People v. Hudson

Opinion

SIMS, J.

A jury convicted defendant Ty Hudson of one count of kidnapping (Pen. Code, § 207, subd. (a))

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and two counts of false imprisonment (§ 236). On appeal, defendant contends that (1) insufficient evidence of asportation supported the kidnapping conviction, (2) one count of false imprisonment should be reversed because it is a lesser included offense of kidnapping, (3) even if not a lesser included offense of kidnapping, section 654 prohibits a separate sentence for the false imprisonment conviction, (4) the trial court erred by failing to give a unanimity instruction, (5) Judicial Council of California Criminal Jury Instructions (2008) CALCRIM No. 318 improperly lessened the prosecution’s burden of proof, and (6) the trial

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court’s imposition of the upper term for kidnapping violated his right to jury trial as articulated in

Cunningham v. California

(2007) 549 U.S. 270 [166 L.Ed.2d 856, 127 S.Ct. 856].

In the published portion of the opinion, we reject defendant’s attack on CALCRIM No. 318. In the unpublished portion of the opinion, we reject defendant’s other contentions of error. Accordingly, we shall affirm the judgment.

FACTUAL AND PROCEDURAL HISTORY*

DISCUSSION

I-IV

*

V

CALCRIM NO. 318

As given by the trial court, CALCRIM No. 318 instructed: “You have heard evidence of statements that a witness made before the trial. If you decide that the witness made those statements, you may use those statements in two 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.”