P. v. Pitts

Filed 4/28/06 P. v. Pitts CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(El Dorado)

A jury convicted defendant Michael Conan Pitts of kidnapping a child under 14 years of age. (Pen. Code, §§ 207, subd. (a), 208, subd. (b).)^[1] The trial court sentenced him to an 11 year prison term to run consecutive to an unrelated federal case.

The defendant dragged the victim 16 feet in plain view from a bus stop to his car where he attempted to place her into the trunk of his car. He was unable to do so and the victim escaped. For this reason defendant argues the evidence of asportation was insufficient to support the kidnapping conviction. Defendant also argues the trial court improperly excluded evidence of third party culpability, improperly admitted evidence of prior bad acts, improperly instructed the jury regarding admissions, and improperly instructed the jury regarding the standard of proof for finding he had committed other crimes.

We shall conclude that defendant's movement of the victim a distance of 16 feet in plain view from a bus stop to his car was not a substantial distance (see Cotton v. Superior Court (1961) 56 Cal.2d 459 [15 feet]), and, because his attempt to place the victim in the trunk of his car failed, the movement did not increase the victim's risk of harm, decrease the defendant's chance of detection, or enhance his opportunity to commit additional crimes. Accordingly, the totality of the circumstances show the asportation was not substantial in character, and for that reason the conduct constituted an attempted kidnapping.

We therefore will reverse the judgment of conviction for the kidnapping of a person under the age of 14 and direct that the trial court enter a judgment for the attempted kidnapping of a person under the age of 14 and modify the sentence accordingly. In all other respects we will affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Nine-year-old Mesha G. was waiting alone for her school bus to arrive at its stop in Pollock Pines when she saw a white Ford four-door car drive up and park nearby next to a beauty salon. It was September 30, 2003, around 7:40 a.m. A man with blond or light brown hair and glasses, wearing a large silver watch and blue jeans and a white T-shirt, got out of the car and partially opened his trunk. He went over to the beauty salon and looked in the window. He asked Mesha what time the salon opened, and she told him she did not know. He then went back to his car, opened the trunk all the way, walked back to Mesha, looked both ways up and down the street, then put one hand over Mesha's mouth, the other under her arm, and began pulling and dragging her over to his car. He tried to force her into the trunk. Mesha noticed the trunk had nothing in it, and the car smelled clean and new. He told her, â€