826 and People v.
McCoy (2012) 208 Cal.App.4th 1333, 1337-1340, appellant contends the judge’s finding
regarding the purpose of the bleach pouring was foreclosed by the prosecutor’s closing
argument, in which he asserted the kidnappers doused Michael with bleach to destroy
their DNA. Those cases stand for the proposition that if there is a basis for identifying
the specific factual basis for a verdict, such as the charging documents, closing arguments
or verdict forms, the trial court may not rely on other acts to avoid application of section
654. (Ibid.) By parity of reasoning, appellant contends that because the prosecutor
referenced the destruction of DNA as a motive for the bleach pouring, the trial judge was
precluded from finding the act was done for any additional reason. However, the
prosecutor did not argue the destruction of DNA was the only reason the kidnappers
poured bleach on Michael and their cavalier disposal of his penis supports the idea they
could well have harbored baser motives at that time. Therefore, the judge was free to
find the act was done for some other reason as well, such as torture. (Ibid.) Suffice it to
say, there is substantial evidence in the record to support the judge’s finding the bleach
pouring had multiple motives and was not done for the sole purpose of destroying
evidence.
Still, appellant contends the judge’s reliance on the bleach-pouring incident
as the basis for not applying section 654 to the torture count was improper because the act
of pouring bleach on Michael did not amount to torture. Appellant does not dispute the
act caused Michael great bodily injury, the first element of torture. But he does dispute
the sufficiency of the evidence to support the second element, namely, that by pouring the
bleach, he and his cohorts intended to cause Michael to suffer cruel or extreme pain “for
the purpose of revenge, extortion, persuasion, or for any sadistic purpose[.]” (§ 206.)
In challenging this element, appellant again relies on the prosecutor’s claim
during closing argument that the kidnappers poured bleach on Michael to destroy their
DNA. To appellant’s way of thinking, this claim proves the destruction of evidence was

-- 24 of 26 --

25
the sole reason for the bleach. However, if the kidnappers were so transfixed on
destroying their DNA, they would have poured bleach on Mary too. Their failure to do
so supports the conclusion they had an additional reason for dousing Michael with
bleach, which was either to exact revenge on him for not telling them where the money
was and/or to simply make him suffer, which is the hallmark of sadism. Either way, the
bleach-pouring act was a sufficient basis for the trial judge’s torture theory. The judge
was not remiss for relying on that act in considering the applicability of section 654 in
connection with the kidnapping for ransom counts and the torture count. We discern no
basis for disturbing appellant’s life sentence for torturing Michael.
As for the aggravated mayhem count, appellant argues his sentence for that
offense should have been stayed pursuant to section 654 because it was based on the
same act – the severing of Michael’s penis – that supported the bodily harm element of
the aggravated kidnapping for ransom charge in count 1. In so arguing, appellant admits
there were other acts that could have supported the bodily harm element, such as the
blowtorching or the tasering. However, he insists that doesn’t matter because the
prosecutor “specifically elected” not to rely on those acts in urging the jury to convict
him on count 1.
The record does not support appellant’s position. While the prosecutor
alluded to the kidnappers’ act of severing Michael’s penis while discussing the bodily
harm element of the aggravated kidnapping for ransom charge, he did not tell the jury to
ignore all of the other bodily harm Michael suffered in deciding whether appellant was
guilty of that offense. To the contrary, the prosecutor urged the jury to consider
everything Michael went through and all the injuries he received. Therefore, it cannot be
said that the prosecutor elected to base the bodily harm allegation solely on the
dismembering of Michael’s penis.
Because the prosecutor did not elect to prove the bodily harm allegation on
such a limited basis, and because there is nothing else in the record that reveals which act

-- 25 of 26 --

26
or acts the jury relied on in finding that allegation to be true, the trial judge was free to
consider all of the evidence adduced at trial in determining whether section 654 applied
to appellant’s sentences for aggravated mayhem and aggravated kidnapping for ransom.
(People v. Siko, supra, 45 Cal.3d at pp. 825–826; People v. McCoy, supra, 208
Cal.App.4th at p. 1340.) Having reviewed the entire record ourselves, we are convinced
there is substantial evidence to support the trial court’s implied finding those two
offenses were based on different acts and committed for different reasons. Therefore,
appellant is not entitled to relief under section 654.
DISPOSITION
The judgment is affirmed.
BEDSWORTH, ACTING P. J.
WE CONCUR:
IKOLA, J.
DUNNING, J.*
*Retired judge of the Orange County Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.

-- 26 of 26 --