Opinion
B217493
08-10-2011
THE PEOPLE, Plaintiff and Respondent, v. GABRIEL PARTIDA et al., Defendants and Appellants.
Diane E. Berley, under appointment by the Court of Appeal, for Defendant and Appellant Gabriel Partida. Tara K. Hoveland, under appointment by the Court of Appeal, for Defendant and Appellant Joshua Plascencia. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven D. Matthews, Supervising Deputy Attorney General, and Herbert S. Tetef, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. BA287134)
APPEALS from judgments of the Superior Court of Los Angeles County, Michael E. Pastor, Judge. Affirmed.
Diane E. Berley, under appointment by the Court of Appeal, for Defendant and Appellant Gabriel Partida.
Tara K. Hoveland, under appointment by the Court of Appeal, for Defendant and Appellant Joshua Plascencia.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven D. Matthews, Supervising Deputy Attorney General, and Herbert S. Tetef, Deputy Attorney General, for Plaintiff and Respondent.
Appellant Joshua Plascencia, convicted of kidnapping for ransom, contends the trial court erred when it denied his motion to sever his trial from the trial of his codefendant and appellant Gabriel Partida. Plascencia also contends the evidentiary record is insufficient to support his conviction for the same offense, and requests that we review the sealed transcript of the hearing on his Pitchess motion. Both appellants maintain the trial court erred in refusing to instruct the jury on false imprisonment. We affirm.
PROCEDURAL BACKGROUND
A jury convicted Partida and Plascencia of kidnapping for ransom. (Pen. Code, § 209, subd. (a).). The jury found that Partida personally used a firearm during the commission of the crime (§12022.53, subd. (b)). As to both defendants, the jury also found that a principal was armed with a firearm during the commission of the crime (§ 12022, subd. (a)(1)). Partida admitted that he had two prior "strike" convictions (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), two prior serious felony convictions (§ 667, subd. (a)), and had served two prior prison terms (§ 667.5, subd. (b)). Partida was sentenced to state prison for life with the possibility of parole, plus 25 years to life, plus 15 years. Plascencia was sentenced to state prison for life with the possibility of parole. Partida and Plascencia appeal.
Unless otherwise stated, all statutory references are to the Penal Code.
Appellants' former co-defendants, Ralph Montanez and Andrew Ruiz, are not parties to this appeal.
FACTUAL BACKGROUND
The abduction
In 2005 Marvin Reyes and his wife, Maritza Navarro, owned a beauty salon on Olympic Boulevard in Los Angeles. They were at the salon the afternoon of March 23, 2005. Navarro's sister, Petrona Navarro was also present.
At about 1:30 p.m., two men with shaved heads passed by the salon and stopped to look at a sign on the door that said, "Cosmetologist wanted, ask for Maritza." About 10 minutes later, the men entered the salon. One man remained near the door, with the hood of his sweatshirt up and his hands in his pockets. The other man, who had tattoos on his neck, one of which read, "Watts up," came into the shop and asked for Maritza or Irma Reyes, Marvin's mother. Marvin asked the man what he wanted. The man took Marvin by the arm and asked him to step outside where a four-door, burgundy colored Honda was double parked near the curb. There were two more men at the car, either inside, or one in the driver's seat and one standing near the rear passenger door. Afraid, Marvin shouted to his wife, "go inside Maritza. They are going to kill you." The man, whom Marvin later identified as Partida, had a gun in his waistband. He grabbed Marvin by the sweater, said he "wasn't playing around" and pushed him into the car, which then drove off. Marvin also testified that Partida was the man who had asked for Maritza, and whose neck bore the tattoo "Watts up."
At one point, Marvin told deputies of the Los Angeles Sheriff's Department (LASD) he complied voluntarily with a request to go outside and did not mention the man had taken his arm.
At trial, Petrona identified Partida as the man who stood by the door. Earlier, she identified Partida in a photographic display ("six-pack") as the man who walked into the salon.
At first, Maritza could not identify anyone in court as being among the four men who participated in Marvin's abduction. Eventually she testified that Partida looked familiar to her even though he had hair by the time of trial. She then identified Partida as the man who stood by the door. At trial, after Partida was ordered to display the "Watts up" tattoo on his neck, Maritza testified both men must have had the same tattoo. About a month after the incident, Maritza identified Partida as the man who came into the salon and grabbed Marvin.
At trial, Marvin identified Plascencia as the man who stood by the door. He testified that Plascencia both rode in the back seat of the car with him and in the front passenger seat, which is also what he had told the police. At trial, Marvin identified both Partida and a third man as the driver of the car. Marvin also testified that Partida sat next to him in the back of the car. Partida hit Marvin on the back of the head with a gun and told him to duck down. Partida took Marvin's cell phone and wallet, which contained, among other things, a paycheck and some credit cards.
In a meeting with police the day after the incident, Marvin identified someone other than Plascencia from a six-pack as the man at the door, and said that man was six-feet tall and over 200 pounds, which is an inaccurate description of Plascencia. At the preliminary hearing Marvin explained he mistakenly identified Plascencia as the driver of the Honda.
After the car drove off, Maritza called 911. She also called Marvin's mother and told her "some cholos" had taken her son. Irma quickly came to the salon. LASD Detective Felicia Lopez arrived at about 5:00 p.m., and hooked up a device to record calls to the salon's phone line.
Marvin was taken to an abandoned house with graffiti on the walls. Two more men (neither of whom was Plascencia) arrived at the house. Partida gave a gun to a man wearing a mask and told him to guard Marvin. Partida bound Marvin's wrists together with tape, and told him to sit in a corner. Partida had Marvin use his cell phone to call his mother. He told Marvin to tell Irma his captors were not stupid, that they wanted the money and drugs and that it would be the last day of his life if they did not get them. Marvin called Irma and said "Mommy, they want the stuff." Partida took Marvin's phone away from him and went into another room.
A young woman came to the house at one point and had sex with Marvin's captors. They laughed and had a party.
At the abandoned house, Partida gave Marvin food and beer to calm his nerves. Marvin was afraid it would be the last day of his life. At one point, Partida grabbed a can that may have contained gasoline and threatened to burn Marvin alive so he understood "that they were serious." About 6:00 p.m., Partida put Marvin into a different car. Partida got into the back seat with Marvin, guarding him. Three other people were in the car, none of whom was Plascencia. Marvin was told to duck down and did not see where they went.
When they arrived at the new destination, Marvin's hands and feet were tied with duct tape and something was put in his mouth. The driver told Marvin it would be the last day of his life if his mother did not give them the money and drugs. Marvin was then put in the trunk of an old Buick with gray primer parked in a residential driveway. Black electrical tape was wrapped around his head and mouth. Marvin did not hear anything from inside the trunk. He found something metal, cut his hands and feet free, and pushed into the car's interior. Marvin escaped about 2:00 a.m. He ran until he found a police station. When Marvin got to the police station he had electrical tape around his neck. Later, Marvin identified a residence on East 41st Street as the location where he was placed in the Buick's trunk. He spent about eight hours in the trunk of the car before he escaped.
The recorded calls and ransom demands
Maritza and Irma received several calls about Marvin on the salon's line and on their cell phones. No cell phone calls were recorded. Lopez believed some of the calls involved drugs. During one call a male told Maritza, "Old hag. Son of a bitch, I want $280,000." Marvin called Irma three times. In one call, made by Marvin to Irma, he said "Mommy I'm fine. They want the stuff." In another call, someone asked for "crystal" and/or "cocoa." On another call, which Lopez did not hear and which was not recorded, the caller demanded 20 to 30 kilos. At trial, Lopez said it was highly unusual for someone to ask for that amount of drugs from a random family, and she had doubts about Irma's denial when asked about drug activity. Lopez did not trace the calls demanding drugs, and did not personally investigate Irma or her family for drug activity because she was not part of the drug crimes unit.
In one recorded call, an unknown male caller told Irma, "I have been giving you a hell of a lot of time, I already gave you two fucking hours . . . ." Irma said she was trying to get the money. The man told her, "I want crystal coke, . . . and I don't want just little shit." Irma said, "I am not going to get that for you but the money, I am going to take it to you . . . ." The man said he would give Irma one hour. Subsequent phone calls were made to Irma's cell phone. In one (or more) unrecorded call, Marvin told Irma the suspects wanted "20 to 30 kilos," or "50 kilos." In another call, the suspect said he would accept $10,000 until the rest of the money was available.
Marvin testified that his mother was convicted of selling controlled substances in December 2008. He claimed he never saw Irma deal drugs and did not know she sold drugs before her arrest in 2008.
Drop-off and surveillance
Later that evening, pursuant to an arrangement with Marvin's captors, Maritza, Irma, and Lopez (acting undercover) drove to a McDonald's at 108th and Central with $10,000 wrapped in a plastic bag. They parked in the lot, and a blue Nissan pickup truck with some lumber and other debris from construction work in the truck bed soon pulled up near them. Two men were in the cab of the truck. At trial, Lopez identified Plascencia as the driver. The passenger got out, took the money from Irma and said Marvin would be calling her. He told her Marvin would be killed if they called the police. The truck drove off and the women followed it for a short distance.
Lopez and another deputy sheriff, Marcelo Quintero, accompanied Irma to her house where one of her sons took $10,000 from a bundle of $33,000. The money was used to "buy time"
Lopez later also identified Plascencia in a six-pack photographic display as the driver of the blue pickup truck.
Lopez and another undercover deputy near the scene of the drop-off radioed a description of the truck and its license number. A team of undercover officers and a helicopter followed the erratic path travelled by the truck as it made its way to Orange County. Police did not stop the truck because Marvin remained captive. Eventually, the truck stopped at a residence in Anaheim. At trial, detective Richard Alvarado, one of the officers involved in the surveillance team following the truck, identified Plascencia as the driver of the truck. In May 2005, Alvarado picked Plascencia out of a six-pack as the driver of the truck. At the time Alvarado saw the truck only Plascencia was inside. It is not known when or where his passenger was dropped off.
Plascencia's stepfather and girlfriend are the registered owners of the pickup truck. Plascencia's stepfather testified that Plascencia has a construction business, and he uses the truck for his work. Plascencia's mother and his girlfriend co-own the four-door red Honda that Marvin identified as the car in which he was driven away from the salon. Plascencia and his girlfriend were the primary users of the Honda.
Post-incident identifications and investigation
After the incident, police showed Marvin several six-packs. Marvin identified Partida in one six-pack, and Plascencia in another. Initially, Marvin identified Plascencia as the man who drove the car from the salon. But, at the preliminary hearing, Marvin explained he was mistaken and said Plascencia was the man who stayed by the salon door. Marvin identified Montanez in a third six-pack, and said Montanez came to the abandoned house and drove him to the location where he was put into the trunk of a car. Marvin also told the police (mistakenly) that Montanez was at the salon.
On March 24, 2005, Detective Wayne Holston went to an abandoned house on Anzac Avenue in Watts based on information relayed to him by another officer. Marvin identified the house as the one where he had been held captive. There was trash on the lawns and inside the house and graffiti on the walls. Inside the house were some beer bottles, food wrappers, duct tape, a cigarette butt and a chair. Graffiti on one inside wall said "Gato." The cigarette butt was recovered and booked into evidence. Subsequent scientific testing showed that DNA on the cigarette butt matched Partida's DNA. When they followed the blue pickup after it left the lot at McDonald's, officers saw the truck drive near the abandoned house on Anzac Avenue where Marvin was held captive and also drive past the house on East 41st Street where he had been left in the trunk of a car.
Credit cards
In 2005, Sandra Serrato was convicted of grand theft for fraudulent use of a credit card. At the time of her arrest, police found credit cards in Serrato's possession that did not belong to her. Serrato said she got the credit cards from different people. Serrato knew Partida as "Gato." At trial, Serrato testified she did not recall getting any credit cards from Partida and denied having told the police she received credit cards from him. She also denied telling the police Partida obtained the credit cards during a robbery. Serrato testified she was unable to remember things because the events had occurred years earlier when she had been under the influence of drugs.
In April 2005, Gisela Moreno was living with Sandra Serrato when police found some credit cards at their residence and arrested them. As some point before that, Moreno and Serrato went to the house of their friend Mona Montanez. Partida, whom Moreno also knew as "Gato," was at Mona's house with Mona's brother. Serrato did not have the credit cards when she went to Mona's house, but she had them when she left. Detective Holston was one of the officers who searched Serrato and Moreno's residence on April 28, 2005. He recovered a number of credit cards and bank cards in the name of Marvin Reyes. Serrato told Holston she got the credit cards from Partida on March 24, 2005.
The Defense
Partida did not present a defense case. The only evidence offered by Plascencia related to Marvin's photographic identification of Montanez as one of the men who had been at the salon.
DISCUSSION
1. The motion to sever was properly denied
Plascencia contends the trial court erred in denying his motion for severance of his trial from Partida's. We conclude otherwise.
We reject Partida's attempt to join Plascencia's appellate arguments with respect to Plascencia's motion to sever and the Pitchess motion. An appeal by Partida as to these issues has been forfeited by his failure to interpose his own objections or to join Plascencia's motions below. (See People v. Wilson (2008) 44 Cal.4th 758, 793.) In addition, Partida lacks standing to complain about denial of the motion to sever, as the predicate grounds for that motion relate only to Plascencia. (See People v. Mitcham (1992) 1 Cal.4th 1027, 1048.)
a. Pretrial proceedings
Before trial, Plascencia moved to sever his trial from Partida's. Plascencia argued that Partida could offer testimony to exonerate him if they had separate trials. The exonerating testimony was based on alleged statements Partida made in an "off the record" police interview on August 8, 2005. An LASD report of that interview was attached to the prosecution's opposition to the motion.
During that interview, conducted in the presence of his trial attorney, Partida denied involvement in the kidnapping. He told detectives that on the day of the incident he drank a lot of beer and went to the abandoned house on Anzac Avenue where he and his friends sometimes partied. When he arrived, there were several Hispanic men at the house, some of whom he did not know. He stayed for 90 minutes drinking beer and left with his girlfriend. While he was at the house, he saw a Hispanic male sitting on the floor; his hands and feet were bound with duct tape. The man appeared relaxed and he seemed to be enjoying himself. Partida said two brothers who worked for Irma were responsible for the kidnapping. Partida identified Montanez (his brother-in-law) from a photograph. Partida also viewed a photograph of Plascencia; he said he had seen him around but did not know his name. According to Plascencia's counsel, Partida's attorney told him Partida would testify that he was at the abandoned house but that Plascencia was not there, and that Partida first saw Plascencia at the arraignment in this case.
At a hearing on another matter in June 2007, Plascencia's counsel informed the trial court he had just learned from Partida's attorney that Partida told LASD Detective Michael Soop that Plascencia was not present and he did not know who Plascencia was. During that hearing Partida agreed to disclosure of the interview and told the trial court "Yes. I told [the detective] I didn't know these guys." Soop was ordered to make a report of the interview. His report accompanied Plascencia's motion to sever.
At a hearing on the severance motion, which was combined with a hearing on other issues, Soop testified about the interview of Partida. He said Partida never told the detectives Plascencia was not involved in the kidnapping. Partida's attorney was asked whether Partida would testify on Plascencia's behalf if separate trials were ordered. This exchange followed:
"The Court: [to Partida's attorney] . . . As counsel, . . . are you prepared to and is Mr. Partida prepared to assure the court and counsel that Mr. Partida will testify unconditionally at the end of any trial that he has by himself first regardless of the outcome in that trial?
"[Partida's attorney]: No, Your Honor.
"The Court: And if there should be a hung jury in this case, or if there is a conviction in that case, can you assure the court and counsel that your client would testify in the second trial?
"[Partida's attorney]: If it is a hung jury, definitely not. In the event of conviction, until his appellate rights are exhausted, I don't think—right now, from what I'm hearing, he is reluctant. So I don't think I can make that assurance to the court." The severance motion was denied.
b. Legal standard
"'There is a statutory preference for joint trial of jointly charged defendants. (§ 1098.) "A 'classic' case for joint trial is presented when defendants are charged with common crimes involving common events and victims."' [Citation.]" (People v. Cleveland (2004) 32 Cal.4th 704, 725-726.) We review a ruling on a motion for separate trials for abuse of discretion (id. at p. 726), confining our review to facts presented to the trial court in connection with the motion. (People v. Price (1991) 1 Cal.4th 324, 388.) "'Under Penal Code section 1098, a trial court must order a joint trial as the "rule" and may order separate trials only as an "exception."' [Citation.]" (Cleveland, at p. 726.)
In denying the motion to sever the trial court applied the six factors listed in People v. Isenor (1971) 17 Cal.App.3d 324 (Isenor), to be considered in determining whether to sever based on the claim that a codefendant will offer exonerating testimony. Those factors are: "(1) Does the movant desire the testimony of the codefendant; (2) will the testimony be exculpatory; (3) how significant is the testimony; (4) is the court satisfied that the testimony itself is bona fide; (5) on the basis of the showing at the time of the motion, how strong is the likelihood that, if the motion were granted, the codefendant will testify; and (6) what is the effect of the granting in terms of judicial administration and economy?" (Id. at p. 332.)
Here, apart from the first factor, the court found the Isenor factors weighed against severance. As for the first factor, it was clear Plascencia desired Partida's testimony.
With respect to the second factor, the court was not convinced Partida's testimony would be exculpatory. In the interview Partida denied any involvement in the kidnapping, but he never indicated whether he knew Plascencia was involved, let alone that he knew he was not. Nor was Partida's statement that he did not know Plascencia exculpatory. If Partida admitted having been involved in the kidnapping, and also said he did not know Plascencia, his statement may have been exculpatory since Partida presumably would know the people with whom he committed the crime. But Partida denied involvement in the crime. Logically, it does not follow that because Partida did not know who Plascencia was Plascencia could not have been involved in the crime. Plascencia also maintains that the fact that Partida did not identify Plascencia as one of the men at the abandoned house was exculpatory. But Plascencia could have participated in the crime without going to that house. Indeed, Marvin never claimed Plascencia was at the abandoned house. Rather, Plascencia's involvement stems from his presence at the salon when Marvin was abducted, and having driven the truck used to collect the ransom money. The court was correct that the answer to the question of whether Plascencia's testimony in another trial would in fact exculpate Partida was, at best, "unknown."
Third, the court also found that whether the expected testimony was significant was "not all that clear." If a jury in a separate trial believed Partida was not involved in the crime, then Partida's testimony that he did not know Plascencia could help Plascencia by negative implication. On the other hand, for the reasons discussed above, the testimony still may not have been of significant use to Plascencia even if the jury found it credible. And, if the jury disbelieved Partida's claims regarding his lack of involvement in the kidnapping, it might also have disbelieved his claim that he did not know Plascencia.
On the fourth factor, the trial court had significant doubts whether Partida's testimony would be "bona fide" since his denial of involvement in the crime was self-serving and contradicted by compelling evidence that he was one of the perpetrators. The court had serious concern with "credibility issues about whether . . . Partida [was] being all that forthcoming and all that complete."
It was the fifth factor—the question of how strong the likelihood was, if the motion was granted, Plascencia really would testify—which caused the court the "greatest concern." At the hearing on the motion, Partida's counsel told the court Partida was, at best, reluctant to testify in a separate trial. He also said his client would "definitely not" testify if his separate trial ended in a hung jury, nor did he believe Partida would agree to testify until his "appellate rights" were exhausted.
Partida's counsel was clearly and appropriately looking out for his client's interests. Any testimony by Partida at a separate trial could potentially be used against him in the event of a retrial or in a proceeding challenging his conviction. The court noted that "sword of Damocles" would remain hanging over Partida's head until the case was final, which could take years. In addition, Plascencia's severance motion was premised on Partida's case proceeding to trial first. But there was no guarantee the two trials would proceed in that fashion, and neither defendant "had [the] right to dictate the scheduling of trials to their advantage." (People v. Conerly (2009) 176 Cal.App.4th 240, 251.) In the end, the court concluded there was "no reasonable probability [Partida] would give testimony even if granted severance," and "as far as [the court is] concerned, element no. 5 is a factor which overwhelmingly indicates that severance should not be granted in this case." That conclusion was not inappropriate. "The absence of substantial proof that a codefendant would be willing to testify for the defendant at a later date is, in itself, grounds for denying a motion for severance. [Citations.]" (Isenor, supra, 17 Cal.App.3d at p. 334.)
The sixth factor addresses the impact of severance on judicial administration. Here the court was concerned about avoiding trauma to Marvin and his family members if they were forced to testify about the kidnapping in two trials, as well as the "duplication of resources" that would result from two lengthy trials, weighed against its determination that there was "any kind of real basis for believing that we are going to get anywhere with" severance.
On this record, we find the denial of the severance motion was not an abuse of discretion. The trial court carefully considered the Isenor factors in exercising its discretion, and properly found Plascencia made an insufficient showing that Partida would give exonerating testimony on his behalf if the court granted his motion. (See People v. Conerly, supra, 176 Cal.App.4th at pp. 250-253 [applying Isenor factors and finding that trial court did not abuse its discretion in denying severance].)
2. Sufficient evidence supports Plascencia's conviction for kidnapping for ransom
Plascencia insists his conviction for kidnapping for ransom as an aider and abettor must be reversed because there is insufficient evidence to prove he had knowledge of the kidnapping or the specific intent to detain Marvin for ransom.
"'"In reviewing [a claim regarding] the sufficiency of the evidence, we must determine 'whether, after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.' [Citation.]"'" (People v. Carter (2005) 36 Cal.4th 1114, 1156.) We review the whole record to determine whether it discloses substantial evidence "'"'such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.' [Citation.]"'" (Ibid.)"'If we determine a rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt, the due process clause of the United States Constitution is satisfied [citation], as is the due process clause of . . . the California Constitution. . . .' [Citations.]" (Ibid.)The same standard applies in a case based in part on circumstantial evidence (People v. Lee (1999) 20 Cal.4th 47, 58), which commonly forms the basis for a determination of intent (see People v. Beaver (2010) 186 Cal.App.4th 107, 115.)
Here, the jury was instructed on the elements of kidnapping for ransom in accordance with CALJIC 9.53, as follows:
"Defendants are accused in Count 1 of having violated Penal Code section 209(a), a crime.
"Every person who seizes, confines, abducts, conceals, kidnaps, carries away, holds, or detains another person by any means whatsoever with the specific intent to hold or detain that person for ransom, reward, or to exact from another any money or valuable thing, is guilty of a violation of Penal Code section 209(a), a crime.
"In order to prove this crime, each of the following elements must be proved:
"1. A person was seized, confined, abducted, concealed, kidnapped, carried away, held, or detained; and
"2. The seizure, confinement, abduction, concealment, kidnapping, carrying away, or detention of that person was done with the specific intent to hold or detain that person for ransom or to obtain something of value from another."
The jury was also instructed on simple kidnapping.
Plascencia argues there is insufficient evidence to sustain his conviction for kidnapping for ransom because there was conflicting and non-credible evidence as to whether he was present at the salon when Marvin was abducted, speculative evidence that the car used to transport Marvin from the salon was registered to members of his family, no evidence he had any connection to anyone involved in the kidnapping and, even though he was identified as the driver of the pickup in which his passenger collected a bag filled with $10,000, no evidence he knew about the ransom demand or the contents of the bag. We cannot agree.
First, Marvin identified Plascencia at trial as one of the men present at the salon when he was abducted; he was the one who stood by the door. Marvin also testified that Plascencia was one of the men in the car that took him away, though his testimony varied as to whether Plascencia was in the front or rear passenger seat. Even if neither Maritza or Petrona was able to place Plascencia at the salon, Marvin's identification was sufficient evidence to permit the jury to determine that Plascencia was one of the perpetrators. (See People v. Young (2005) 34 Cal.4th 1149, 1181 [absent physical impossibility or inherent improbability, the testimony of one witness may support a conviction].) In addition, two LASD detectives identified Plascencia as the driver of the pickup truck that came to the McDonald's lot to collect the ransom money. Given evidence that Plascencia both participated in Marvin's abduction and later drove to a designated location to collect the ransom money (both times using cars registered to his family members), the jury could reasonably infer he was a participant in Marvin's kidnapping, knew the nature of the crime, and committed the crime with the specific intent to obtain a ransom. (See People v. Campbell (1994) 25 Cal.App.4th 402, 409 [defendant's presence at the crime scene, and his companionship and conduct before and after the offense are relevant to determining whether he is aider and abettor].)
At one point during cross-examination, Plascencia's counsel pressed Marvin about contradictions in his story regarding whether Plascencia had been in the front or rear passenger seats, or even in the Honda at all. Apparently flustered, Marvin responded that Plascencia "wasn't in the car." Apart from this instance, Marvin's testimony did not vary with respect to his claim that Plascencia had been physically present in the car— registered to Plascencia's mother and girlfriend—that whisked him away from the salon.
The record contains sufficient evidence to sustain Plascencia's conviction for kidnapping for ransom.
3. The trial court fulfilled its responsibilities regarding the Pitchess motion
Plascencia asks this court to review the sealed transcript of the in camera hearing on his Pitchess motion to determine whether the trial court properly denied disclosure of all relevant documents. We find the trial court fulfilled its responsibilities.
Plascencia filed a Pitchess motion, seeking personnel records for Detectives Soop and Holston concerning any matters related to "racial prejudice, dishonesty, false arrest, illegal search and seizure, fabrication of charges and/or evidence, and/or morally lax character." The trial court granted an in camera hearing and review of records as to the bulk of Plascencia's request.
The court refused to examine the records for racial bias finding Plascencia failed to demonstrate good cause for production of such discovery.
Following the in camera hearing, proceedings held in open court reflect that the trial court found "[t]here [was] absolutely no discoverable information to be provided. [¶] And to make it even more crystal clear, even taking into account all of the arguments and requests of [counsel], there [was] nothing even close to any and all of that information. So there [was] nothing to be disclosed."
Trial courts have wide discretion when ruling on motions to discover police officers' personnel records. (People v. Samayoa (1997) 15 Cal.4th 795, 827.) We have reviewed the contents of the sealed transcript of the June 20, 2008 in camera hearing. The transcript constitutes an adequate record of the trial court's review of the documents provided to the court in that hearing. Based on our review of the court's findings, we conclude the court properly exercised its discretion in denying discovery. (People v. Mooc (2001) 26 Cal.4th 1216, 1228-1229.) The trial court conducted a diligent review of pertinent documents in the detectives' personnel files before concluding the files contained no discoverable evidence. There was no error.
4. The court was not required to instruct on false imprisonment
Partida, whose trial attorney requested that the jury be instructed on the lesser included offense of false imprisonment, contends the trial court erred when it refused that request. Plascencia, who also requested the instruction, joins Partida as to this assertion of error.
A trial court must instruct on lesser included offenses if the evidence raises a question as to whether all of the elements of the charged offense are present and there is substantial evidence to justify a conviction of the lesser offense. But the court has no such duty when there is no evidence that the offense is less than that charged. (People v. Breverman (1998) 19 Cal.4th 142, 154, 162.) "[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.] '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. [Citations.]" (Id. at p. 162.)
False imprisonment is a lesser included offense of kidnapping for ransom. (People v. Chacon (1995) 37 Cal.App.4th 52, 65; People v. Magana (1991) 230 Cal.App.3d 1117, 1120-1121.) Both offenses require a nonconsensual detention or confinement of the victim; neither requires asportation. (People v. Macinnes (1973) 30 Cal.App.3d 838, 841-842; People v. Greenberger (1997) 58 Cal.App.4th 298, 368, fn. 56.)
Partida contends a false imprisonment instruction was in order because the jury could have disbelieved at least part of the prosecution's theory that Marvin was abducted from the salon and then involuntarily moved again from the abandoned house to the trunk of the car from which he eventually escaped. Partida maintains the jury could have rejected Marvin's testimony because he was a drug trafficker himself, or because he was "covering" for his mother, a purported drug trafficker. Accordingly, he claims the court erred by refusing to instruct on false imprisonment because the jury could have disbelieved that Partida participated in a kidnapping scheme (because Marvin may have gone willingly from the salon to work out a deal, or because none of the Reyes family witnesses were credible), but believed he was present at the abandoned house (because DNA on a cigarette butt recovered there matched Partida's DNA), which would have rendered him guilty of false imprisonment. We disagree.
Three witnesses—Marvin, his wife and his wife's sister—identified Partida as one of the men who abducted Marvin from the salon. Marvin and Maritza testified the man in the salon had a tattoo on his neck. Marvin testified the tattoo said "Watts up." During trial, Partida displayed a tattoo on his neck that says "Watts up." Marvin testified that Partida grabbed him, pushed him into the car and hit him on the head with a gun. Inside the car, Partida stole Marvin's credit cards, which ended up in Serrato's possession. Partida held Marvin captive under armed guard at the abandoned house for several hours, where he bound his wrists and threatened his life. Partida guarded Marvin in the car that took him to a location where he was forced into a car trunk. Unlike at least one other individual at the abandoned house who covered his face with a mask, Partida made no effort to hide his face during the hours he spent with Marvin, and it is not likely Marvin's identification of him was mistaken.
We reject Partida's contention that the jury may have disbelieved Marvin's version of events or the testimony of Maritza and her sister, and determined the incident was a dispute over an illegal drug transaction. Partida's counsel made this argument at trial. He argued the incident arose from a narcotics transaction, that Marvin left willingly with the men to work out a problem, and that everyone was discussing business and partying at the abandoned house. But, if the jury had believed this version of events and rejected Marvin's testimony, Partida would have been acquitted. Partida argues the jury could reject Marvin's version of events but convict him of false imprisonment because of the DNA match on the cigarette butt. Not so. If the jury rejected Marvin's story and the evidence showed only that Partida was present at the abandoned house, that fact alone would not establish that he committed false imprisonment. Thus, we agree with the Attorney General that there is no reasonable version of the evidence that would permit the jury to find Partida did not participate in Marvin's kidnapping, and also find that he falsely imprisoned him. (See People v. Ordonez (1991) 226 Cal.App.3d 1207, 1233 ["a lesser included offense instruction on false imprisonment is not required where the evidence establishes that defendant was either guilty of kidnapping or was not guilty at all"].)
Plascencia joins Partida's assertion that the trial court should have instructed on false imprisonment. He contends that as to him, the evidence was "weak and inconsistent" as to whether he was involved in the asportation of Marvin from the salon to the house, and there was no evidence he was involved in transporting Marvin from the abandoned house to any other location. We again note that defendants were convicted of kidnapping for ransom, an offense which does not require asportation. Moreover, Plascencia fails to describe any scenario supported by the evidentiary record under which the jury could have found him guilty only of false imprisonment. We also disagree with Plascencia's assertion that the evidence he was involved in Marvin's abduction from the salon was weak. Marvin consistently identified Plascencia as one of the men in the car that transported him from the salon to the abandoned house. Plascencia was either guilty of the kidnapping for ransom as an aider and abettor or he was not guilty at all.
DISPOSITION
The judgments are affirmed.
JOHNSON, J. We concur:
MALLANO, P. J.
ROTHSCHILD, J.