P. v. Lombardi
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF
THE PEOPLE, Plaintiff and Respondent, v. PAUL JOSEPH LOMBARDI, Defendant and Appellant. | D047173 (Super. |
APPEAL from a judgment of the Superior Court of San Diego County, Kenneth K. So, Judge. Affirmed.
Appellant left his home in Northern California and traveled to Poway where he attempted to drag his estranged wife from her car as she was leaving for work one morning. At trial appellant testified he just wanted to give his wife some of her property.
Appellant was convicted of attempted kidnapping and inflicting corporal punishment on his wife. On appeal he contends the trial court erred in permitting the prosecution to offer evidence of prior acts of domestic violence and kidnapping and in instructing the jury. We find no error and affirm appellant's conviction.
FACTUAL BACKGROUND
At all pertinent times defendant and appellant Paul Joseph Lombardi and his wife Lisa Marie Pond were married. During 2002 Lombardi subjected Pond to physical abuse and threatened her with a firearm. As a result of this behavior in July 2003 Pond left Lombardi and the Northern California home she shared with him and moved to her sister's home in Poway.
On the morning of
Pond screamed at Lombardi: " No, I'm not going with you. No, I'm not going with you." In attempting to pull Pond out of the car Lombardi grabbed Pond's face, hair and arm. Pond fought back and at one point Lombardi grabbed her throat and tried to pull her out of the car. Pond was able to slide over to the passenger side of the car and honk the horn. In response Lombardi got in the driver's seat and attempted to start the car; however, in his haste he bent the key.
Both Pond and Lombardi got out of the car and Pond continued to scream. Pond's sister and brother-in-law emerged from their home along with other family members. Pond's sister told Lombardi to " get the fuck off [my] property." When Pond's relatives were present Lombardi became a different person and told them that he just wanted talk to Pond.
Pond's demeanor did not change. According to her brother-in-law, he remembers seeing Pond terrified, " frozen stiff" and shaking. Another witness heard Pond screaming over and over again " Oh, my God. Help me." The witness called the police and handed the phone to Pond.
Following the attack, Pond had a cut on her eye and scratches and bruises. Lombardi is six-foot, four-inches tall and weighs approximately 270 pounds; Pond is approximately five-foot, seven-inches tall and weighs approximately 130 pounds.
The district attorney charged Lombardi with one count of attempted kidnapping (Pen. Code,[1] §§ 207, subd. (a), 664) and one count of inflicting corporal punishment on a spouse (§ 273.5, subd. (a)). The information also alleged that Lombardi had served four prior prison terms within the meaning of section 667.5, subdivision (b), two of which were serious felonies within the meaning of section 667, subdivision (a)(1), and strikes within the meaning of sections 667, subdivisions (b) through (i), and 1170.12.
At trial the prosecution presented evidence from Lombardi's first wife and a former girlfriend. Lombardi's first wife testified that shortly after she left Lombardi in December 1982 he found her at a gas station with her sister, pulled her out of her sister's car, forced her into his car, drove her to a motel and sexually assaulted her. Later, Lombardi was arrested while holding a knife to his wife's throat. Following this incident they reconciled. After their reconciliation Lombardi continued to push, shove, hit and threaten his first wife.
Lombardi's former girlfriend testified that during the entire course of a six-year relationship with Lombardi he physically abused her and threatened her with knives. After she left him and was living at a shelter Lombardi broke into the shelter and knocked a shelter employee to the floor.
At trial Lombardi took the stand in his own defense. He testified that after Pond left he attempted to locate her in Northern California and had been unsuccessful. A friend in Northern California told him that Pond was living with her sister in Poway and wanted him to bring her some jewelry and other property she had left in storage. He knew the sister's address because it was in an address book he and Pond maintained when they were together. Although Lombardi did not speak to Pond before beginning his trip or otherwise advise her he was coming, he drove through the night from his home in Lake County and arrived at Pond's sister's home at around 6 a.m. on the morning of September 24, 2003. According to Lombardi he waited until
The jury found Lombardi guilty of both attempted kidnapping and infliction of corporal punishment on a spouse. He admitted the prior prison terms, prior felonies and strikes and the trial court sentenced him to prison for 37 years to life.
I
Lombardi contends the trial court erred in permitting the prosecution to offer testimony from his first wife and his former girlfriend. He contends that because those incidents occurred many years before the Pond incident and involved more violence than was alleged here, the incidents the two women testified about were too dissimilar to be probative and were highly prejudicial. We find no error.
Although evidence of prior bad acts is generally barred by Evidence Code section 1101, subdivision (a), Evidence Code section 1109, subdivision (a), provides in pertinent part: " in a criminal action in which the defendant is accused of an offense involving domestic violence, evidence of the defendant's commission of other domestic violence is not made inadmissible by Section 1101 if the evidence is not inadmissible pursuant to section 352." Because Lombardi was charged with domestic violence, Evidence Code section 1109, subdivision (a), applied and the testimony offered by the prosecution was subject only to the requirements of Evidence Code section 352. (See People v. Fitch (1997) 55 Cal.App.4th 172, 183 [construing analagous provisions of Evidence Code section 1108].)
Under Evidence Code section 352 we must " examine whether the probative value of the evidence of defendant's uncharged offenses is 'substantially outweighed by the probability that its admission [would] . . . create substantial danger of undue prejudice, of confusing the issues, or misleading the jury.' [Citation.]" (People v. Ewoldt (1994) 7 Cal.4th 380, 404.) In doing so we must be mindful that " '[s]ince " substantial prejudicial effect [is] inherent in [such] evidence," uncharged offenses are admissible only if they have substantial probative value.' [Citation.]" (Ibid.)
Here the principal question in dispute at trial was whether, in traveling to Poway, Lombardi planned to merely talk to Pond about reconciling or whether he planned to forcibly take her with him back to Northern California. On this critical issue -- Lombardi's intentions in coming to Poway -- the testimony of his first wife and his former girlfriend was highly probative because it demonstrated that in remarkably similar emotional settings Lombardi violently pursued a domestic partner who was attempting to leave him.
In this regard we note that when evidence of prior acts is offered to show such a common scheme or plan the plan need not be precisely similar or unusual. In People v. Ruiz (1988) 44 Cal.3d 589, 605, the defendant was charged with the 1975 murder of one wife and the 1978 murder of another wife and her teenage son. The first victim disappeared and was never found. The second two victims also disappeared but shortly after their disappearances were reported to authorities their bodies were found buried near the defendant's house; both had been shot in the head at close range. Notwithstanding the obvious differences in the crimes, the court found that each wife's disappearance was sufficiently similar to the other's disappearance to overcome any objection under Evidence Code section 1101. The court stated: " The most significant similarity between the two sets of murder charges was that both involved a wife of defendant who abruptly disappeared under suspicious circumstances indicating possible foul play, including [the first victim's] failure to contact her pastor, her doctor, her friends and relatives, or to resume Medi-Cal or Social Security payments, and [the second victim's] failure to communicate with friends, relatives, or the law firm representing her interests. Both women left behind items of property or personal possessions . . . . In both cases, defendant seemed undisturbed by his wife's disappearance and uncooperative in attempts to discover her whereabouts." (Id. at pp. 605-606.) As the court stated in People v. Ewoldt, supra, 7 Cal.4th at page 403: " To establish the existence of a common design or plan, the common features must indicate the existence of a plan rather than a series of similar spontaneous acts, but the plan thus revealed need not be distinctive or unusual."
Here each woman was at one point Lombardi's domestic partner. Each reported a history of physical abuse and threats. As a result of the abuse all three women attempted to leave Lombardi and all three reported that when they did so Lombardi came after them in an extremely violent manner. These similarities in the descriptions of Lombardi's behavior in similar settings made the uncharged acts very probative in determining whether Pond's version of events was more credible than Lombardi's.
Notwithstanding their probative value, we must also consider whether the uncharged acts were unduly prejudicial. For instance, in People v. Harris (1998) 60 Cal.App.4th 727 the defendant was convicted in 1972 of first degree burglary with great bodily injury growing out of a violent rape he committed on a stranger. The People offered evidence of the 1972 conviction in a 1995 prosecution involving his sexual conduct with two mental patients he had befriended while working at a mental hospital. In finding that it was unduly prejudicial to use the earlier conviction in the later prosecution, the court noted the inflammatory nature of the prior act and its sharp differences with the charges the defendant was facing at trial. " The charged crimes involving a breach of trust and the 'taking advantage' of two emotionally and physically vulnerable women are of significantly different nature and quality than the violent and perverse attack on a stranger that was described to the jury." (Id. at p. 738.) Here there is no such disparity between the prior incidents and the charged crimes. All three incidents were of the same character and involved abuse, threats and violence against a domestic partner attempting to end a relationship with Lombardi. In light of these similarities there was little risk the jury would be unduly inflamed or confused by the prior incidents.
We also note that the incident Lombardi's wife described occurred more than 20 years before his attack on Pond. However, the " 'staleness' of an offense is generally relevant if and only if the defendant has led a blameless life." (People v. Harris, supra, 60 Cal.App.4th at p. 739.) As the testimony of Lombardi's former wife, former girlfriend and Pond demonstrate, appellant has hardly led a blameless life; rather, he has continued a lifelong pattern of domestic abuse. In this factual context the length of time that has passed since Lombardi's assault on his former wife is not unduly prejudicial.
In sum given the probative value of the prior incidents and the absence of undue prejudice the trial court acted well within its discretion in allowing testimony from Lombardi's former wife and former girlfriend.
II
In instructing the jury on the crime of attempted kidnapping, the trial court gave the jury an instruction which in pertinent part stated: " An attempt to commit a crime consists of two elements: namely, a specific intent to commit the crime; and a direct but ineffectual act done towards its commission.[¶] . . . [¶]
" For the purposes of this instruction, every person who unlawfully and with physical force attempts to steal or take or hold, detain, or arrest another person and carry that person without her consent for a distance that is substantial in character, is guilty of the crime of attempted kidnapping, in violation of Penal Code sections 664 and 207, subdivision (a).[¶] . . . [¶]
" In order to prove this crime, each of the following elements must be proved: one, the defendant attempted to unlawfully move the victim by the use of physical force; two, the attempted movement of the victim would have been without her consent; and three, the attempted movement of the other person in distance would have been substantial in character."
During its deliberations the jury asked whether it must find that Lombardi actually moved Pond or only that he attempted to move her. In answering the jury's question the trial court clarified its initial instruction on attempted kidnapping: " In response to your note concerning CALJIC 9.50 and 6.00, . . . paragraph 4 . . . is clarified to read: 'For the purposes of this instruction, every person who unlawfully and with physical force attempts to steal or take, or attempts to hold, attempts to detain, or attempts to arrest another person and attempts to carry that person without her consent for a distance that is substantial in character, is guilty of the crime of attempted kidnapping in violation of Penal Code sections 664 and 207, subdivision (a)." (Italics added.)
Contrary to Lombardi's argument, these instructions expressly and appropriately advise the jury that in order to find Lombardi guilty of attempted kidnapping it was required to find that Lombardi had the specific intent to take Pond a substantial distance. The instructions did not in any manner relieve the prosecution of its burden of proving that element of attempted kidnapping.
III
As part of its instruction on attempted kidnapping, the trial court defined the substantial movement necessary for the crime of kidnapping: " A movement that is only for a slight or trivial distance is not substantial in character. In determining whether a distance that is more than slight or trivial is substantial in character, you should consider the totality of the circumstances attending the movement, but not limited to the actual distance moved, whether the movement increased the risk of harm above that which existed prior to the movement or decreased the likelihood of detection or increased both the danger inherent in a victim's foreseeable attempt to escape and the attacker's enhanced opportunity additional crimes." This instruction is taken from CALJIC 9.50, the standard instruction on kidnapping. This portion of CALJIC 9.50 in turn incorporates language suggested by the Supreme Court in People v. Martinez (1999) 20 Cal.4th 225, 237. It fully advised the jury of its need to find that Lombardi's intent was to move Pond a substantial distance.
In addition to the foregoing, Lombardi argues the trial court should have instructed the jury that in determining the substantiality of any intended movement, the jury needed to consider " whether the distance a victim was moved was incidental to the commission of [an associated crime]." (See People v. Martinez , supra, 20 Cal.4th at p. 237.) In the context of this case, where Lombardi was charged with attempted kidnapping and there was no evidence Pond was moved any distance, this addition to the instruction would have been distracting and confusing. The addition Lombardi suggests would have distracted the jury from consideration of Lombardi's overall intent in coming to Poway and required the jury to focus on the actual distance Pond was moved during the course of the assault Lombardi committed. Unlike the cases and circumstances discussed in People v. Martinez, supra, 20 Cal.4th at page 237, where a victim's movement is incidental to the commission of another offense such as rape or robbery, here the other offense -- the assault Pond endured -- was itself only incidental to Lombardi's larger plan to take Pond back to Northern California. In this context, where the defendant was only charged with attempted kidnapping and the associated crime is itself only an incident of a larger plan to kidnap the victim, instruction on the movement involved in the incidental crime would have been unnecessary and confusing.
IV
Lombardi did not request and the trial court did not provide the jury with an instruction on false imprisonment. On appeal Lombardi argues the trial court was nonetheless required to treat false imprisonment as a lesser included offense of attempted kidnapping and provide the jury with a sua sponte instruction on false imprisonment. We find no error.
A trial court is required " to instruct, sua sponte, on all theories of a lesser included offense which find substantial support in the evidence. On the other hand, the court is not obliged to instruct on theories that have no such evidentiary support." (People v. Breverman (1998) 19 Cal.4th 142, 162.) " 'Substantial evidence' in this context is ' " evidence from which a jury composed of reasonable [persons] could . . . conclude []" ' that the lesser offense, but not the greater, was committed." (Ibid.)
Lombardi argues that if the jury determined he did not have the intent to take Pond from her sister's driveway, the jury still might have found that he had falsely imprisoned her. Admittedly, false imprisonment is a lesser included offense of all types of kidnapping. (People v. Morrison (1964) 228 Cal.App.2d 707, 713; People v. Gibbs (1970) 12 Cal.App.3d 526, 547.) However, even if we assume false imprisonment is also a lesser included offense of attempted kidnapping, there is no evidence in the record which would support a conviction of false imprisonment.
" False imprisonment is the unlawful violation of the personal liberty of another." (§ 236.) A person can be seized and confined for purposes of false imprisonment either through fear or force. " [A] person can be seized and confined without any use of force, if he submits to confinement under the compulsion of fear and if that fear is not unreasonable under the circumstances." (People v. Martinez (1984) 150 Cal.App.3d 579, 599, disapproved on other grounds People v. Hayes (1990) 52 Cal.3d 577, 628, fn. 10.) However, " the use of fear to detain a person cannot establish a seizure or confinement if the person is at no time 'compelled to obey.' If threats and fear are ineffectual to cause confinement, and confinement is not effectuated by other means, then no seizure or confinement has occurred." (Id. at p. 600.) By the same token " the application of physical force upon a person is insufficient to establish his seizure or confinement for purposes of kidnapping and false imprisonment if the person successfully resists the force used. . . . We can find no case of false imprisonment, whether criminal or tortious, where the victim's resistance to force was not sufficiently quelled to enable his assailant to possess him. Absent such possession, the application of force reasonably establishes not false imprisonment or kidnapping, but assault." (Ibid., fn. omitted.)
Here there is nothing in the record which suggested that Lombardi ever had control over Pond sufficient to establish false imprisonment. According to her testimony he grabbed her and attempted to pull her from the car, but she resisted him vigorously and was able to move to the passenger's side of the car and eventually get out of the car. According to Lombardi's testimony he never touched Pond. On this record the jury could not have reasonably concluded that Lombardi successfully detained Pond. Accordingly, the trial court was not required to instruct on the crime of false imprisonment.
Judgment affirmed.
BENKE, Acting P. J.
WE CONCUR:
HALLER, J.
O'ROURKE, J.
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[1] All further statutory references are to the Penal Code unless otherwise specified.
