Opinion
E039967
5-18-2007
THE PEOPLE, Plaintiff and Respondent, v. LUIS ANTONIO JIMENEZ, Defendant and Appellant.
H. Reed Webb, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Mary Jo Graves, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Peter Quon, Supervising Deputy Attorney General, and Quisteen W. Shum, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
In a parking lot around dusk on December 20, 2004, defendant Luis Antonio Jimenez grabbed Briana Lupian (Lupian or victim) by her forearm while she was standing between two parked cars. When she had the temerity to fight back by punching him twice in the face, he retaliated by grabbing her in a "bear hug" and forced her from the back fender of his vehicle towards the cars drivers side door. Defendant was charged with and convicted of attempted kidnapping. (Pen. Code, §664/207.)
All further statutory references will be to the Penal Code unless indicated.
On appeal, defendant argues that (1) there was insufficient evidence of an attempt to kidnap, (2) the trial court abused its discretion by excluding a defense witness who would have impeached the victims identifications of defendant, and (3) the trial court violated its sua sponte duty to instruct on false imprisonment. We conclude that there was sufficient evidence that defendant had the specific intent to attempt kidnapping the victim. We also conclude that the trial court abused its discretion by excluding impeachment evidence of the victims identification of defendant, but the defendant was not prejudiced by the exclusion. Finally, we determine that the trial courts was not required to instruct on attempted false imprisonment. As defendants assignments of error are without merit, we will affirm the judgment.
FACTUAL AND PROCEDURAL HISTORY
Lupian worked at a temporary staffing agency located in a shopping center. Around 5:00 p.m. on December 20, 2004, Lupian went to make a purchase at a grocery store across the parking lot. After completing her purchase around 5:20 p.m., it was beginning to get dark. She began making her way back to her office. She crossed a street, went past the parking lot entrance, and passed through several rows of parked cars. As she passed in between two parked cars, defendant came up behind Lupian and said with a Hispanic accent, "Excuse me," "I didnt mean to scare you." He came out of a red car that was on Lupians right. The cars were facing towards the grocery store. Defendant and Lupian began talking while she was standing at the drivers side door of the red car, with defendant leaning inches away from the red cars rear bumper.
Lupian turned around and looked directly into defendants face. Standing five to six feet away from her, defendant asked Lupian how to get back to the freeway. Lupian had heard a car door open behind her as she passed the car, but did not hear a car door close. While thinking of what would be the correct direction to the freeway, Lupian momentarily closed her eyes. She heard a fast movement which caused her to open her eyes. Defendant had grabbed hold of her left forearm. She tried pulling away from defendant with her whole body in the direction of her office and jerked her arm back. Defendant reacted by pulling her back toward his direction. As they struggled, they faced each other and their sides were leaning against the red car. They started struggling at the red cars rear fender and defendant pulled Lupian past the gas tank area but the forward momentum paused before they reached the red cars drivers door. Lupian thought she "was going to be put in through the drivers side."
Having had some boxing training, Lupian took her right fist and hit defendant hard twice in the face. When defendant ended up behind her, he reached around her chest and grabbed onto her with a bear hug, pinning Lupians arms down at her sides.
Prior to this incident, Lupian had seen a television show about self-defense that demonstrated how to get out of an attack. Remembering that advice, Lupian, squirmed, dropped to her knees and was able to free herself from defendants grasp. To regain his hold over her, defendant grabbed Lupians ponytail. She was able to elude his grasp by slipping out of her ponytail holder. She stood up, ran away from defendant, and retreated to her office where a coworker called the police.
DISCUSSION
A. There was Sufficient Evidence of Defendants Specific Intent to Kidnap the Victim
Defendant contends that the prosecution failed to provide substantial evidence that the victims assailant intended to move her a substantial distance. Citing People v. Daly (1992) 8 Cal.App.4th 47, defendant asserts there were no words or commands ordering the victim to "come with me," or "get in the car," to show that the attacker intended to kidnap the victim. Hence, he claims that the circumstances surrounding the attack were ambiguous, and at best, the aggressor only committed a battery.
"In assessing a claim of insufficiency of evidence, the reviewing courts task is to review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence-that is, evidence that is reasonable, credible, and of solid value-such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] The federal standard of review is to the same effect: Under principles of federal due process, review for sufficiency of evidence entails not the determination whether the reviewing court itself believes the evidence at trial establishes guilt beyond a reasonable doubt, but, instead, whether, after viewing 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.] The standard of review is the same in cases in which the prosecution relies mainly on circumstantial evidence. [Citation.]" (People v. Rodriguez (1999) 20 Cal.4th 1, 11.)
The elements of simple kidnapping are: "(1) a person was unlawfully moved by the use of physical force or fear; (2) the movement was without the persons consent; and (3) the movement of the person was for a substantial distance. [Citation.]" (People v. Jones (2003) 108 Cal.App.4th 455, 462, fn. omitted; § 207, subd. (a).)
"An attempt to commit a crime consists of (1) the specific intent to commit the crime, and (2) a direct but ineffectual act done toward its commission. [Citations.]" (People v. Cole (1985) 165 Cal.App.3d 41, 47-48.) While mere preparation is insufficient, acts which indicate an unambiguous intent and are an immediate step prior to executing that specific crime constitute an attempt. (People v. Jones (1999) 75 Cal.App.4th 616, 627.) "When [defendants] acts are such that any rational person would believe a crime is about to be consummated absent an intervening force, the attempt is underway. . . ." (People v. Dillion (1983) 34 Cal.3d 441, 455.) The attempted crime would have been accomplished if outside circumstances had not stopped it. (People v. Carpenter (1997) 15 Cal.4th 312, 387.)
For the offense of attempted kidnapping, the prosecution need not prove that the victim was moved a substantial distance, but must show whether the defendant attempted to move the victim a substantial distance. (People v. Cole, supra, 165 Cal.App.3d at p. 50.) "The distance [the victim] was moved is immaterial-asportation simply is not an element of the offense." (Ibid.)
Defendants citation to People v. Daly,supra, is inapposite. The charge in Daly was kidnapping, not attempted kidnapping, as it is here. Daly did not find that forcing a victim to travel 40 feet across a parking lot to place her into the defendants van was a completed kidnapping. However, it did find the crime was an unsuccessful kidnapping attempt that was frustrated when the victim broke free and ran away. It held that the evidence was sufficient to convict defendant of the lesser-included offense of attempted kidnapping, as we have in this case. (People v. Daly, supra, 8 Cal.App.4th at p. 57.)
Here, there was substantial evidence that defendant specifically intended to kidnap Lupian, but did not complete the crime because she was able to squirm out of his grasp. Defendants claim that the record lacks substantial evidence of the intent to move Lupian a substantial distance is only relevant to the completed crime of kidnapping but not to the issue of attempt. The attempted crime was committed when the suspect grabbed Lupians forearm and tried to pull her from the rear fender of his car and past the gas tank on his way towards the drivers side door. This was a direct, ineffectual act performed towards kidnapping Lupian, but for her eluding his bear hug. The attempt to block her escape occurred when he tried to hold onto her ponytail after she wriggled out of his grasp. He tried to regain control over Lupian and stop her escape, but her slick hair prevented him from maintaining a firm grasp on her.
Nor was it necessary to have the assailant say words to the effect of "youre coming with me" in order to prove the specific intent to kidnap. Words are not necessary to show the suspects intent. While verbal commands such as "get in the car" would be direct evidence that the suspect intended to kidnap the victim, circumstantial evidence is admissible to prove intent. In this case, the circumstantial evidence unambiguously shows that the suspect specifically intended to kidnap Lupian.
The victim heard a car door open behind her, but did not hear a door closing. A strange man approached her from behind and distracted her by asking her directions. While conversing, defendant was leaning inches away from the red cars rear bumper. When the victim closed her eyes, defendant saw an opportunity and grabbed her forearm when she was unaware of her surroundings. Defendant pulled the victim in the direction away from safety (the office where she was traveling to) and towards him. She tried pulling away from defendant with her whole body in the direction of her office. Defendant reacted by pulling her back in his direction.
Defendant, who was inches away from the red cars rear fender, leaned on his side against the red car. The victim was also at the cars rear fender with her side also leaning against the car. Defendant began pulling her from the back of the car to move her towards the drivers side door. The victim believed that he was trying to push her through the drivers door. Defendant moved the victim, against her will, past the red cars rear fender, along the length of the drivers side of the car, past the gas tank, and ended up at a point between the drivers door and the gas tank.
To release defendants hold on her, the victim hit defendant twice in the face. For a second time, defendant renewed his intention to kidnap her. He attempted to reassert control over her by standing behind her, clasping his arms around her chest in a bear hug and pinning her arms to her sides to prevent her from escaping.
The victim successfully wriggled out of defendants grip by dropping to her knees. However, defendant was not deterred, and for a third time tried to restrain the victim by grabbing the part of her ponytail closest to her head and pulling her back towards him. The victims slick hair did not provide sufficient traction for defendant to keep his grip, allowing the victim to finally retreat by jumping up and away from defendant.
At oral argument, appellate counsel contended our citations to the record contained factual inaccuracies. Among his complaints, he lists the following errors: (1) "the incident occurred when it was dark," and not "it was beginning to get dark," (2) the struggle occurred "in an aisle," and not "between rows of parked cars near the drivers side door," (3) Lupian thought she "was going to be put in through the drivers side", and (4) the rental car companys custodian of records did not testify the company rented an "old" red car to defendant. The People, on the other hand, agreed with this courts recitation of the facts, except for the statement "the rental company did not rent an `old vehicle to defendant." We have returned to a review of the record and find the recitation of facts in the factual and procedural history are correct, except for the one concession by respondent that the rental car was not "old."
Page 65 of the Reporters Transcript is an example of Lupian testifying the incident occurred when "it was beginning to get dark," and not "when it was dark":
"[The People:] When you left [the grocery store] and you walk in front of the entrance, was it dark outside?
"[Lupian:] Yes.
"[The People:] Was it pitch black like 10 oclock dark?
"[Lupian:] No.
"[The People:] Could you still see?
"[Lupian:] I could still see.
"[The People:] So the sun was, although down, it still lit up the sky a little?
"[Lupian:] Yes.
"[The People:] And those parking lights or streetlights, you dont know for sure if they were on?
"[Lupian:] Correct.
"[The People:] But was it dark enough that they should have been on?
"[Lupian:] Yes.
"[The People:] When youre walking through the cars, did it seem like it was really dark outside, like the lights werent on?
"[Lupian:] I dont recall."
See pages 64, 66-67, 73-74, 78-80 and 85 of the Reporters Transcript.
See page 91 of the Reporters Transcript.
See pages 149 and 153 of the Reporters Transcript. At page 79 of the Reporters Transcript Lupian, not the custodian of records for the rental company, uses the word "old" in her description of the subject car.
Appellate counsel argued that the evidence shows Lupian could not clearly see her attacker, thus causing her to mistakenly identify him. He attempts to selectively mine the record for evidence he contends undercuts the jurys finding that defendant was the assailant: the night was dark, the attack was quick, it came as a surprise, it was short in duration, there was a lapse in time between the incident and the identification, the assailant was a stranger, defendant did not exhibit facial injuries, and the car was not the defendants. However, pointing out these pieces of evidence does nothing more than demonstrate a factual dispute which has been construed differently by the jury. As it is our duty to indulge all inferences in support of the judgment, appellate counsels assertions are an inadequate basis upon which to challenge the jurys verdict.
During his oral argument, appellate counsel asserted it was not reasonable for the jury to infer defendant was attempting to move Lupian from a place of safety to a dangerous location. He maintains there was no evidence showing defendants intentions: it would be improper to find an attempted kidnapping occurs anytime there happens to be a struggle between two people near a car.
Contrary to his claims, defendants actions were not ambiguous. "`When a specific intent is an element of the offense it presents a question of fact which must be proved like any other fact in the case." (People v. Cole,supra, 165 Cal.App.3d at p. 48.) Specific intent must often be inferred from circumstantial evidence. (Ibid.) "`Whether the evidence presented at trial is direct or circumstantial . . . the relevant inquiry on appeal remains whether any reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt." (Id. at p. 49.)
Viewing the facts in a light favorable to the judgment, as we must, we find there was reasonable, credible, and solid evidence defendant attempted to move Lupian to a dangerous location. Lupian testified that a man came up behind her and she heard a car door open up behind her but did not close. Appellate counsel conceded this evidence was "a problem" for the defense.
It is not the fact that the struggle took place near a vehicle that constituted an attempted kidnapping. It was the combination of factors, including an open car door behind the victim that did not close, defendants appearance approaching her from the rear, and his forcing her in the direction of the open door, that show defendant harbored the specific intent to attempt kidnapping Lupian. This was corroborated by Lupians testimony, "And my thoughts were I was going to be put in through the drivers side." Accordingly, we find there was sufficient evidence to support the conviction.
B. Excluding Defendants Impeachment Evidence was Harmless Under Any Standard
At trial, Lupian testified that she gave a description of her attacker to the 911 dispatcher immediately after the incident. Ten to twenty minutes after the call was made, an officer arrived and Lupian again delivered a description of her attacker. Approximately two weeks later, an officer performed a photo lineup by handing Lupian various photos of men, one at a time, wherein Lupian picked out defendant. Approximately three months later, Lupian went to a live lineup where again she picked out defendant as the suspect. At trial, Lupian identified defendant as her assailant and testified that she was 100 percent sure of her identification of the right suspect.
As previously mentioned, the defense theory at trial was a "SODDI" defense. To establish this defense, defendants trial counsel attacked Lupians identification of defendant as her kidnapper. Lupian had prior discussions with David Vaca (Vaca), a public defender investigator, wherein Lupian voiced her concerns about identifying the wrong suspect.
An acronym for "some other dude did it." (People v. Benjamin (1975) 52 Cal.App.3d 63, 72.)
Vaca had prepared a report documenting his interview with Lupian. Defense counsel asked Lupian questions about her interview with Vaca based on Vacas report. The prosecution objected to the questioning on the grounds that Vacas report was not provided by the defense as discovery to the prosecution. Defense counsel apologized for the omission, but stated Vaca reported that Lupian could not identify her attacker, so was surprised by Lupians testimony that she was 100 percent sure defendant was her attacker. Because defense counsel thought Lupian would testify that she was unsure of her attackers ID, she did not think that she had to turn over Vacas report because it would not have been inconsistent, and was not necessary to impeach Lupian. Only when Lupian testified that she was sure of her attackers ID did it become necessary to impeach Lupian and to use Vacas report for impeachment.
The trial court sustained the prosecutors objection to exclude Lupians statements to Vaca. It held that the defenses disclosure of Vacas report during the second cross-examination of Lupian was untimely and violated discovery rules.
The prosecution called Scott Currie (Currie), the detective who conducted the live lineup, as a witness. When the prosecutor asked Currie if Lupian identified the defendant as her assailant or only as the same man as in photo No. 3 in the photo lineup, Currie said Lupian identified defendant as her attacker and also stated that defendant was the same person as photo No. 3.
Defense counsel wanted to call Vaca to the stand to testify that Lupian made two statements to him: (1) she was not 100 percent positive of who grabbed her, and (2) the person in the live lineup matched photo No. 3 in the photo lineup. Vaca would also testify that Lupian did not identify the person in live lineup as the person who grabbed her in the parking lot.
The trial court ruled that defense counsel could not call Vaca as a witness. It determined that defense counsel knew there was an inconsistency between the police report and the investigators report. The defense knew from the police report that during the live lineup Lupian said, "I am sure it was No. 3" and "It looked like—No. 3 looks like the picture." Defense counsel also knew that Lupian told Vaca, "thats the same guy in the picture" and not "[t]hats the same guy in the parking lot." It ruled that the defense was tardy in disclosing the investigators report. The defense had reason to turn over the investigative report because defense counsel would obviously ask Lupian about her inconsistent identifications to the officer and to the investigator. It noted that the defense elected to hold onto the report and improperly failed to turn it over to the prosecution as discovery.
On appeal, defendant contends that the trial court erred by (1) ruling that the late disclosure of Vaca and calling him as defense witness was untimely, and (2) even if the discovery statute was violated, the trial court abused its discretion in barring further cross-examination of Lupians statements and excluding the defense investigator from testifying about those statements. He also argues that the evidentiary exclusions violated his Sixth Amendment right to confront his accusers and that the error was not harmless beyond a reasonable doubt.
The defense theory at trial was that defendant was not the attacker. He asserts that excluding the evidence prejudiced him because it allowed Lupian to be represented in a false light, i.e., that she was certain in identifying defendant as the correct suspect, instead of being uncertain, under stress, and afraid of identifying the wrong person. Lupians uncertain and wrong identification was corroborated by the lack of any facial injuries to defendant and the faded red car with old bumper stickers was not the one rented by defendant.
Section 1054 et seq. delineates the parameters for discovery in criminal cases. The defense must disclose to the prosecution the names and addresses of persons it intends to call as witnesses at trial and any reports they made. (§ 1054.3, subd. (a).) The California Supreme court has defined the phrase "intends to call" to mean persons the party reasonably anticipates it is likely to call at trial. (In re Littlefield (1993) 5 Cal.4th 122, 130 (Littlefield).)
During oral argument, appellate counsel pointed out that the deputy public defender did not become aware the investigators report contained inconsistent statements until Lupian testified she was "100 percent certain" defendant was the assailant during the prosecutions direct examination. Because defense counsel was surprised at Lupians certainty, the defense did not "reasonably anticipate" it was likely to call Vaca as a trial witness to impeach Lupian with her prior inconsistent statements that she was not sure defendant was the suspect who grabbed her.
The defense is not required to disclose statements it obtains from prosecution witnesses that may be used to refute the prosecutions case during cross-examination. (Hubbard v. Superior Court (1997) 66 Cal.App.4th 1163, 1165 (Hubbard).) However, it must disclose any witness it reasonably anticipates calling at trial. (Littlefield, supra, 5 Cal.4th at p. 130.) Although defense counsel stated she "had no intention of calling Mr. Vaca" at the time she prepared her witness list, the trial court found Vaca would testify to inconsistent statements supporting his sole defense—misidentification.
The holding in Hubbard is derived from a footnote in Izazaga v. Superior Court (1991) 54 Cal.3d 356, 377, fn.14: "[T]he defense is not required to disclose any statements it obtains from prosecution witnesses that it may use to refute the prosecutions case during cross-examination. Were this otherwise, we would be presented with a significant issue of reciprocity." (Hubbard, at pp. 1167-1168.)
A trial courts ruling on discovery matters is reviewed under an abuse of discretion standard. [Citation.]" (People v. Ayala, supra, 23 Cal.4th at p. 299.) We conclude the trial court did not abuse its discretion in excluding Vaca as a witness. It performed an analysis by comparing the police report recording Lupians statement, "`Im sure it was No. 3" with the investigators report where Lupian said she was not sure who grabbed her. The trial court could find defense counsel reasonably anticipated it was likely that she would call Vaca as a witness. The core of the defense theory was identity. It is illogical to believe that Lupian would only testify she was "unsure" when the police report indicated she was "sure." Defense counsel would have deemed (and indeed did conclude) it was necessary to impeach Lupians certainty. The trial court did not abuse its discretion in excluding Vaca as a witness for a discovery rule violation.
Pretrial discovery rules have the laudatory purpose of eliminating incomplete, misleading, or deliberately fabricated testimony. (Taylor v. Illinois (1988) 484 U.S. 400, 411-412.) When presenting witnesses, both parties must comply with rules of evidence and procedure to assure both fairness and reliability in the ascertainment of guilt and innocence. (Id. at pp. 411, fn. 15.) A trial judge does not violate a defendants right to have witnesses testify if he excludes testimony that was purposefully not disclosed prior to trial and that nondisclosure was motivated by a desire to gain a tactical advantage by reducing the ability to cross-examine a witness or obtain rebuttal evidence. (Id. at pp. 411, 415.)
California has adopted this view. Precluding a defendant from presenting evidence is a measure of last resort and is appropriate where there has been significant prejudice and the failure is willful. (People v. Edwards (1993) 17 Cal.App.4th 1248, 1265.)
If a moving party shows that the discovery statutes were not complied with, and also shows that it complied with the informal discovery provision, the moving party may request that a trial court sanction the non-complying party with any enforcement order, including but not limited to, immediate disclosure, contempt proceedings, delaying or prohibiting the testimony of a witness or the presentation of real evidence, a continuance, informing the jury of the noncompliance. (§ 1054.5, subd. (b).) However, prohibiting a witness from testifying can only be a remedy if all other sanctions have been exhausted. (§ 1054.5, subd. (c).)
We find that the trial court abused its discretion in sanctioning the defense with preclusion, without first conducting an analysis of whether any other remedy under section 1054.5 was viable. It excluded the evidence outright, and not as a last resort after considering if other sanctions were available.
A trial court may consider a wide range of sanctions in response to discovery violations. (People v. Ayala,supra, 23 Cal.4th at p. 299.) It must "consider the extent to which exclusion of particular evidence may undermine the reliability of the fact finders conclusion." (People v. Gonzales (1994) 22 Cal.App.4th 1744, 1757.) It can exclude the testimony of a witness only where all lesser sanctions are ineffective. (Edwards, supra, 17 Cal.App.4th at pp. 1264-1265; § 1054.5) Here, the trial court failed to assess whether the prosecution suffered any prejudice resulting from the late disclosure.
The sanction of exclusion is available only if the violation of the discovery statute caused significant prejudice and was based upon willful conduct designed to obtain a tactical advantage. (People v. Gonzales,supra, 22 Cal.App.4th at pp. 1757-1758.) "If the truth is to be served, the failure to disclose, at least where not willful, should not be punished by the suppression of evidence, but by giving the offended party a proper opportunity to meet the new evidence." (People v. McRae (1967) 256 Cal.App.2d 95, 104.)
Furthermore, section 1054.5, subdivision (c) "allows a trial court to preclude the testimony of a witness `only if all other sanctions have been exhausted." (Edwards, supra, 17 Cal.App.4th at p. 1264.) "Such `other sanctions are described in subdivision (b) of section 1054.5 as `including, but not limited to, immediate disclosure, contempt proceedings, delaying or prohibiting the testimony of a witness . . . continuance of the matter, or any other lawful order." (People v. Hammond (1994) 22 Cal.App.4th 1611, 1625.) Defendant bears the burden of demonstrating that such alternative lesser sanctions was inadequate. (People v. Carpenter (1997) 15 Cal.4th 312, 386-387.) Even in the case of the need to punish a willful discovery violation, there must be substantial and irremediable prejudice to the other party in order to warrant exclusion. (People v. Gonzales, supra, 22 Cal.App.4th at pp. 1757-1758.)
The trial court did not assess whether excluding Lupians and Vacas testimony regarding the alleged uncertain identification would have undermined the jurys fact-finding ability. It did not evaluate whether immediate disclosure would have been sufficient. It is unclear from the record whether Lupian could have been recalled to the stand to testify in rebuttal. It did not determine if fining defense counsel or holding her in contempt would be appropriate. It did not consider whether a continuance was in order to allow the prosecutor to investigate defendants misidentification claims. Defense counsel informed the trial court that she had turned Vacas report over to the prosecution the preceding Thursday and made Vaca available for questioning. Finally, it did not consider whether informing the jury about the nondisclosure was an equilibrating remedy.
However, under any standard, we believe any error in excluding a part of Lupians testimony, and the whole of Vacas testimony, was harmless. (Chapman v. California (1967) 386 U.S. 18, 24; People v. Watson (1956) 46 Cal.2d 818, 836.) All the evidence regarding Lupians uncertainty was admitted, allowing defense counsel to strenuously argue in closing that Lupian did not clearly see her attacker that evening and the trauma of the event prevented her from recognizing the true suspect, causing her to wrongly identify defendant.
During cross-examination, defense counsel elicited from Lupian the details of her conversation with Vaca. Lupian admitted she told Vaca she was hesitant to come to court and identify the wrong person, but clarified that it was an internal fear she had. She also told the prosecutor she was hesitant to come to court for the same reason. She told Vaca that an officer told her they wanted her to view a photo lineup of a person who had been arrested for lewd conduct. Lupian conceded that she told the police at the live lineup she was concerned about implicating the wrong person and she had some doubt who attacked her. She was afraid on the day of the live lineup that none of the people would be the person who assaulted her. She acknowledged that she said, "`Im just afraid to make an ID [¶] . . . [¶] . . . because of picking the wrong person and sending someone innocent to jail." She explained that before she saw people in the lineup, she feared, "what if I [dont] recognize this person?" In essence, Lupians testimony confirmed defendants assertion that she was afraid of identifying the wrong suspect.
However, in court Lupian was certain that defendant was her assailant. She testified that when she viewed the lineup, defendant was not hard to recognize. She was very sure and knew that was the same person that she had picked from the picture. She reported to Vaca she was 100 percent certain defendant was the one who attacked her.
Barring defense counsel from further cross-examining Lupian and excluding Vacas testimony did not present Lupian in a false light to the jury. We conclude the evidentiary preclusion of testimony was harmless.
C. The Trial Court Properly Instructed the Jury with CALJIC No. 2.92
Defendant contends that the trial court erred by giving a CALJIC No. 2.92 instruction regarding believability of witnesses. He alleges that the giving of the instruction was not supported by any evidence, and is contrary to the scientific research of experts in the field of eyewitness identification. Because there was no evidence to support the instruction that witness confidence is a valid indicator of the accuracy of eyewitness identification, giving CALJIC No. 2.92 was an improper pinpoint instruction that lessened the prosecutions burden of proof. Finally, defendant asserts that the trial court should have modified CALJIC No. 2.92 to eliminate "witnesss confidence" as a factor the jury should consider, because the current state of scientific knowledge states that witness confidence does not equal accuracy.
Defendant did not object to the jury instruction. The failure to raise an objection at trial waives the issue for appellate review. (People v. Bolin (1998) 18 Cal.4th 297, 326; People v. Johnson (1993) 6 Cal.4th 1, 52; People v. Adan (2000) 77 Cal.App.4th 390, 394.) He has also waived his claim that the instruction should have been modified since he failed to request any modification in the trial court below. A defendant may not complain on appeal that an instruction correct in law and responsive to the evidence should have been modified because he failed to request appropriate clarifying or amplifying language. (People v. Catlin (2001) 26 Cal.4th 81, 149; People v. Guiuan (1998) 18 Cal.4th 558, 570.) "[A] defendant is not entitled to remain mute at trial and scream foul on appeal for the courts failure to expand, modify, and refine standardized jury instructions." (People v. Daya (1994) 29 Cal.App.4th 697, 714.)
Even if the issues were not waived, we are duty bound to follow California precedent approving the use of the certainty factor as expressed in CALJIC No. 2.92. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) The California Supreme Court has approved the use of CALJIC No. 2.92 in cases in which witness identification is a crucial issue. (People v. Wright (1988) 45 Cal.3d 1126, 1141-1143 (Wright); see also, People v. Johnson (1992) 3 Cal.4th 1183, 1231-1232.)
In Wright, the California Supreme Court stated a "defendant may be entitled to a special instruction specifically directing the jurys attention to other evidence in the record — e.g., facts developed on cross-examination of the eyewitnesses — that supports his defense of mistaken identification and could give rise to a reasonable doubt of his guilt." (Wright, supra, 45 Cal.3d at p. 1141.) It held that "a proper instruction on eyewitness identification factors should focus the jurys attention on facts relevant to its determination of the existence of reasonable doubt regarding identification, by listing, in a neutral manner, the relevant factors supported by the evidence." (Ibid.)
Wrights majority rejected the dissents conclusion that CALJIC No. 2.92 was misleading because scientific studies determined there was no correlation between a persons certainty and accuracy. (Wright,supra, 45 Cal.3d at pp. 1141, 1159 (dis. opn. of Mosk, J.).) It specifically stated "[t]he instruction should not take a position as to the impact of each of the psychological factors listed." (Id. at p. 1141.) The majority concluded that CALJIC No. 2.92 "effectively inform[s] the jury [of the appropriate factors] without improperly invading the domain of either jury or expert witness," and that the effect of any particular factor "is best left to argument by counsel, cross-examination of the eyewitnesses, and expert testimony where appropriate." (Wright, at p. 1143.)
CALJIC No. 2.92 does not tell the jury how much weight to assign to any factor, or to give any weight at all to this particular factor. The jurors remain free to use their common sense and their life experience in evaluating the credibility of a witness. (See People v. Johnson (1992) 3 Cal.4th 1183, 1231-1232.) An instruction that requires a jury to follow a specific scientific theory would "`improperly invade the domain of the jury, and confuse the roles of expert witnesses and the judge. [Citations.]" (People v. Gaglione (1994) 26 Cal.App.4th 1291, 1302-1303, overruled on other grounds in People v. Martinez (1995) 11 Cal.4th 434, 452.)
Moreover, defendant was not prejudiced by the giving of CALJIC No. 2.92. He benefited from including the uncertainty of identification factor in CALJIC No. 2.92, because it supported his argument that the Lupians identification was uncertain.
Finally, it was not reasonably probable that deleting or modifying the instruction would have resulted in a different outcome of the trial. Lupians identification of the defendant was consistent throughout the case. Although she had expressed a natural fear that she did not want to "finger the wrong guy," her feeling did not mean she actually picked out the defendant by mistake. Lupian consistently identified on four separate occasions: she accurately described him to the officer immediately after the incident, she identified him at the photo lineup, at the live lineup, and in court. Lupians description of defendants "mildew smell" was corroborated by Currie. A custodian of record for a car rental company testified that defendant had rented a red car from December 1 through December 24, that was extremely dirty when it was returned.
D. The Trial Court Was Not Required to Instruct on Attempted False Imprisonment
Defendant contends that the trial court was required to instruct on attempted false imprisonment, a lesser included offense of attempted kidnapping. He argues that there was no evidence of a specific intent to move Lupian against her will for a substantial distance. Because the asportation element of kidnapping was missing, the trial court should have instructed on false imprisonment as there was substantial evidence that Lupians personal liberty was interfered with. Finally, defendant claims in his reply brief that "a properly instructed jury would have reasonably concluded that the suspect was `copping a feel and not attempting to kidnap the victim."
A colloquial expression meaning to grab someone in a sexual manner.
In its respondents brief, the prosecution agrees with respondent that false imprisonment is a lesser included offense of kidnapping. (People v. Magana (1991) 230 Cal.App.3d 1117, 1120-1121; People v. Ordonez (1991) 226 Cal.App.3d 1207, 1233.) It also concedes defendants claim that attempted false imprisonment is a lesser-included offense of attempted kidnapping. For purposes of this appeal, we will assume, without deciding, that this is correct.
"`[A] trial court must instruct on the general principles of law relevant to the issues raised by the evidence. [Citations.] . . . 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." (People v. Sedeno (1974) 10 Cal.3d 703, 715, overruled on other grounds in People v. Breverman (1998) 19 Cal.4th 142.) "[A] lesser included instruction need not be given when there is no evidence that the offense is less than that charged. [Citation.]" (People v. Mendoza (2000) 24 Cal.4th 130, 174.) "`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. Breverman, supra, 19 Cal.4th at p. 162.)
Defendant claims that the trial court should have instructed on false imprisonment as a lesser included offense of kidnapping. The only element of kidnapping not required for false imprisonment is asportation. (People v. Kelly (1990) 51 Cal.3d 931, 959.)
We turn to an analysis of whether there was insufficient evidence that defendant attempted to move the victim a substantial distance to support the attempted kidnapping charge and, therefore, the jury should have been instructed on attempted false imprisonment. (People v. Lasko (2000) 23 Cal.4th 101, 111 [failing to instruct sua sponte on a lesser included offense and theory which are supported by the evidence is reviewed for prejudice under People v. Watson (1956) 46 Cal.2d 818, 836].) The issue turns on whether there was substantial evidence that defendant committed attempted false imprisonment. "`Substantial evidence is evidence sufficient to "deserve consideration by the jury," that is, evidence that a reasonable jury could find persuasive. [Citation.]" (People v. Lewis (2001) 25 Cal.4th 610, 645.)
We find there was no evidence to support a conviction for false imprisonment.
The issue at trial was not whether defendant was guilty of attempted kidnapping or a lesser crime. The defense theories at trial were (1) defendant was not the attacker, (2) the victim wrongly identified him, and (3) he was somewhere else at the time of the assault. He offered no evidence that his only purpose was to forcibly detain Lupian in the parking lot. He never argued that he only intended to falsely imprison Lupian and did not intend to kidnap her. He did not request a false imprisonment instruction.
As we discussed previously, the evidence showed that defendant was attempting to move the victim away. Defendant struck when Lupians eyes were closed, taking her by surprise. He first held onto her forearm, then grabbed her from behind in a bear hug, and then pulled her ponytail. Defendant did not merely detain her in one spot in the parking lot, but tried to move her towards the car door. The evidence revealed defendants specific intent to move Lupian out of the parking lot and into the car. Contrary to defendants claims, there was also no evidence that he intended to grope Lupian in a sexual manner. There was no evidence where defendants hands lay when he grabbed her from behind in a bear hug; no evidence was presented that defendant had grabbed her breasts. Nor was there any evidence that grabbing Lupians forearm or ponytail was done so defendant could "cop a feel."
Defendant was either guilty of attempted kidnapping, or not guilty. Because it was uncontradicted that defendant tried to move the victim through the car door, the probability that the jury would have concluded that he merely intended to imprison her is not reasonable.
We conclude that the trial court had no sua sponte duty to instruct the jury on the offense of attempted false imprisonment. Based on this record, the trial court had no duty to instruct on attempted false imprisonment as a lesser included offense of attempted kidnapping.
DISPOSITION
The judgment is affirmed.
We concur:
HOLLENHORST, Acting P. J.
KING, J.