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People v. Amato

California Court of Appeals, Fourth District, Third Division
Apr 29, 2009
No. G040510 (Cal. Ct. App. Apr. 29, 2009)

Opinion

NOT TO BE PUBLISHED

Appeal from a judgment of the Superior Court of Orange County No. 02CF2766, Francisco P. Briseno, Judge.

Sylvia Whatley Beckham, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Gary W. Schons, Assistant Attorney General, Pamela Ratner Sobeck and Christopher P. Beesley, Deputy Attorneys General, for Plaintiff and Respondent.


OPINION

RYLAARSDAM, J.

After a jury convicted him of simple kidnapping (Pen. Code, § 207, subd. (a); all further statutory references are to this code unless otherwise stated) and failed to reach an unanimous decision on charges of forcible rape (§ 261, subd. (a)(2)), forcible oral copulation (§288a, subd. (c)(2)), and kidnapping to commit a sex offense (§ 209, subd. (b)(1)), defendant Enrico Leonard Amato pleaded guilty to forcible rape and admitted he had one prior serious felony (§ 667, subd (a)) and one prior strike (§ 667, subds. (d), (e)(2)). He was sentenced to 25 years in prison. Defendant argues the court erred by failing to instruct sua sponte on lesser included offenses of attempted kidnapping and false imprisonment, and denied him due process by admitting evidence of prior domestic abuse under Evidence Code section 1109, and instructing with the corresponding jury instruction. Finding no merit to either claim, we affirm.

FACTS

After R.D. dated defendant for a few months, one evening while they were out she told him she no longer wanted to see him. When defendant asked to talk to her in his car she agreed. Once she was inside, defendant locked the doors and drove off, despite the victim’s demand he let her out. She tried several times during the drive to get out when the car was stopped but defendant even ran red lights to prevent this. He threatened to take her somewhere she could not escape or drive over a cliff. All the while he demanded she confess she had cheated on him. Trying to calm him, the victim began telling defendant she did not want to break up, whereupon he drove to his house where they had sex and she spent the night.

The next day the victim called defendant and told him their relationship was finished. Defendant did not abide by her wishes but repeatedly called, leaving messages that he would kill himself, and sent flowers. The victim changed her phone number and reported the conduct to the police. She obtained temporary and permanent restraining orders. But defendant continued to attempt to contact the victim, following her, repeatedly calling her at work, and sending gifts and flowers.

One evening defendant waited outside her home in his car and followed her after she left with a friend. When she stopped in a parking lot, defendant blocked her car. She told defendant she was calling the police, at which point he took her phone, got into her car, grabbing the keys and her pepper spray. Threatening her with it, he ordered her to drive, which she did. When they arrived in an isolated area, he tied the victim’s hands and put her in the passenger seat after she begged him not to put her in the trunk. He then drove south, telling her he was taking her to Mexico where he would kill both of them.

To appease defendant the victim agreed to reconcile with him; this calmed him and he untied her. Based on the victim’s suggestion, they got a room at a hotel in La Jolla, where the victim called a friend to tell her what had happened. Despite the victim’s statement she believed defendant would take her home and the police did not need to be involved, her friend called the police. When the victim told defendant she did not want to have sex, he forced himself on her.

Then, fearing the police had been called, defendant wanted to leave. After the victim reassured him the police did not know and she would not reveal anything if he took her home, defendant began driving north toward the victim’s home but after some time reversed direction to go south. When defendant would not take her home, despite her demands, she was able to convince him to stop at the same hotel. After he fell asleep she escaped and called the police.

DISCUSSION

1. Instruction on Lesser Included Offenses of Kidnapping.

Defendant argues the court should have instructed the jury sua sponte as to lesser included offenses of attempted kidnapping and false imprisonment on the simple kidnapping charge, even though defense counsel agreed the evidence did not support such an instruction. The simple kidnapping was based on defendant’s last set of acts where, when he was driving the victim home from La Jolla, he changed his mind, turned the car around, and began driving south again, whereupon the victim began screaming at him to take her home.

The court does have a duty to instruct sua sponte on lesser included offenses when there is “‘substantial evidence’ [citation], ‘“which, if accepted . . ., would absolve [the] defendant from guilt of the greater offense” [citation] but not the lesser’ [citation].” (People v. Waidla (2000) 22 Cal.4th 690, 733.) Although attempted kidnapping and false imprisonment are lesser included offenses of simple kidnapping (People v. Daly (1992) 8 Cal.App.4th 47, 57 [attempted kidnapping]; People v. Magana (1991) 230 Cal.App.3d 1117, 1120-1121 [false imprisonment]), the evidence in this case does not support giving such an instruction.

Under Section 207, subdivision (a), one is guilty of kidnapping if he “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 . . . .” A primary element of this crime is asportation, which “must be ‘substantial in character’ [citation], but . . . the trier of fact may consider more than actual distance.” (People v. Martinez (1999) 20 Cal.4th 225, 235.) Other factors also include “the ‘scope and nature’ of the movement or changed environment, and any increased risk of harm.” (Id. at p. 236.)

Defendant claims the jury could have found that defendant only “attempted to move the victim against . . . her will” because even though he threatened to take her to Mexico they stopped at the hotel where the victim was able to escape. This is not substantial evidence that would exculpate defendant on the kidnapping count and support only an attempted kidnapping charge. Defendant held the victim in the car against her will while driving on the freeway toward Mexico. The fact that he stopped short of that destination does not transform the crime into a mere attempt. The destination did not matter; it was the acts of defendant in forcibly detaining the victim in the car and driving in a direction opposite her home despite her demand to be taken there. That the victim originally willingly got into the car when defendant agreed to take her home is irrelevant. Further, that they finally stopped at the hotel at the victim’s request is not determinative.

The nature and scope of the movement were significant; driving a car on the freeway is not an insubstantial act. Further, it would have been very dangerous for the victim to have attempted to escape from the car at that point. (People v. Martinez, supra, 20 Cal.4th at p. 236.)

We also reject the argument that the facts could support false imprisonment instead of kidnapping. Defendant does not explain the basis of his theory, other than to state that a kidnapping cannot be committed “without restraining the victim’s liberty,” that is, false imprisonment. (§ 236.) But here there was evidence of asportation, which is not an element of false imprisonment. (People v. Cooks (1983) 141 Cal.App.3d 224, 333.) Thus, instructions on lesser included offenses were not required.

2. Evidence Admitted Under Evidence Code Section 1109 and CALJIC No. 2.50.02

Defendant challenges admission under Evidence Code section 1109 of his prior acts of domestic violence toward another girlfriend as a violation of due process; he also claims the court erred when it gave the corresponding jury instruction, CALJIC No. 2.50.02. The argument does not persuade.

The court allowed the introduction of evidence that when Pamela M., a woman defendant had dated for about three years in the early 1990’s, broke off their relationship, defendant did not accept it. He repeatedly called her at home and work, disrupting her job, trying to persuade her to reconcile. He made several threats, including killing her and himself. This behavior did not cease once Pamela obtained a temporary restraining order. When she decided to move to get away from defendant, he hid in her trunk as she was leaving and followed her to her new residence, after which she had him arrested.

The court gave CALJIC No. 2.50.02 regarding introduction of that evidence. It defined domestic violence and abuse and instructed that if the jury found defendant had committed a prior act of domestic violence it could “infer that the defendant had a disposition to commit other acts involving domestic violence” and could further find defendant “was likely to commit and did commit similar acts of domestic violence.” The instruction cautioned that this evidence alone was insufficient to prove the pending charges beyond a reasonable doubt and that was only one piece of evidence to consider. It further instructed the evidence could not be considered for any other reason.

Evidence of prior criminal acts is ordinarily inadmissible to show a defendant’s disposition to commit such acts. (Evid. Code, § 1101, subd. (a).) However, the Legislature has created exceptions to this rule in cases involving sexual offenses (Evid. Code, § 1108) and domestic violence (Evid. Code, § 1109). As defendant acknowledges, our Supreme Court has held that Evidence Code section 1108 conforms with the requirements of due process. (People v. Falsetta (1999) 21 Cal.4th 903, 915.) It has also ruled that CALJIC No. 2.50.01, an instruction explaining the application of section 1108, is proper. (People v. Reliford (2003) 29 Cal.4th 1007, 1012-1013.) “The analysis in Falsetta has been used to uphold the constitutionality of Evidence Code section 1109 [citations] and the analysis in Reliford has been used to uphold the constitutionality of the corresponding CALJIC instruction, CALJIC No. 2.50.02. [Citation.] In fact, this court has held ‘[f]or the purposes of evaluating the constitutional validity of the instructions, there is no material difference between CALJIC No. 2.50.01 and CALJIC No. 2.50.02. [Citation.]’ [Citation.]” (People v. Reyes (2008) 160 Cal.App.4th 246, 251.) Thus, there was no error.

DISPOSITION

The judgment is affirmed.

WE CONCUR: SILLS, P. J., IKOLA, J.


Summaries of

People v. Amato

California Court of Appeals, Fourth District, Third Division
Apr 29, 2009
No. G040510 (Cal. Ct. App. Apr. 29, 2009)
Case details for

People v. Amato

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. ENRICO LEONARD AMATO, Defendant…

Court:California Court of Appeals, Fourth District, Third Division

Date published: Apr 29, 2009

Citations

No. G040510 (Cal. Ct. App. Apr. 29, 2009)