P. v. Rojas

Filed 3/14/07 P. v. Rojas CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Michael S. Hider, Judge. (Retired judge of the Merced Super. Ct. assigned by the Chief Justice pursuant to art. VI, 6 of the Cal. Const.) Affirmed.

H. Reed Webb, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer and Edmond G. Brown, Jr., Attorneys General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, and Meagan J. Beale and Scott C. Taylor, Supervising Deputy Attorneys General, for Plaintiff and Respondent.

1. Introduction

Defendant and appellant Tirso Guillermo Rojas appeals his conviction of three counts of attempted kidnapping. (Pen. Code,  207, 664.) He contends that the evidence was insufficient to support the convictions and that the trial court erred in failing to give, sua sponte, an instruction on a lesser included offense as to one of the counts. We affirm.

2. Factual and Procedural Background

On February 3, 2003, Eric and Amanda B.,^[1]ages 11 and 13, respectively, were riding their bicycles on the street near their home in Lake Elsinore. The portion of the street where the children were playing is an unpaved dead end. A lot of trees grew on either side of the roadway. About 4:00 p.m., Amanda B. saw a dark blue van driven by a Hispanic man.

The van parked directly across the street from Amanda B.s house, and the driver watched her and Eric B. for about 30 seconds. He called out to the children, Come over here. Amanda B. said, No. The man persisted, Come over here, I want to talk to you, and coaxed her, dont be like that. Amanda B., becoming concerned, said, No, I dont know if youre some type of psycho or something. Undaunted, the man tried again. He held a toy animal out the window and said, This kind of looks like your dog. He told Amanda B. he wanted to give her the toy. She did not respond and he threw the toy into her yard.

Amanda B., now alarmed, told Eric B. to stay inside the fenced front yard. The man drove his van up the street, turned around, came back, and stopped near Amanda B.s house. He asked the children, Whats your name? but they did not reply. The man moved his van in front of a neighbors house. The children, leaving their bicycles outside the fence, had entered their gated front yard. The man got out of his van and opened the passenger side doors. He remarked that he was just going to stay there because he was tired.

Amanda B.s mother came outside; Eric and Amanda B., scared and worried, had gone into the house. Amanda B.s mother walked toward the van; the man saw her, went back to the drivers door, got into the van, and drove away. Amanda B.s mother tried to get the license plate number of the van.

About nine months later, on November 13, 2003, 15-year-old Melissa P. was walking along Spruce Street in Lake Elsinore. Melissa P. was accompanied by her neighbor, 11-year-old Amanda M. Amanda M. was riding her bicycle and Melissa P. was walking along the curb. As the girls were walking, defendant drove up slowly behind them in his blue van. He drove over onto the wrong side of the street, came near them, and said, Hey. Amanda M. gave Melissa P. a questioning look; Melissa P. responded, Lets go. She told Amanda M. to run, and began running herself.

Defendant kept pace with the girls in his van. Melissa P., heading to her home nearby, ran toward another cul-de-sac. Melissa P. was running ahead of Amanda M. on her bicycle. As Melissa P. tried to get onto another sidewalk, Amanda M.s bicycle tire struck her ankle, so I kind of slowed down. At that point, defendant grabbed Melissa P., but he did not get a full grip, so she was able to break free from his grasp. Defendant asked her, Why are you running? Why are you scared? and followed her in his van all the way to her house. Melissa P. dashed into her house, calling for her mother. Amanda M. also left her bicycle on the lawn and ran into Melissa P.s house.

Melissa P.s mother went outside and saw the blue van skidding out of her street at a high rate of speed. Melissa P. also testified that she heard the van speed away with screeching tires.

Amanda M. described the incident similarly. Defendant pulled alongside her and Melissa P. and said, Hey. She and Melissa P. looked at one another, and Melissa P. told her to Run. Melissa P. ran and Amanda M. followed on her bicycle. Amanda M. tried to get away because she was scared. The blue van pursued them; Amanda M. heard it coming faster as they fled. Amanda M. heard defendant say, Why are you running? Why are you scared? When they arrived at Melissa P.s house, Amanda M. dropped her bicycle and ran toward the house. She looked back and saw defendant open his car door before she escaped inside the house.

Deputy Jacqueline Horton responded to the report of Melissa P.s mother. After receiving the dispatch report describing the dark blue van and the male Hispanic driver, she saw a van matching that description parked on a street a short distance away from Melissa P.s home.

Deputy Horton and her partner, Deputy Graves, stopped by the parked van. Defendant was standing in a driveway, talking to another man. The officers got out of their marked patrol car and walked toward defendant. Before the officers had said anything to him, defendant spread his hands, stepped backward, and said, I didnt do anything. Defendant kept backing away, ignoring the officers requests to speak to him. He became combative and they had to force him to the ground to handcuff him. Defendants breath smelled of alcohol. Both Melissa P. and Amanda M. identified defendant in an in-field show-up as the driver of the van.

After defendants arrest, Deputy Mark Cordova recalled the February incident involving Eric and Amanda B. He prepared a photographic lineup to show them. Amanda B. viewed the photographic lineup and identified defendant as the driver of the blue van.

With respect to the February incident, defendant was charged with two counts of attempted kidnapping of Eric and Amanda B. With respect to the November incident, defendant was charged with attempted kidnapping of Melissa P. and Amanda M., and two misdemeanor counts of annoying a minor (Melissa P. & Amanda M.).

A jury found defendant guilty of attempted kidnapping as to Amanda B., Melissa P., and Amanda M. He was acquitted on the count relating to Eric B. and on the misdemeanor charges. The court sentenced defendant to two years six months in state prison on count 1, plus two consecutive terms of 10 months on each of counts 3 and 4, for a total term of four years two months.

Defendant appeals, contending the evidence was insufficient to support his convictions of attempted kidnapping. He further argues that the trial court erred in failing to instruct, sua sponte, on a lesser offense of attempted false imprisonment with respect to Melissa P.

3. Analysis

A. The Evidence Was Sufficient to Support the Convictions

At the close of the prosecutions case, defendant moved for a judgment of acquittal for insufficiency of the evidence. (Pen. Code,  1118.1.) The court ruled: Well, it was more than a touching of the arm, combined with an assault to grabbing of the arm. And the verbal conduct of the defendant . . . trying to get the girls to come with him. [] In the November 03 incident, theres definitely enough. The February 03 incident is weaker as far as attempted kidnapping is concerned. Those counts by themselves, I would be inclined to grant the motion, but the jury is hearing of both incidences and the reason his conduct at a later time indicates his intent at the earlier time, in that case, in the earlier case, it just didnt go far enough. I think theres enough to go to the jury. The court denied the motion.

Defendant renews his claim here, that the evidence was simply insufficient to support the convictions. In assessing a claim of insufficiency of the evidence, our task is to review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidencethat is, evidence that is reasonable, credible, and of solid valuesuch that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Christopher (2006) 137 Cal.App.4th 418, 430.)

Defendant points out that, in connection with the misdemeanor charges (Melissa P. & Amanda M.), the prosecutor remarked, I do not have proof for you of what his motivation was, where the crime required proof of conduct motivated by an abnormal sexual interest in the child victim. From this remark, defendant extrapolates that there was no evidence of his intent or purpose with respect to the attempted kidnapping charges. Defendant is incorrect.

Even if evidence of a specific motivation for the attempted kidnapping, i.e., sexual interest, was absent, evidence that defendant intended to kidnap the victims was present.

As to Melissa P. and Amanda M., defendant accosted them on neighborhood streets, near residential cul-de-sacs. It was 4:00 p.m. Defendant approached in his van, and even crossed the road, driving on the wrong side, to get near them. When the girls ran away, defendant actively pursued them in his vehicle, keeping pace with them. He tried to convince them to stop, saying, Why are you running? Why are you scared? Defendants remarks betray that he knew they were frightened, but he never offered them any reason why he had accosted them in the first place, if his intent were innocent. He took advantage of Melissa P. having to leave the safety of the sidewalk to cross a street to grab her arm, while still driving his moving vehicle. When she managed to pull away, he still chased the girls right up the driveway of Melissa P.s residence: he now knew where she lived. As Amanda M. dropped her bicycle and fled to the safety of the house, defendant did not break off the pursuit. Instead, Amanda M. testified that she saw him open his door. Only when an adult intervened Melissa P.s mother came out of the house  did defendant desist. He then sped away with screeching tires.

These were not the actions of an innocent person. Defendants suggestions that he might have intended simply to talk to young people because he enjoyed doing so, or to ask for directions, or to take the children for a ride if they consented, are belied by the record. Defendants suggestions are unreasonable and not supported by the evidence.

As in People v. Fields (1976) 56 Cal.App.3d 954, a strange man seizes the person of a young girl on a residential street and orders her to get into a vehicle whose motor is running, the specific intent and the affirmative act required to constitute the crime of attempted kidnapping are adequately manifested. (Id. at p. 956.) Although defendant here did not order Melissa P. into his car when he attempted to seize her, he had been appealing to her not to run away. In Fields, the car was stopped; here, defendants van was moving when he grabbed Melissa P.

The incident involving Amanda B. occurred nine months earlier, in February 2003. The evidence of the earlier incident, standing alone, was more ambiguous on the issue of intent. Nonetheless, under Evidence Code section 1101, subdivision (b), evidence of defendants other crimes is admissible when relevant to prove some fact in issue, such as intent. Intent may properly be inferred from evidence of other specific acts of a similar nature. (People v. Gilbert (1992) 5 Cal.App.4th 1372, 1380.)

Defendants intent in the later incident was patent. He chased after the fleeing girls in his motor vehicle. He pursued them when they obviously did not want contact with him. He drove onto the wrong side of the roadway and attempted to grab Melissa P. from his moving vehicle. The intent to capture one or both children and to asport them a substantial distance is the only reasonable inference from such facts.

As to Amanda B., defendant accosted her in a residential area which could easily provide cover for illicit activities (trees growing on both sides of a dead end dirt roadway). When she did not respond to his overture, he attempted to lure her close to him by proffering a toy. He persisted in his attempts to engage her attention, without providing any reasonable, legitimate purpose, pretext, or reason why he should be speaking to a young girl who was a stranger to him. He was not innocently asking for directions.

When Amanda B. remained wary and reluctant, defendant took the tack that he would simply wait for her, and he parked his van and opened the side doors. The van was a vehicle capable of moving substantial distances. The purpose of opening the doors, together with defendants repeated requests to Amanda B. to come over here, was to lure her inside the van.

When Amanda B.s mother came out of the house, and defendant drove away, she testified that she did not hear him start the engine. She was not sure whether the engine was already running or not, but she did not hear him start the car. Luring a child inside a van, waiting with open doors and an engine running, bespeaks an intention to asport the victim a substantial distance. The other crimes evidence reinforced the inference of defendants intent.

The inference that defendant intended to asport the victim a substantial distance is supported by the evidence in the whole record, including the evidence of defendants additional crimes. Substantial evidence supports all three convictions.

B. The Court Was Not Required to Instruct Sua Sponte on Attempted False Imprisonment

Defendant next contends that the trial court erred in failing to instruct, sua sponte, on attempted false imprisonment, as a lesser included offense of attempted kidnapping, with respect to count 3, involving Melissa P. He argues that the evidence that he reached through the window to grab Melissa P.s arm shows that he attempted to restrain her movement, i.e., that he committed an attempted false imprisonment, rather than an attempted kidnapping. Although Melissa P. was able to free herself almost effortlessly from [defendants] grip . . . the gesture would nevertheless support a jurys finding that [defendant] at least attempted to restrain Melissa. He argues that [t]his is true even though another reasonable interpretation of the evidence was that he was simply trying to help steady her after she had stumbled.

We reject defendants argument that the court had a duty to instruct on attempted false imprisonment as to Melissa P. A defendant has a constitutional right to have the jury instructed on lesser included offenses whenever there is evidence that could absolve the defendant from guilt of the greater offense or degree but would support a finding of guilt of the lesser offense or degree. (5 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Criminal Trial,  611, p. 871; see also People v. Barton (1995) 12 Cal.4th 186, 194-195.) A lesser included offense instruction need not be given, however, where it is not supported by the evidence. (People v. Barton, supra, at p. 196, fn. 5; People v. Cooksey (2002) 95 Cal.App.4th 1407, 1410.)

Here, the evidence did not justify a finding that defendant had committed the lesser, but not the greater, offense as to Melissa P. He pursued Melissa P. in a moving vehicle. As she ran, trying to escape, he cajoled her, Why are you running? He kept pace with the fleeing girl in his van, closing in on her by driving on the wrong side of the roadway. He was still driving the moving vehicle when he reached through the window and grabbed her arm. Although Melissa P. had stumbled slightly (her foot was struck by Amanda M.s bicycle tire), both girls testified adamantly that she had regained her balance and was running when defendant grabbed her arm. There was no evidence to contradict the girls statements in that regard. There was utterly no evidence to suggest that defendant was merely helping to steady her when she stumbled and none to suggest that a jury could reasonably find that he meant merely to restrain her liberty, but not to carry her away.

The trial court was not required, under the evidence, to instruct sua sponte on attempted false imprisonment with respect to Melissa P.

As to Amanda M., Melissa P.s companion, the evidence likewise would not justify a finding that defendant intended only to restrain her liberty, without substantial asportation. He pursued both girls in a moving vehicle. The trial court had no sua sponte duty to instruct on a lesser included offense of attempted false imprisonment as to Amanda M.

As to Amanda B., in contrast to the later incident, the van was stationary both when defendant originally accosted Amanda B. and her brother, trying to entice them near him, and when he parked and opened the vans side doors. Nevertheless, all the circumstances surrounding the offense were consistent with intent to kidnap rather than merely to falsely imprison Amanda B.

There was evidence to indicate that defendant may have had his engine running as he parked waiting for the victim, although that evidence was not free from all doubt. Amanda B.s mother was not completely sure, but she did not remember hearing defendant start the vans engine when he drove away. The mobile nature of the vehicle, in itself, was a further indication of defendants intent. Amanda B.s brother was also present in the yard, and defendant parked his van directly in front of Amanda B.s house. It was inconceivable that defendant would intend to carry out whatever nefarious purpose he had in mind in view of Amanda B.s mother, and while Amanda B.s brother looked on.

Defendants van was also outfitted for carrying someone awaythe interior was carpeted and the seats had been removed. The windows were also tinted. In addition, the later incident was admissible on the issue of defendants intent.

California law requires a trial court, sua sponte, to instruct fully on all lesser necessarily included offenses supported by the evidence. (People v. Breverman (1998) 19 Cal.4th 142, 148-149.) We conclude, based on the totality of the evidence, that there was no credible evidence to support an inference that defendant had the intent to restrain, but not carry away the victim. The court therefore was not required to instruct on the lesser included offense of attempted false imprisonment.

Even if the court erred technically in failing to give the instruction, there was no possible prejudice. To determine whether [such an instructional] error was prejudicial, we must consider whether after an examination of the entire cause, including the evidence (Cal. Const., art VI,  13), it appears reasonably probable the defendant would have obtained a more favorable outcome had the error not occurred ([People v.] Watson [(1956)] 46 Cal.2d 818, 836 [299 P.2d 243]). [Citation.] The question is not what a jury could have done, but what a jury would likely have done if properly instructed. [Citation.] (People v. Reeves (2001) 91 Cal.App.4th 14, 53.)

Based on the evidence in the Amanda B. charge, which differed little from the evidence relating to the other two charges, it is not reasonably probable that a jury instructed on attempted false imprisonment would have found defendant guilty of the lesser crime of attempted false imprisonment.

4. Disposition

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

McKINSTER

Acting P. J.

We concur:

KING

J.

MILLER

J.

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^[1] Amanda was named in the information as Amanda F. The reporters transcript refers to her, however, as Amanda B.