Opinion
E072487
03-15-2021
THE PEOPLE, Plaintiff and Respondent, v. VICTOR MENDEZ, JR. et al, Defendants and Appellants.
David P. Lampkin, under appointment by the Court of Appeal, for Defendant and Appellant, Victor Mendez, Jr. Stephen M. Hinkle, under appointment by the Court of Appeal, for Defendant and Appellant, Jesus Esparza, Jr. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. RIF1702960) OPINION APPEAL from the Superior Court of Riverside County. Mac R. Fisher, Judge. Affirmed as modified. David P. Lampkin, under appointment by the Court of Appeal, for Defendant and Appellant, Victor Mendez, Jr. Stephen M. Hinkle, under appointment by the Court of Appeal, for Defendant and Appellant, Jesus Esparza, Jr. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.
I.
BACKGROUND
K.H. fell asleep in the driver's seat of his car outside his house. He was woken up by a screwdriver or gun hitting him in the face. He saw a man outside the driver's side and another outside the passenger side. The man on the driver's side put a handgun to K.H.'s head and told him to get in the back seat or that he was going to kill him. K.H. climbed into the back seat as directed. The men got into the car and began driving away while the man with the gun pointed it at K.H.'s head. K.H. asked the men not to shoot him and to let him out. They told him to shut up or they would shoot him. The men then took K.H.'s ATM card and made him give them his PIN number. They also took his cell phone and wallet. They eventually let K.H. out of the car about a mile or two from his house and drove away. K.H. later identified defendant and appellant, Jesus Esparza, Jr., as the man with the gun and defendant and appellant, Victor Mendez, as the other man.
A jury convicted Mendez and Esparza of one count of carjacking (Pen. Code, § 215, subd. (a) ; count 1) and one count of kidnapping to facilitate a carjacking (§ 209.5; count 2). The jury also convicted Esparza of one count of assault with a firearm (§ 245, subd. (a)(2); count 3) and one count of unlawful use of personal identifying information (§ 530.5, subd. (a); count 4). The jury also found true the allegations that Esparza used a firearm in the commission of counts 1 and 2 (§ 12022.53, subd. (b)). The trial court sentenced Esparza to 17 years to life for count 2 and the gun use enhancement, but dismissed count 1 as a lesser offense of count 2. The trial court imposed concurrent sentences on counts 3 and 4. The trial court sentenced Mendez to 19 years to life on count 2, but dismissed count 1.
All future statutory references at to the Penal Code.
On appeal, Mendez argues the trial court prejudicially erred by allowing a police detective to testify that he recognized defendants as the individuals in surveillance footage using K.H.'s ATM card to withdraw money. Esparza argues the trial court prejudicially erred by failing to instruct the jury on false imprisonment as a lesser included offense of count 2. Mendez joins this argument. Esparza also argues, and the People concede, that the trial court erroneously imposed a concurrent term on count 3. We agree with the parties on this issue, but reject defendants' remaining contentions. We therefore affirm the judgments of conviction, affirm Mendez's sentence, and affirm Esparza's sentence except for the concurrent sentence imposed on count 3, which we stay.
II.
DISCUSSION
A. The Trial Court Did Not Err By Allowing a Detective to Identify Defendants in Surveillance Video Footage
Mendez contends the trial court erred by allowing a detective to testify that he recognized defendants in surveillance video footage. We disagree.
1. Additional Background
Defendants used K.H.'s ATM card to withdraw money at two ATMs, one of which was located at a 7-Eleven. Investigating officers obtained surveillance video footage showing defendants using the ATM. The Riverside Police Department used still photographs from the footage in a media release on television. Detective Hidalgo, a Los Angeles Police Department detective, saw the media release and recognized defendants. He contacted the Riverside Police Department and explained that he recognized defendants in the media release from his multiple past encounters with them. He specifically recognized Esparza's tattoo on his chest.
Before trial, the trial court held a hearing on whether Detective Hidalgo could testify about his familiarity with defendants. Mendez argued Detective Hidalgo's testimony would be unduly prejudicial because the jury would speculate why he encountered defendants in the past. The trial court held Detective Hidalgo could testify about the number of times he encountered defendants and the duration of those contacts. He would not be allowed to testify about the purpose of the contacts.
At trial, Mendez objected to Detective Hidalgo's anticipated testimony. He argued that Detective Hidalgo's expected testimony that he recognized defendants in the 7-Eleven footage would be improper opinion testimony and "invade[d] the jury's province" as the finder of fact. The trial court disagreed, reasoning that Detective Hidalgo's testimony would be offered only as lay opinion testimony.
Detective Hidalgo testified that he saw the media release with the 7-Eleven footage on television. He explained that he contacted the Riverside Police Department to inform them that he recognized defendants in the footage from his several encounters with them. He also identified Esparza's tattoo, which he had seen before. Based on his familiarity with defendants, Detective Hidalgo was "a hundred percent" sure it was them in the 7-Eleven footage.
2. Analysis
Courts "have long upheld admission of testimony identifying defendants in surveillance footage or photographs." (People v. Leon (2015) 61 Cal.4th 569, 601 (Leon).) "A lay witness may offer opinion testimony if it is rationally based on the witness's perception and helpful to a clear understanding of the witness's testimony. [Citation.] '[T]he identity of a person is a proper subject of nonexpert opinion . . . .' [Citations.]" (Ibid.) We review the trial court's ruling allowing Detective Hidalgo's testimony for an abuse of discretion. (Id. at p. 600.)
In Leon, our Supreme Court held that an officer's identification of the defendant in surveillance videos of two robberies was proper lay opinion testimony. (Leon, supra, 61 Cal.4th at p. 600.) The officer testified that he became familiar with the defendant's appearance through his participation in the defendant's arrest and from later seeing the defendant "nearly 10 times." (Id. at p. 601.) The officer also observed that the jacket the defendant wore during the arrest looked like the jacket worn by an individual in one of the videos. (Ibid.) The Leon court held the officer's familiarity with the defendant's appearance "around the time of the crimes" was sufficient foundation for his lay opinion identifying the defendant in the videos at trial. (Ibid.)
Leon is directly on point here, and leads us to conclude the trial court did not abuse its discretion by admitting Detective Hidalgo's testimony. Like the officer in Leon, Detective Hidalgo recognized defendants in the 7-Eleven surveillance video footage because of his multiple previous contacts with them. Detective Hidalgo's testimony thus was helpful to the jury because he could explain his "'awareness of [certain] physical characteristics,'" such as Esparza's chest tattoo. (Leon, supra, 61 Cal.4th at p. 601.) Because Detective Hidalgo's "testimony was based on his relevant personal knowledge and aided the jury, the court did not abuse its discretion by admitting it." (Ibid.; accord, People v. Mixon (1982) 129 Cal.App.3d 118, 128-130 [trial court properly admitted lay opinion testimony identifying defendant in surveillance photographs from police officers who had multiple previous contacts with defendant].)
Mendez also contends the admission of Detective Hidalgo's testimony violated his federal constitutional rights. We disagree. "[T]he routine application of provisions of the state Evidence Code law does not implicate a defendant's constitutional rights." (People v. Jones (2013) 57 Cal.4th 899, 957.) "Application of the ordinary rules of evidence generally does not impermissibly infringe on a . . . defendant's constitutional rights. [Citations.] [Mendez] fails to persuade us this case constitutes an exception to that general rule." (People v. Kraft (2000) 23 Cal.4th 978, 1035-1036.) As explained, the trial court properly admitted Detective Hidalgo's testimony. "Because the trial court's ruling was not an abuse of discretion . . . defendant's constitutional claim also fails." (People v. Miranda (2011) 199 Cal.App.4th 1403, 1426.)
B. The Trial Court Properly Declined to Instruct the Jury On False Imprisonment
Esparza, joined by Mendez, argues that the trial court erred by refusing to instruct the jury on false imprisonment as a lesser included offense of count 2, kidnapping in the commission of a carjacking. We disagree.
An uncharged offense is included in a greater charged offense if the greater offense, as defined by statute, cannot be committed without also committing the lesser, or the language of the accusatory pleading encompasses all the elements of the lesser offense. (People v. Parson (2008) 44 Cal.4th 332, 349.) "[E]ven absent a request, a trial court must instruct on the general principles of law relevant to the issues the evidence raises. [Citation.] '"That obligation has been held to include giving instructions on lesser included offenses when the evidence raises a question as to whether all of the elements of the charged offense were present [citation], but not when there is no evidence that the offense was less than that charged. [Citations.]"' [Citation.] '[T]he existence of "any evidence, no matter how weak" will not justify instructions on a lesser included offense, but such instructions are required whenever evidence that the defendant is guilty only of the lesser offense is "substantial enough to merit consideration" by the jury. [Citations.]' [Citation.]" (People v. Taylor (2010) 48 Cal.4th 574, 623.) "'"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.'" (People v. Moye (2009) 47 Cal.4th 537, 553.) We review the failure to give a lesser included offense instruction de novo. (People v. Cooksey (2002) 95 Cal.App.4th 1407, 1411.)
As the People acknowledge, defendant is correct that false imprisonment is a lesser included offense of kidnapping during the commission of a carjacking. (People v. Magana (1991) 230 Cal.App.3d 1117, 1120-1121; People v. Shadden (2001) 93 Cal.App.4th 164, 171.) However, there was insufficient evidence that defendants falsely imprisoned K.H., but did not kidnap him during the commission of a carjacking. (See People v. Moye, supra, 47 Cal.4th at p. 553 [instruction on lesser included offense required if substantial evidence suggests "the lesser offense, but not the greater, was committed"].)
"False imprisonment is the unlawful violation of the personal liberty of another." (§ 236.) A defendant is guilty of false imprisonment if he (1) "intentionally and unlawfully restrained, confined, or detained someone by violence or menace" and (2) "made the other person stay or go somewhere against that person's will." (CALCRIM No. 1240.)
Section 209.5, subdivision (a), "combines the offenses of kidnapping and carjacking." (People v. Medina (2007) 41 Cal.4th 685, 694.) Carjacking is "the felonious taking of a motor vehicle in the possession of another, . . . against his or her will and with the intent to either permanently or temporarily deprive the person in possession of the motor vehicle of his or her possession, accomplished by means of force or fear." (§ 215, subd. (a).) Section 207 defines kidnapping, and provides in relevant part: "(a) Every person who forcibly, or by any other means of instilling fear, steals or takes, or holds, detains, or arrests any person in this state, and carries the person into another country, state, or county, or into another part of the same county, is guilty of kidnapping."
The trial court thus correctly instructed the jury that Esparza was guilty of kidnapping during a carjacking if he (1) committed a carjacking, (2) "took, held, or detained another person by using force or by instilling reasonable fear," (3) "moved the other person or made that person move a substantial distance from the vicinity of the carjacking," (4) "moved or caused the other person to move with the intent to facilitate the carjacking," (5) "[t]he person moved was not one of the carjackers," and (6) "[t]he other person did not consent to the movement." The trial court also correctly instructed the jury that, as to the third element, the "movement must also have increased the risk of physical or psychological harm to the person beyond that necessarily presented in the carjacking." (See § 209.5, subd. (b).) We refer to this principle as the "'risk of harm'" test. (See In re Earley (1975) 14 Cal.3d 122, 131.)
Esparza argues there was sufficient evidence from which the jury could have reasonably concluded that the third element was not satisfied, but he does not dispute that the remaining elements were satisfied. Specifically, he contends the evidence was sufficient to allow the jury to find that defendants' movement of K.H. did not "increase[] the risk of harm to [K.H.] over and above that necessarily present in the crime or carjacking itself," as section 209.5, subdivision (b) requires.
To make that assessment, we consider "'such factors as the decreased likelihood of detection, the danger inherent in a victim's foreseeable attempts to escape, and the attacker's enhanced opportunity to commit additional crimes.'" (People v. Martinez (1999) 20 Cal.4th 225, 233.) Applying these factors, we conclude no reasonable juror could find that defendants' conduct did not increase the risk of harm to K.H. over and above that necessarily present in the crime of carjacking itself.
Transporting a carjacking victim in a car gives "rise to dangers, not inherent in [a carjacking], that an auto accident might occur or that the victim might attempt to escape from the moving car or be pushed therefrom." (In re Earley, supra, 14 Cal.3d at p. 132.) By ordering K.H. in the backseat of his car and driving him away, defendants decreased the likelihood that they would be detected. (See People v. Leavel (2012) 203 Cal.App.4th 823, 836 [defendant's ordering robbery victim back into her home "decreased the possibility of detection"].) They also increased their ability to commit additional crimes against K.H. (See ibid. [defendant's ordering robbery victim back into her home "enhanced his opportunity to commit additional crimes against her"].) More to the point, "[t]he 'risk of harm' test is satisfied when the victim is forced to travel a substantial distance under the threat of imminent injury by a deadly weapon. [Citation.]" (In re Earley, supra, 14 Cal.3d at p. 131.) Defendants drove K.H. over a mile away at gunpoint, thus satisfying the "'risk of harm'" test. (Ibid.)
We therefore conclude there is insufficient evidence in the record to suggest that defendants did not increase the risk of harm to K.H. over and above that necessarily present in the crime of carjacking itself. On this record, a reasonable jury could not conclude that defendants falsely imprisoned K.H., but did not kidnap him in the commission of a carjacking. As a result, the trial court did not need to instruct the jury on false imprisonment. (People v. Moye, supra, 47 Cal.4th at p. 553.)
Even if the trial court erred by not instructing the jury on false imprisonment, any resulting error was harmless. Error in failing to instruct "on all lesser included offenses . . . must be reviewed for prejudice." (People v. Breverman (1998) 19 Cal.4th 142, 178.) A conviction may be reversed only if it is "'reasonably probable' the defendant would have obtained a more favorable outcome had the error not occurred." (Ibid.) This assessment "focuses not on what a reasonable jury could do, but what such a jury is likely to have done in the absence of error." (Id. at p. 177.)
Esparza argues the jury may have found that the "risk of harm" test had not been satisfied and thus may have convicted him of the lesser offense of false imprisonment. We disagree. The evidence that defendants increased the risk of harm to K.H. "over and above" that necessary to commit a carjacking was overwhelming. Esparza ordered K.H. into the back of his car at gun point, held a gun to his head, threatened to shoot him if he did not "shut up," refused to let him out, and then made him get out of the car over a mile from where defendants carjacked him. Given the strong evidence that defendants were guilty of kidnapping K.H. in the commission of a carjacking, we conclude it is not reasonably probable that the jury would have convicted them of false imprisonment if it had been instructed on that offense.
C. Esparza's Concurrent Sentence on Count 3 Must Be Stayed
Esparza contends, and the People concede, that his sentence on count 3, assault with a firearm, should be stayed under section 654 because it was part of the same course of conduct as counts 1 and 2. We agree with the parties.
Section 654, subdivision (a), provides that "[a]n act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision." The statute "applies not only where there was but one act in the ordinary sense, but also where there was a course of conduct which violated more than one statute but nevertheless constituted an indivisible transaction. . . . If all the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one." (People v. Perez (1979) 23 Cal.3d 545, 551.) Section 654 therefore "precludes multiple punishment for a single act or omission, or an indivisible course of conduct. [Citations.] If, for example, a defendant suffers two convictions, punishment for one of which is precluded by section 654, that section requires the sentence for one conviction to be imposed, and the other imposed and then stayed." (People v. Deloza (1998) 18 Cal.4th 585, 591-592.)
Esparza committed an assault with a firearm to kidnap and carjack K.H. He thus argues, and the People concede, that the offense was part of the same continuous course of conduct with the same objective—kidnapping and carjacking K.H. We agree. Defendant's sentence on count 3 therefore must be stayed under section 654. (People v. Deloza, supra, 18 Cal.4th at pp. 591-592.)
III.
DISPOSITION
The judgment is modified to stay Esparza's sentence imposed on count 3. The judgment is affirmed as modified. The trial court is directed to prepare an amended abstract of judgment reflecting the judgment as modified, and to forward a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J. I concur: MILLER
Acting P. J. MENETREZ, J., Concurring and Dissenting.
I concur in the majority opinion except for the judgment and Part B of the Discussion. In my view, the trial court erred by failing to instruct on the lesser included offense of false imprisonment, and the error was prejudicial.
The jury could have reasonably inferred that the movement of the victim did not increase the risk of harm to the victim. The risk of harm was already extremely high before the victim was moved; he was already in mortal danger. And the jury could have reasonably concluded that the movement of the victim did not increase the risk. Defendants did not take the victim to a secluded location. Rather, they drove him one or two miles down the street and released him.
Because the jury could have reasonably found that the movement of the victim did not increase the risk of harm to the victim, the trial court erred by failing to instruct on the lesser included offense of false imprisonment. Moreover, because the evidence of increased risk was not overwhelming, it is reasonably probable that defendants would have obtained a more favorable result in the absence of the error. (People v. Breverman (1998) 19 Cal.4th 142, 178.) The error was therefore prejudicial and warrants reversal.
MENETREZ
J.