A jury convicted appellant Cruz Brambila Acevedo of sexual penetration by a foreign object with force and violence (Pen. Code, § 289, subd. (a)(1); count 1),1 torture (§ 206; count 2), kidnapping to commit another crime (§ 209, subd. (b)(1); count 3), kidnapping (§ 207, subd. (a); count 4), and corporal injury to a former cohabitant (§ 273.5, subd. (a); count 5) and found numerous special allegations to be true. The trial court sentenced appellant to 25 years to life for count 1, plus two consecutive life terms for counts 2 and 3. On appeal, appellant contends: (1) the trial court prejudicially erred in instructing the jury on voluntary intoxication; and (2) his conviction of kidnapping must be reversed because it is a lesser included offense of kidnapping to commit another crime, and he cannot be convicted of both. We agree with appellant’s second contention, which respondent concedes, and will remand the matter to the trial court to strike appellant’s conviction of kidnapping in count 4. In all other respects, the judgment is affirmed.
In August 2007, the victim, Vanessa C., was appellant’s girlfriend. She was not living with him at the time of the incident in this case but had been staying with him for a few nights at his mother’s house, along with her seven-year-old son. Vanessa had known appellant for two to three years and they had an “off and on” relationship. In 2006, Vanessa and appellant lived together in Tijuana for three or four months. When they returned to the United States, they lived together at appellant’s mother’s house in Porterville. They separated in January 2007, but started seeing each other again in August 2007.
On the night in question, appellant and his friend Michael White came to Vanessa’s AA meeting in Porterville to look in on her. When the meeting ended around 9:30 p.m., and they had walked outside, appellant grabbed Vanessa by the hand and pushed her inside his van. Inside the van, appellant slapped Vanessa and called her a “[f]ucking bitch.”2
After stopping first at his cousin’s house and then dropping his friend off, appellant drove Vanessa to a grapevine field. During the drive, appellant hit and cussed at Vanessa. He told her that she was going to get it, that he was going to hurt her, and that he was going to take her somewhere no one would find her.
After appellant pulled over and stopped on the side of the road, he started hitting, punching, and kicking Vanessa inside the van. Vanessa jumped out of the window and tried to run away, but appellant caught up with her, pulled her hair, and dragged her back to the van. Back inside the van, appellant choked Vanessa until she lost consciousness.
When Vanessa regained consciousness, appellant was dragging her by the hair through the grapevine field. Vanessa stood up and appellant forced her to walk to the back of the field, hitting her in the back with sticks from the grapevines.
When they reached the end of the field, appellant hit Vanessa forcefully on the side of the face with a grapevine stick. Vanessa testified: “I just remember seeing like red through this eye. Because my skin was hanging off the side of my face.” The resulting injury was a deep laceration that ran from her left eyebrow almost to her cheek.
After hitting her in the face, appellant told Vanessa to get naked. As Vanessa removed her clothes, appellant continued to hit her. When she was naked, appellant pushed and kicked her into a plum field, where he used her clothes to tie her to a plum tree. Appellant tied her with her back and head against the tree and tied her arms to branches. Appellant used her bra to tie up one of her hands.
After tying Vanessa to the tree, appellant started kicking her in the vagina. Vanessa testified: “He was cussing me and telling me things like you fucking bitch. And watch, you are going to die. You are going to regret it. [¶] He told me oh, you like to fuck, so you’ll see what’s going to happen.”
Appellant then picked up a tree branch and inserted the tip into Vanessa’s rectum, causing her pain. Vanessa was unable to scream because appellant had tied a shirt around her mouth. Appellant yelled things like “you fucking bitch” and “you are not going to fucking play on me.” He then punched her in the face, before walking away.
After he walked away, appellant left Vanessa tied to the tree for approximately 20 minutes. During that time, Vanessa used her mouth to loosen the shirt that was in it. Appellant noticed this when he returned and asked, “[Y]ou trying to get away?” He then called Vanessa a “fucking bitch” and kicked her in the vagina again.
Appellant untied Vanessa and directed her to put her clothes back on. They then walked out of the plum field. Appellant continued to hit, punch, and kick Vanessa as they were walking. When they reached a pile of dirt, appellant pushed Vanessa down to the ground and put her face in the dirt. She was unable to breathe because there was dirt in her mouth.
As they started to walk back to the van, appellant continued to kick and hit Vanessa with grapevine sticks. Before they reached the van, appellant took Vanessa back to the dirt pile and hit her with a stick. They then walked to the van. Vanessa walked in front of appellant and he hit her the whole time.
Appellant drove Vanessa back to his mother’s house, where he told her to take a shower. Vanessa obeyed and “tried to clean all the dirt and everything.”
After she took a shower, Vanessa told appellant she needed to go to the hospital because her head was bleeding and hurting badly. Appellant instructed Vanessa to tell his mother that she fell in the shower and hit her head. Vanessa complied with appellant’s instruction.
Appellant’s mother and uncle drove Vanessa to the hospital and appellant stayed behind. Before they left for the hospital, appellant threatened to hurt Vanessa’s mother and children if she told people what really happened.
Once she was at the hospital, and in a separate room from appellant’s mother, Vanessa told hospital staff about appellant’s attack, and the police investigation commenced. Vanessa’s police statement was consistent with her trial testimony.
After her initial treatment at the hospital, Vanessa was taken to a SART3 nurse for a medical examination. The nurse testified that Vanessa appeared to be in a lot of pain. She could hardly walk and the nurse had to help her get up on the examination table. The nurse further testified that the examination particularly stood out in her memory because of Vanessa’s large number of injuries. The nurse found over 25 injuries on her body and an additional four to six injuries to her genital area.
The nurse testified that Vanessa’s injuries were consistent with her description of appellant’s attack. In addition to the laceration on her left eyebrow, which appeared to have been stitched up at the emergency hospital, Vanessa had extensive abrasions and bruises on various parts of her body, including her back, buttocks, chest, and inner thighs. On Vanessa’s back, the nurse observed a red “patterned injury” that resembled the bottom of a shoe. Vanessa also had redness and swelling in the vaginal area, and a laceration on the anal fold near the rectum.
The police investigation of the crime scene also uncovered evidence consistent with Vanessa’s description of events. Among other things, police found a bra attached to a tree and a mound of dirt with an impression consistent with a face, apparent drops of blood, and shoes tracks and foot impressions that looked “as if there was a struggle or milling around.”
A search of appellant’s van uncovered a pair of bloody socks underneath one of the seats. Shoe prints and dust were also found on the dashboard and glove compartment area.
Police located appellant on the afternoon after the attack, but he fled over a fence. Appellant was eventually located in May or June of 2008.
Uncharged prior acts
Tahnee C. testified concerning an incident that occurred in May 2005. Tahnee was sitting on a picnic table, trying to call her mother to come pick her up, when appellant got mad at her for calling her mother. Appellant pushed the picnic table over on top of her, so that she was lying partially underneath it.
After pushing the table over on her, appellant yelled at Tahnee to stand up. When she stood up, he started spraying her with the water hose he had been using to wash his car. Appellant then told her to go inside the house because his brother was coming and he did not want him to see her.
Tahnee went inside the house and was in the bedroom crying, when appellant came in and made her lie on the bed on her stomach, with her head leaning over the bed. Appellant tied Tahnee’s hands behind her back with an Ace bandage. He then pushed her onto the floor and started slapping, hitting, and choking her.
Tahnee further testified:
“He made me go to into the living room. I had to crawl, you know, using my knees. Plus, he was pulling me by my hair. I was in the living room because he had earlier threw food on the ground, so I was in there rolling on the food. He just continued kicking me, hitting me, pulling me by my hair. Telling me things like I can kill you[.] I can go back to Mexico and they can never do anything to me. They’ll never find me.”
Appellant finally stopped and went to open the front door. As he went outside, appellant was laughing at Tahnee.
Tahnee reported the incident to the police the following day, after speaking with her mother. The police took photographs of her injuries, which she described as including a busted blood vessel in her eye, a busted lip, and bruises all over her body. She also had bumps on her head, which were not visible.
Vanessa testified generally that “every other day [appellant] would hit me, beat me.” She also testified about two specific incidents. In 2006, when they were living in Tijuana, appellant hit her in the head with a crowbar and she went to the hospital to get stitches in her head. In January 2007, when she was living with appellant in Porterville, appellant hit her with a metal object, but she did not seek medical treatment.
Appellant testified that he remembered specifically and with a clear mind what happened on the night in question. Throughout his testimony, appellant denied engaging in any of the coercive or abusive acts described by Vanessa (i.e., choking, hitting, kicking, etc.).
According to appellant’s version of events, he did not force Vanessa into the van after the AA meeting or slap her. Although they did argue in the van, Vanessa instigated the argument. She accused appellant of being with his ex-girlfriend Brenda, over whom they had also argued the previous day. Appellant got mad and hit the back of Vanessa’s headrest, but he did not make contact with her face.
After appellant stopped at his cousin’s house and dropped his friend off, the argument he was having with Vanessa de-escalated. Vanessa began to calm him down. Appellant explained: “Every time I’m mad, for whatever reason, she gives me a chill pill. What that is she kisses me and supposedly that makes everything better. That’s my chill pill.”
At this point, Vanessa wanted, and appellant “kind of” wanted, to have sex. Because he did not want to go back to his mother’s house, where there was no privacy, appellant continued to drive and pulled over a few blocks down from the house.
Appellant and Vanessa went into the field and tried a number of times to have sex because appellant wanted to prove to her that he had not been with Brenda that day. However, appellant was unable to perform because he had been “up for a couple of days already” on methamphetamine. When asked about the effect methamphetamine had on him, appellant testified:
“First it’s okay. But after the second and third day, I can’t do nothing. [¶] But I still tried with her. I mean, I tried. We tried a number — a lot of times in the field. I was in the field with her, but I didn’t hit her. I didn’t strike her. I didn’t do this to her. I didn’t stick nothing up her.”
Appellant testified that both he and Vanessa took all their clothes off, and that he tied her to a tree with her bra because she asked him to. They tried to have sex at the tree but nothing happened.
Appellant and Vanessa also tried unsuccessfully to have sex lying on the ground. Appellant testified that Vanessa was lying on the ground and he was on top of her “[w]orking hard.”
Appellant testified that he was “real rough” with Vanessa when they were trying to have sex, “[b]ut we were always rough when we were on methamphetamine.” Appellant added, however, that he was not rough “in the way of hitting her and stuff like that.”
When asked about the injuries described in the SART nurse’s testimony in relation to what happened at the tree, appellant testified:
“Well, she let me tie her up and she was against the tree. And there was — I don’t know if you can see the picture right now, but there’s a lot of branches. A lot of branches. [¶] I even — they were even hitting me, the branches, when we were going back and forward. And hard.”
After appellant was unable to have sex with Vanessa, she became angry and again accused him of having been with Brenda and said this was the reason he was not able to do anything. When they were back in the van, Vanessa started “going crazy” and was hitting and kicking the dashboard and glove compartment area. Appellant grabbed her legs and put them down and told her to “kick back.”
After they drove home, Vanessa went to take a shower. Appellant testified:
“And when she came out, when she came out she heard me on the phone saying I love you. And she told me oh, you love? Who are you talking to? [¶] And I didn’t say nothing. I just hanged up. But she heard me say I love you, though. And she goes you love her. All right. You watch, Mother F. You see what happened.”
After this exchange, Vanessa told appellant she needed to go to the hospital. When appellant asked why, she showed him a bleeding injury on her head, which she had been covering. Vanessa said she fell in the shower and cracked her head open.
Appellant claimed that Vanessa had not been bleeding earlier when he brought her home in the van. According to appellant, the bloody socks that police found in his van were the socks Vanessa was wearing after she came out of the shower, and that she put them in his van when she thought they were going to be taking the van to the hospital.
Appellant testified that after his mother called him from the hospital and told him Vanessa was accusing him of beating her, he walked to meet some friends and got high on methamphetamine. When the police later located appellant at the abandoned house where he and a friend were smoking methamphetamine, appellant did not know they were police. He ran away because he thought they were “gang-bangers” with whom his friend had been having problems.
On cross-examination, appellant testified that when he went to Vanessa’s AA meeting he was “a little bit drunk” and “[a] little bit high.” When appellant was asked the last time he took methamphetamine prior to the incident, he testified, “[p]robably early that day.” Appellant repeated that he had already been up for three days.
On re-direct examination, appellant testified that when he is up for two or three days smoking methamphetamine, the methamphetamine makes him want to have sex, but he is unable to do it.
In his direct examination testimony, appellant also described his past use of methamphetamine in his relationship with Vanessa. They used methamphetamine a lot together during the period when they lived together in Tijuana, where the drug was easy to obtain. Appellant testified that when they used methamphetamine, sex was “[r]eal different.”
Appellant denied that he hit Vanessa with a crowbar when they were living in Tijuana. According to appellant, her injury was related to her methamphetamine use. They were both high, when Vanessa tripped and hit her head on a metal part of a bed and had to be taken to the hospital.
Appellant also denied that he hit Tahnee. Rather, the “[s]ame thing happened with her.” He explained: “Well, I mean she said I did something, but it wasn’t true.”
Appellant’s mother, Maria Acevedo, testified that Vanessa asked her if she could take her to the hospital. Vanessa told Acevedo that she fell in the bathroom. Once they were at the hospital, Vanessa told Acevedo to tell appellant to leave because she would call the police on him. In the past, Vanessa had said she would do something to appellant if he ever had a relationship with another woman.