Opinion
ANDERSON, J.* This is a consolidated appeal from judgments rendered after two jury trials at which defendant, Dana Xavier Cole (hereafter appellant), was found guilty of several serious crimes charged in three informations. These convictions involve two separate incidents—a kidnap and rapes in January and several burglaries, assault and attempted kidnaping in September.
I
The first trial involved those offenses arising out of the later September incident detailed in information Nos. CR 9922 and CR 9924, which charged appellant with burglary, assault with a deadly weapon, attempted kidnaping and use of a deadly weapon in the commission of a felony.
On September 22, 1983, at approximately 5:30 a.m., appellant burglarized the Stoffers’ house; his palm print was found on the kitchen windowsill, and a watch stolen from the Stoffers’ house was later found in his possession. Appellant later admitted to two strangers the burglarizing of the Stoffers’ residence and stealing a watch.
About an hour later appellant walked into the bedroom of Angela Schaper, age 17, and put a knife to her neck. Miss Schaper positively identified appellant as her assailant. Appellant held the knife to Miss Schaper’s back [47]and led her from her bedroom downstairs, through the dining room and kitchen, directly to the front door. After appellant opened the front door, he heard Angela’s mother upstairs; thereupon he released Miss Schaper and fled.
Shortly thereafter, appellant knocked on the front door of Mrs. Peterson’s apartment, which is located in the same complex as the Schapers’. A knife stolen from the Staffers was later found just outside the front door of this apartment, where appellant had earlier been spotted by a police officer.
For these offenses appellant was convicted of two counts of burglary (Pen. Code,1 § 459), assault with a deadly weapon (§ 245, subd. (a)), attempted kidnaping (§§ 664, 207), and use of a deadly weapon (§ 12022, subd. (b)). He was sentenced to the upper term of six years for burglary; one year for assault with a deadly weapon, to run consecutively; ten months for attempted kidnaping, to run concurrently; one year and four months for the other burglary conviction, to run consecutively; plus a one-year enhancement for use of a deadly weapon.
A. Sufficient Evidence Supports Appellant’s Conviction of Attempted Kidnaping
Appellant contends that there was insufficient evidence to convict him of the attempted kidnaping of Angela. We disagree.
When the sufficiency of the evidence is challenged on appeal, the court must review the whole record in the light most favorable to the judgment to determine whether it contains substantial evidence—evidence that is credible and of solid value—from which a rational trier of fact could have found the defendant guilty beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 578 [162 Cal.Rptr. 431, 606 P.2d 738, 16 A.L.R.4th 1255]; Jackson v. Virginia (1979) 443 U.S. 307, 317-320 [61 L.Ed.2d 560, 572-574, 99 S.Ct. 2781].)
Section 207, subdivision (a), states that “Every person who forcibly steals, takes, or arrests any person in this state, and carries the person into another country, state, or county, or into another part of the same county, is guilty of kidnaping.” Section 664 states that “Every person who attempts to commit any crime, but fails, or is prevented or intercepted in the perpetration thereof, is punishable . . . .”
An attempt to commit a crime consists of (1) the specific intent to commit the crime, and (2) a direct but ineffectual act done toward its com[48]mission. (People v. Anderson (1979) 97 Cal.App.3d 419, 425 [158 Cal.Rptr. 727]; People v. Buffum (1953) 40 Cal.2d 709, 718 [256 P.2d 317].)
1. There was substantial evidence by which the jury reasonably concluded that appellant had the specific intent to kidnap Miss Shaper.
Specific intent may be, and usually must be, inferred from circumstantial evidence. (People v. Pimental (1970) 6 Cal.App.3d 729, 734 [86 Cal.Rptr. 169].) “When a specific intent is an element of the offense it presents a question of fact which must be proved like any other fact in the case. It is nonetheless a question of fact though it cannot be proved by direct and positive evidence. All the circumstances surrounding the act furnish the evidence from which the presence or absence of the specific intent may be inferred by the jury; and no presumption of law can ever arise that will decide it.” (People v. Maciel (1925) 71 Cal.App. 213, 218-219 [234 P. 877].)
The trial court herein explicitly instructed the jury that it must find that appellant had the specific intent to commit the crime of kidnaping to convict him of attempted kidnaping. The trial court also gave CALJIC No. 2.01 on the sufficiency of circumstantial evidence and the reasonable interpretations that may be drawn therefrom.
Appellant contends that there are several different inferences that may be drawn from his act of forcing Miss Schaper down the stairs with him at knife point. However, simply because there are several reasonable interpretations of appellant’s act does not mean that the jury did not reasonably reject the other possible interpretations and determine from the evidence that appellant had the specific intent to kidnap Miss Schaper.
To justify a conviction on circumstantial evidence,2 the facts and circumstances must not only be entirely consistent with the theory of guilt but must be inconsistent with any other reasonable conclusion. (CALJIC No. 2.01 (4th ed. 1979).) However, this rule is primarily for the guidance of the trier of fact, not for the reviewing court. “‘The rule . . . does no more than to instruct the jury that if a reasonable doubt is created in their minds for any reason they must acquit the defendant. But where the jury rejects the hypothesis pointing to innocence by its verdict, and there is evidence to support the implied finding of guilt as the more reasonable of the two hypotheses, this court is bound by the finding of the jury.’ [Cita[49]tions.] Thus, even though the appellate court may itself believe that the circumstantial evidence might be reasonably reconciled with the defendant’s innocence, this alone does not warrant interference with the determination of the trier of fact. [Citations.] Whether the evidence presented at trial is direct or circumstantial, under Jackson and Johnson the relevant inquiry on appeal remains whether any reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt.” (People v. Towler (1982) 31 Cal.3d 105, 118 [181 Cal.Rptr. 391, 641 P.2d 1253].)
When appellant entered the Schapers’ residence, he-had already just committed one burglary gaining entry through a window and was carrying a knife he stole in that burglary—an unequivocal act of premeditation and preparation. He then somehow gained entry to the Schaper residence and first went into Mrs. Schaper’s room, but it was too dark in the room for her to see his face. Instead of simply running out the front door, he went into her daughter Angela’s bedroom. He thereby risked exposing his identity to Angela, who was in fact able to see his face through the mirror on the wall of her bedroom. After crossing over to where she was seated, covering her mouth with his hand and putting a knife to her neck, he commanded her to remain silent and told her “let’s go.” He then led her down the stairs with a knife at her back. He walked her through the dining room and kitchen directly to the front door. After hearing this evidence, the jury reasonably concluded that appellant had the specific intent to kidnap Miss Schaper.
2. There was substantial evidence by which the jury reasonably concluded that the kidnaping was prevented by extraneous circumstances.
Mere preparation to commit a crime does not constitute an attempt to commit it. (People v. Berger (1955) 131 Cal.App.2d 127, 130 [280 P.2d 136].) There must be some appreciable fragment of the crime committed, and it must be in such progress that it will be consummated unless interrupted by extraneous circumstances. (People v. Staples (1970) 6 Cal.App.3d 61, 65-66 [85 Cal.Rptr. 589]; People v. Buffum, supra, 40 Cal.2d 709.) In People v. Dillon (1983) 34 Cal.3d 441 [194 Cal.Rptr. 390, 668 P.2d 697], the California Supreme Court explained that the requirement of “an appreciable fragment of the crime” was simply a restatement of the requirement of an overt act directed towards immediate consummation. The court stated, “If it is not clear from a suspect’s acts what he intends to do, an observer cannot reasonably conclude that a crime will be committed; but when the acts are such that any rational person would believe a crime is about to be consummated absent an intervening force, the attempt is under way . . . .” (Id., at p. 455.)
The record herein reveals that the jury reasonably believed that appellant would have completed the kidnap of Miss Schaper if he had not [50]heard her mother upstairs. Appellant forced Miss Schaper directly to the front door. This constituted a direct, unequivocal act toward kidnaping her. However, he was interrupted by Mrs. Schaper’s footsteps upstairs. Miss Schaper testified that she heard the bathroom door open and then appellant left without her.
3. The actual distance Miss Shaper was moved is irrelevant since the charge was attempted kidnaping.
Appellant’s reliance on the Daniels’ (People v. Daniels (1969) 71 Cal.2d 1119 [80 Cal.Rptr. 897, 459 P.2d 225, 43 A.L.R.3d 677]) line of cases is misplaced. The California Supreme Court has held that the Daniels rule, which sets forth the elements of kidnaping for robbery under section 209 (aggravated kidnaping), does not apply to a conviction of kidnaping under section 207. (People v. Brown (1974) 11 Cal.3d 784, 787 [114 Cal.Rptr. 426, 523 P.2d 226]; People v. Stanworth (1974) 11 Cal.3d 588, 596 [114 Cal.Rptr. 250, 522 P.2d 1058].)
Appellant also relies on several section 207 kidnaping cases for support. It is true that the victim’s movements must be more than slight (Cotton v. Superior Court (1961) 56 Cal.2d 459 [15 Cal.Rptr. 65, 364 P.2d 241] or “trivial” (People v. Rocco (1971) 21 Cal.App.3d 96, 105 [98 Cal.Rptr. 365]) to constitute the crime of simple kidnaping; they must be substantial in character (People v. Brown, supra, 11 Cal.3d 784, 788; People v. Stanworth, supra, 11 Cal.3d 588, 601), and movement within a single room is not asportation “ ‘ “into another part of the same county” ’ within the meaning of section 207.” (People v. Thornton (1974) 11 Cal.3d 738, 767 [114 Cal.Rptr. 467, 523 P.2d 267], disapproved on other grounds in People v. Flannel (1979) 25 Cal.3d 668, 684, fn. 12 [160 Cal.Rptr. 84, 603 P.2d 1].)
However, since the crime herein is attempted kidnaping, the distance Miss Schaper was moved is immaterial—asportation simply is not an element of the offense. People v. Fields (1976) 56 Cal.App.3d 954 [129 Cal.Rptr. 24] involved an attempt to force a young girl on the street into a car, which attempt was abandoned by the defendant when she screamed. The court therein affirmed a conviction of attempted kidnaping even though the victim was never physically moved.
In the present case, the district attorney explained to the jury that the prosecution was not trying to prove that appellant moved Miss Schaper a great distance, but only that he was attempting to move her a great distance.
There was substantial evidence herein by which the jury reasonably concluded that appellant committed the crime of attempted kidnaping.
[51]B. Appellant’s Miranda Rights Were Not Violated
Immediately after appellant had left the Schapers’ residence after attempting to kidnap Angela, Mrs. Schaper called the police and reported Angela’s ordeal and that appellant was armed with a knife. Shortly thereafter, appellant jumped into the car of Hal Hodges, a stranger, and demanded a ride. Appellant confessed to Hodges that he had just broken into an apartment and had escaped. After taking appellant to and leaving him at a green house on Willow Street, Hodges sought and found an officer and directed him to where he had left the appellant.
Meanwhile, several officers had responded to the burglary call and were searching the Olive Tree Apartments’ area for appellant. Officer Lincoln spotted appellant standing at the door of one of these apartments (the Peterson apartment where the Stoffer knife was later found). Officer Lincoln asked him to step away from the door and get into the patrol car, to which appellant agreed. However, when Lincoln was distracted by the police radio, appellant pushed open the car door and fled. Officer Lincoln then chased him into the parking lot and broadcast his description over the police radio.
Several officers then started an apartment-to-apartment search for appellant. People began calling the police to report somebody in their backyards and on their roofs. Nevertheless appellant made good his escape from the complex.
Thereafter, Officer Lincoln was informed of the location of appellant’s car, Officer Waller disabled that car, and then waited for appellant’s return. When appellant’s friend, Tim Hoffman, approached the car, he was directed by Officer Waller to drive to Plaza Circle, where Hoffman had planned to meet appellant—but with Officer Waller hiding in the back seat.
At the rendezvous spot when appellant approached his car and as he was about to open the door, Officer Waller came up from the back seat and the chase was on. After an extended chase involving many officers, the appellant reversed directions and ran back right into Officer Waller who stopped him.
Officer Waller laid appellant in a prone position, started to pat search him, had him come up on his knees and continue to pat-search him. Although he had information from the Schapers that appellant was armed, he found no weapons. He then asked appellant where the knife was and appellant told him that he had already gotten rid of it.
[52]Appellant contends that his statement to the officer should not have been received in evidence since it was taken in violation of Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694, 86 S.Ct. 1602, 10 A.L.R.3d 974]. He does not contend that his statement was actually compelled by police conduct which overcame his will to resist. (See Beckwith v. United States (1976) 425 U.S. 341, 347-348 [48 L.Ed.2d 1, 8, 96 S.Ct. 1612].) Thus, the only issue before us is whether the officer was justified in failing to advise appellant of his Miranda rights before asking any questions.
In a case strikingly similar on its facts, the United States Supreme Court has recently held that there is a “public safety” exception to the requirement that Miranda warnings be given before a suspect’s answers may be admitted in evidence. In New York v. Quarles (1984) — U.S. —, — [81 L.Ed.2d 550, 558, 104 S.Ct. 2626, 2633], a woman approached two police officers and told them that she had just been raped, described her assailant, and told them that he had just entered a nearby supermarket carrying a gun. When the police caught the defendant, they discovered that he was wearing an empty shoulder holster. After handcuffing him, they asked him where the gun was and defendant nodded toward some empty cartons and responded that “the gun is over there.” Defendant was then formally arrested and advised of his Miranda rights.
In reversing the Court of Appeal’s exclusion of defendant’s initial statement and the gun as an admission and product thereof in violation of Miranda, the Supreme Court held that “the need for answers to questions in a situation posing a threat to the public safety outweighs the need for the prophylactic rule protecting the Fifth Amendment privilege against self-incrimination.” (New York v. Quarles, supra, — U.S. at p. — [81 L.Ed.2d at p. 558, 104 S.Ct. at p. 2633].)
Similarly, Officer Waller’s question to appellant concerning the whereabouts of the knife was reasonably prompted by a concern for public safety. The officer had information that appellant had a weapon. He was therefore confronted with the immediate necessity of ascertaining where the knife was. Until the knife was discovered, it posed a threat to public safety.
Since the circumstances herein presented a genuine danger to the public safety, Officer Waller was justified in failing to give appellant his Miranda warnings. Appellant’s answer was properly admitted into evidence.
C. Sentencing Error
Appellant contends that it was error for the trial court to give him concurrent sentences for attempted kidnaping and assault with a deadly weapon. We agree.
[53]Section 654 prohibits multiple punishment for multiple crimes which arise out of a single act or an indivisible course of conduct. (People v. Miller (1977) 18 Cal.3d 873, 885 [135 Cal.Rptr. 654, 558 P.2d 552].) Herein the trial court recognized that the attempted kidnaping and assault with a deadly weapon charges were covered by section 654 when he stated, “The holding of the girl and moving her and the holding of the knife to her—were, in effect—can be treated as part and parcel of the same thing.” However, under section 654, concurrent sentences for such offenses are prohibited, since they may have collateral consequences amounting to increased punishment. (People v. Avila (1982) 138 Cal.App.3d 873, 878 [188 P.2d 754]; People v. Niles (1964) 227 Cal.App.2d 749 [39 Cal.Rptr. 11].)
When confronted with offenses within the ambit of section 654, the procedure is to stay the execution of sentence on all but one of the offenses subject to section 654. (People v. Avila, supra, 138 Cal.App.3d 873, 879.) No incremental punishment can flow from the stayed sentence since section 654 prohibits punishment for a stayed sentence. (People v. Niles, supra, 227 Cal.App.2d 749.)
Appellant contends that this court must stay the lesser sentence, the attempted kidnaping, as well as the enhancement to it. An enhancement must be stayed where the sentence on the count to which it is added is required to be stayed. (People v. Guilford (1984) 151 Cal.App.3d 406 [198 Cal.Rptr. 700].) Appellant relies on People v. Aho (1984) 152 Cal.App.3d 658 [199 Cal.Rptr. 671] for support. However, Aho does not hold that the court must stay the lesser sentence. Although the usual practice is to impose sentence on the offense with the most serious punishment, the trial court does have discretion to sentence on a less serious offense. (People v. Avila, supra, 138 Cal.App.3d 873, 879.) The court may choose to do so here and impose the enhancement as well.
The judgments are affirmed in all other particulars.
II*
The judgments on all three informations are affirmed in all particulars, except that the judgment imposing concurrent sentences for assault with a deadly weapon (count III) and attempted kidnaping (count IV) in information No. 9924 is reversed. The case is remanded for the trial court to ex[54]ercise its discretion in staying sentence on one of the offense consistent with the views expressed herein.
Barry-Deal, J., concurred.
Assigned by the Chairperson of the Judicial Council.
Unless otherwise indicated, all further statutory references are to the Penal Code.
Herein appellant’s specific intent to kidnap Miss Schaper was necessarily proven by circumstantial evidence.
Part II of this opinion is not certified for publication. (See fn., ante, at p. 41.)