Opinion
D055636
02-06-2012
THE PEOPLE, Plaintiff and Respondent, v. MARIO LOPEZ OJITO, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. No. SCD200720)
APPEAL from a judgment of the Superior Court of San Diego County, Jeffrey F. Fraser, Judge. Affirmed as modified with directions.
Mario Lopez Ojito appeals after a jury convicted him of kidnapping Jose Navarrete for ransom, reward, or extortion, assault with a semiautomatic firearm, making a criminal threat, and robbery. The jury also found true that the offenses were committed for the benefit of a criminal street gang and that a principal personally used a firearm in the kidnapping and robbery. He challenges his convictions on multiple grounds, contending: (1) the evidence was insufficient to support his kidnapping conviction; (2) the trial court erred in failing to instruct the jury on the lesser included offense of false imprisonment on the charge of kidnapping for ransom; (3) the trial court erred in denying his request to bifurcate the trial on the gang enhancements from the substantive offenses and in admitting gang-related evidence; and (4) the trial court's imposition of concurrent sentences on his convictions for robbery, assault with a semiautomatic firearm, and making criminal threats violated the Penal Code section 654 prohibition against multiple punishments because those crimes were indivisible from the kidnapping. (Undesignated statutory references are to the Penal Code.) We conclude the trial court erred in failing to stay the sentences on the convictions for making a criminal threat and assault with a semiautomatic firearm, and we therefore modify the judgment to stay the sentences on those counts. In all other respects, the judgment is affirmed.
FACTUAL AND PROCEDURAL BACKGROUND
In August 2006, a group of men kidnapped Apolinar Lopez. The men told him they were kidnapping him because he had money. They transported Apolinar to a gated community and placed him in a small room. A man then asked Apolinar for his home telephone number. Apolinar's wife, Maria Lopez, later received a phone call from one of the kidnappers asking for $100,000 in exchange for Apolinar's return.
Maria left the house to inform Apolinar's brother, Bernardo, that Apolinar had been kidnapped. She also went to several friends' houses seeking to borrow money, including Jose's home. Jose, who was also known as "Chelin," was not home at the time. Jose's wife was there but did not answer the door for twenty or thirty minutes and then refused to lend Maria any money.
When Maria returned to her house, she listened to a voicemail message left by the kidnappers. The message mentioned the names "Chelin," "Chelito" and "Cheliz". After hearing the message, Maria called Bernardo and told him that she thought Jose was involved in Apolinar's kidnapping. Maria requested that Bernardo bring Jose to her house to listen to the message.
Jose was at home when he saw his cousin, Javier Navarrete, and another man arrive. Javier called out to Jose and told him to come outside because some people wanted to talk to him. Jose saw that Ojito and Frederico Castaneda had also arrived. When Jose went outside, Ojito and Castaneda told him that his nickname, "Chelin," was mentioned in a telephone message. The men then told Jose to come with them and if he had nothing to do with the message, they would bring him back. Ojito told Jose not to call the police because his family would be harmed and people were watching his house.
Jose was frightened and decided to go with the men. He told his wife not to call the police and got into a truck with Ojito and Castaneda. They drove to Javier's residence and Castaneda told Jose to get out of the vehicle. Everyone went inside Javier's house and, at some point, Jose observed Ojito and Castaneda having a conversation with Bernardo. A few minutes later, Castaneda told Jose and Javier to get into a truck and instructed a thin man to accompany them. As they drove away, the thin man pulled out a semiautomatic gun and told Jose "not to do anything."
The men drove to another house. Once inside, Jose saw Ojito, Castaneda, and Bernardo. Jose asked to hear the message that included his name, but Ojito ordered that he be tied up. One of the men tied Jose's hands and taped over his mouth. Castaneda then proceeded to hit Jose. At some point, the men passed a gun around, and Jose saw a gun resting on Ojito's leg. Maria was also in the house, but she ignored Jose when he tried to speak to her.
Castaneda took Jose's wallet from his pocket and gave the $600 in it to Ojito and the thin man, stating, "[t]his is extra." Ojito or Castaneda also took identification cards from Jose's wallet and, after looking at the cards, Ojito stated that it was not the first time they had gone to Mexico to get people. Ojito took Javier's hat that had the letter "L" on it and stated, "Why is he wearing the 'L'? Only we can. Only we can." Ojito mentioned that " ['L'] is for Logan."
Castaneda accused Jose of knowing where Apolinar was being held, and Bernardo demanded that Jose provide information about the location. However, Jose stated that he did not have any information to tell them. Castaneda kicked Jose in the groin and others punched him in the head and kicked him in the chest. When Jose did not provide any information, Ojito ordered that Jose's son be picked up to make Jose talk. Ojito also told Jose that there was "no way out," which Jose understood to mean that Ojito would kill him. At some point, Ojito brought a saw into the room and told Jose that he was going to cut off his feet and hands, make Jose kill his children, and then kill Jose.
Ojito asked Jose if he knew anyone in Los Angeles and showed him a phone number with the area code "760." When Jose mentioned that his brother-in-law had family in the Los Angeles area, Ojito and Castaneda decided that Javier should go with the other men to pick up Jose's brother-in-law. Ojito later held a telephone to Jose's ear and Jose asked the person on the other end of the call to let him speak to Apolinar, stating that the men he was with threatened to kill his children.
During the kidnapping, Apolinar spoke to Maria on the phone. Maria told Apolinar that Jose was at their house with Bernardo and other people. She also told Apolinar about the message with Jose's nickname. Apolinar then spoke to Jose on the phone and asked him for information about what was happening. Jose said that he did not know the people that were with Apolinar. Apolinar's kidnappers hit him and told him to tell Maria to let Jose go because he had nothing to do with the kidnapping. One of the men said that Jose was his cousin and was not at fault for anything. The man then asked Apolinar for $10,000 and said the problem was over.
Shortly after the telephone call, police arrived at the house were Jose was being held. At that point, Ojito grabbed scissors and cut the tape from Jose's hands. Jose struggled with Castaneda, but was able to free himself and open the door for the police. Ojito and the other men ran towards the rear of the house. An officer pursued Ojito and eventually detained him at a nearby residence. Ojito was wearing a hat with an "L" on it and had a large "Logan" tattoo on his neck.
DISCUSSION
I. Sufficiency of the Evidence to Support Kidnapping Conviction
Ojito contends the evidence was insufficient to support his kidnapping conviction because the prosecution did not demonstrate that Jose was detained for ransom, reward, to commit extortion, or to obtain money or other valuable thing from another person. We disagree.
In determining the sufficiency of the evidence to support a conviction, "the relevant question is 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." (Jackson v. Virginia (1979) 443 U.S. 307, 319.) "[T]he court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Johnson (1980) 26 Cal.3d 557, 578.)
Section 209, subdivision (a), provides: "Any person who seizes, confines, inveigles, entices, decoys, abducts, conceals, kidnaps or carries away another person by any means whatsoever with intent to hold or detain, or who holds or detains, that person for ransom, reward or to commit extortion or to exact from another person any money or valuable thing, or any person who aids or abets any such act, is guilty of a felony . . . ." "Because the statute is phrased in the disjunctive, it describes four different types of aggravated kidnapping: (1) for ransom; (2) for reward; (3) to commit extortion; and (4) to exact from another person any money or valuable thing." (People v. Ibrahim (1993) 19 Cal.App.4th 1692, 1696.) Unlike the first three types of kidnapping, the fourth requires the "money or valuable thing" be obtained from a third party. (Id. at pp. 1696-1697.)
Courts have generally held that aggravated kidnapping under section 209 "requires the deprivation of a person's liberty for the purpose of obtaining financial gain." (People v. Greenberger (1997) 58 Cal.App.4th 298, 367; see also People v. Ordonez (1991) 226 Cal.App.3d 1207, 1227, fn. 12.) "Financial gain" includes money as well as other items of value. (See People v. Kozlowski (2002) 96 Cal.App.4th 853, 867-868 [personal identification number used to access automatic teller machines constitutes "property" for purposes of kidnapping for extortion]; People v. Hill (1983) 141 Cal.App.3d 661, 668 [noting that "ransom" does not have a statutory definition and can include money or cargo]; People v. Greenberger, supra, 58 Cal.App.4th at p. 368 [stating that "reward" is not a technical term and "generally 'implies something given in return for good or evil done or received' "].)
Here, the People charged Ojito with kidnapping "to exact from relatives and friend[s] of said Jose N. money and other valuable things, in violation of Penal Code section 209(a)." (Capitalization omitted.) In its closing argument, the prosecution argued that Jose and Javier were "bargaining chips" for Apolinar's release and were used to reduce the amount demanded for Apolinar's return from $100,000 to $10,000. There was substantial evidence to support the kidnapping conviction based on this theory that Apolinar or the reduced ransom demand were the "valuable thing" demanded by Ojito and the other men in exchange for Jose's release. (§ 209, subd. (a).)
The evidence reveals that Ojito held a telephone to Jose's ear, which allowed Jose to inform Apolinar's kidnappers that he was being detained and that the men he was with threatened to kill his children. Apolinar's kidnappers later hit him and told him to tell Maria to let Jose go because he had nothing to do with the kidnapping. One of the men also said that Jose was his cousin. The man then asked Apolinar for $10,000 and said the problem was over. Based on this evidence, it is clear that Jose was used to secure Apolinar's release. The parties have not cited any authority and we have found none holding that a "valuable thing" for purposes of section 209, subdivision (a), cannot be a person, or must be money or something that can be directly converted into money. Regardless, however, Apolinar's release did have a direct monetary value of $100,000 because that was the amount demanded for his return. In fact, after Jose's phone call to Apolinar's kidnappers, the ransom demand for Apolinar's release was reduced from $100,000 to $10,000. Thus, in effect, Jose's kidnappers obtained a financial gain in the amount of $90,000.
Based on the foregoing, we conclude substantial evidence supported Ojito's kidnapping conviction because Jose was kidnapped "to exact from another person . . . [a] valuable thing," namely Apolinar's release for a reduced ransom. (§ 209, subd. (a).) Having found that there was substantial evidence to support the conviction on this theory, we need not consider Ojito's arguments concerning whether there was sufficient evidence of a ransom, reward, or extortion.
II. Instruction On Lesser Included Offense
Ojito argues the trial court had a duty to instruct on felony false imprisonment as a lesser included offense of kidnapping for ransom. He maintains there was substantial evidence from which the jury could conclude he committed the lesser offense of false imprisonment rather than the charged offense of kidnapping for ransom. We disagree.
In determining whether the court should have given a lesser included offense instruction, we apply the following settled principles: "[A] trial court must instruct the jury sua sponte on an uncharged offense that is lesser than, and included in, a greater offense with which the defendant is charged only if there is substantial evidence that, if accepted, would absolve the defendant from guilt of the greater offense but not the lesser." (People v. Waidla (2000) 22 Cal.4th 690, 737.) When " 'there is no evidence that the offense was less than that charged,' " there is no duty to instruct. (People v. Barton (1995) 12 Cal.4th 186, 196, fn. 5.) The California Supreme Court has explained that "the 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." (People v. Breverman (1998) 19 Cal.4th 142, 162; see also People v. Birks (1998) 19 Cal.4th 108, 118.) Of course, speculation is not evidence and will not warrant the giving of an instruction on a lesser included offense. (See People v. Mendoza (2000) 24 Cal.4th 130, 174; People v. Wilson (1992) 3 Cal.4th 926, 942.) We conduct an independent review of issues pertaining to instructions. (People v. Waidla, supra, 22 Cal.4th at p. 737.) Error in failing to instruct on a lesser included offense is reviewed for prejudice under People v. Watson (1956) 46 Cal.2d 818. (People v. Breverman, supra, 19 Cal.4th at pp. 149, 178.)
Here, we assume for sake of argument that felony false imprisonment is a lesser included offense of kidnapping for ransom. (See People v. Chacon (1995) 37 Cal.App.4th 52, 65 [concluding without discussion that false imprisonment is a lesser included offense of kidnapping for ransom]; People v. Magana (1991) 230 Cal.App.3d 1117, 1120-1121 [false imprisonment is lesser included offense of kidnapping].) Thus, we must consider whether there is substantial evidence from which a rational jury could conclude Ojito only committed false imprisonment because he lacked the specific intent to commit extortion or to exact a ransom, reward, money, or other valuable thing.
Here, there was no evidence that Ojito intended to commit only the lesser offense of false imprisonment. To the contrary, there was an abundance of evidence that, from the outset, Ojito had the specific intent to exact a valuable thing from Jose's friends or relatives. (See ante, part I.) He went to Jose's house and used threats to force Jose to go with him to listen to a telephone message concerning Apolinar. Once they arrived at their final destination, Ojito ordered that Jose be tied up, and the men proceeded to interrogate Jose about Apolinar's whereabouts. When Jose did not disclose Apolinar's location, Ojito threatened harm to Jose's children. Ojito later held a telephone to Jose's ear so that Jose could talk to Apolinar or his kidnappers to obtain Apolinar's release. Based on the evidence in this case, we conclude the trial court did not err in failing to instruct the jury on false imprisonment because there was no evidence that Ojito committed only the lesser offense.
Alternatively, even if the trial court should have instructed on the lesser offense, given the strong evidence of Ojito's specific intent, there is no reasonable probability the jury would have returned a verdict on the lesser rather than the greater offense. (See People v. Moye (2009) 47 Cal.4th 537, 556 [error in failing to instruct on lesser included offense may be harmless if evidence supporting judgment is relatively strong and evidence supporting different outcome is comparatively weak].) Accordingly, the alleged error was harmless.
III. Admission of Gang Evidence
A. Background
Prior to trial, Ojito requested to bifurcate the gang allegations from the trial, arguing that the gang-related evidence was highly prejudicial and should be excluded under Evidence Code section 352. The prosecution responded that the gang evidence was relevant to both the enhancements and underlying offenses and was necessary to show motive, intent, and the mental state of the victim. The trial court denied Ojito's request to bifurcate the trial.
In a subsequent hearing, Ojito argued that the gang evidence should be excluded altogether because the motive for the kidnapping was to obtain Apolinar's release and had nothing to do with gang membership. The trial court again denied the motion, noting that the evidence was relevant as to motive and the use of force or fear during the kidnapping.
At trial, San Diego Police Detective Eric Morales testified that Ojito was a documented member of the Logan Red Steps gang and Castaneda was a documented member of the Logan 30 gang. According to Detective Morales, it was not unusual for the different Logan gangs to associate with each other. The primary activities of the Logan Red Steps included committing robberies, homicides, burglaries, rapes, murders and kidnappings. Members of the Logan Red Steps and Logan 30 have committed kidnappings, rapes, robberies and murders together.
Detective Morales stated that a primary goal of gang members is to ensure that victims understand who is committing the offense against them. In the gang culture, committing violent crimes serves the purpose of gaining respect from rival gangs. Additionally, members of the community become aware of the particular gang members committing offenses and are placed in fear of reporting crimes to the police.
Ojito had multiple tattoos that are significant in the Hispanic gang culture, including an "LH" tattoo on his ear that stands for "Logan Heights" and a "Logan" tattoo on his neck. Ojito also had an "SE" tattoo under his eye that means "Southeast San Diego," an area that includes Logan Heights. Ojito's younger brothers are also part of a gang called "TNS" that claims territory in Logan Heights.
Detective Morales opined that the offenses in this case were committed in association with a criminal street gang because both Ojito and Castaneda were documented members of a criminal street gang and acted together. Additionally, during the crimes, Ojito wore a cap with an "L" on it and mentioned "Logan." Ojito's comment that only Logan members should wear the hat with "L" on it was to identify himself as a Logan gang member and intimidate Jose.
According to Detective Morales, Ojito and the other men worked together in interrogating and threatening Jose. Detective Morales opined that the offenses benefitted a gang because the members were able to achieve fear, respect and notoriety for their gangs. Further, the gangs benefitted financially when the men took money from Jose's wallet and gave it to the others, stating "[t]his is extra." That money could be used by the gang to purchase guns and drugs. B. Analysis
Ojito argues the trial court violated his constitutional rights to due process and abused its discretion by refusing to bifurcate trial of the substantive crimes from trial of the gang allegations and subsequently admitting gang evidence at trial. We disagree.
The primary consideration for the trial court in ruling on a request to bifurcate a sentence enhancement is whether the admission of evidence relating to the enhancement during the trial on the charged offenses would pose a substantial risk of undue prejudice to the defendant. (People v. Calderon (1994) 9 Cal.4th 69, 77-78 [prior conviction enhancement].) The determination of whether the risk of undue prejudice to the defendant requires bifurcation is within the sound discretion of the trial court. (Id. at p. 79.) On appeal, we review the trial court's ruling for an abuse of discretion, based on a review of the record that was before the trial court at the time of the ruling. (People v. Price (1991) 1 Cal.4th 324, 388.) However, even if the trial court's ruling was correct at the time it was made, reversal is required if the defendant shows that the failure to bifurcate resulted in " ' "gross unfairness" amounting to a denial of due process.' " (People v. Mendoza, supra, 24 Cal.4th at p. 162, quoting People v. Arias (1996) 13 Cal.4th 92, 127.)
Bifurcation of a sentence enhancement is generally not required where the evidence relevant to the enhancement is also relevant and admissible in the trial of the underlying offenses. (People v. Hernandez (2004) 33 Cal.4th 1040, 1048-1051 [criminal street gang enhancement]; People v. Calderon, supra, 9 Cal.4th at pp. 78-79 [prior conviction enhancement].) Thus, we consider whether the evidence relating to the gang enhancements was also admissible in the trial of the underlying offenses.
Gang evidence is admissible in the prosecutor's case-in-chief, regardless of whether there is a criminal street gang enhancement allegation, where such evidence is relevant to establish motive, intent or some fact other than the defendant's criminal propensity, provided that the probative value of the evidence is not substantially outweighed by its prejudicial effect. (People v. Williams (1997) 16 Cal.4th 153, 193; generally Evid. Code, § 352.) Because the admission of evidence of a defendant's participation in a criminal street gang is potentially inflammatory and creates a risk that the jury will improperly infer the defendant is guilty because he has a criminal disposition, the trial court should carefully scrutinize such evidence before admitting it. (People v. Williams, supra, 16 Cal.4th at p. 193.) The trial court is vested with wide discretion in determining the admissibility of evidence and its exercise of discretion under Evidence Code section 352 will not be disturbed on appeal absent a clear abuse. (People v. Wilson, supra, 3 Cal.4th at p. 938.)
Here, the gang evidence was relevant not only to the criminal street gang enhancements but also to the kidnapping, robbery and criminal threat offenses. Detective Morales's testimony was relevant to establishing the means by which the kidnapping took place, namely instilling fear in Jose and intimidating him. Additionally, the crime of making a criminal threat requires the victim "reasonably to be in sustained fear for his or her own safety or for his or her immediate family's safety." (§ 422.) Thus, the gang evidence was relevant to explain Jose's state of mind when Ojito threatened him and his children. Similarly, Detective Morales's testimony was pertinent to the robbery charge as that crime required that Jose's wallet be taken "by means of force of fear." (§ 211.) In addition to its relevance to the victim's state of mind, the gang evidence was also relevant to show Ojito's motive and intent in participating in the crimes, which was in part to gain respect for the gang and to in turn gain respect for himself within the gang. Given the level of significance of the gang evidence, the trial court did not err in concluding that its relevance was not substantially outweighed by its prejudicial effect. (See People v. Kipp (2001) 26 Cal.4th 1100, 1121 [evidence is prejudicial if it uniquely tends to evoke an emotional bias against the defendant without regard to its relevance on material issues].) Here, the gang enhancements were inextricably intertwined with the charged offenses in that the evidence was pertinent to motive, intent and the victim's mental state.
In our view, none of the evidence offered to prove the gang allegations was so minimally probative on the charged offenses, and "so inflammatory in comparison, that it threatened to sway the jury to convict regardless of defendant['s] actual guilt." (People v. Hernandez, supra, 33 Cal.4th at p. 1051.) Thus, the trial court did not abuse its discretion in denying Ojito's request to bifurcate the gang enhancements or in admitting the gang evidence at trial.
IV. Section 654
Ojito argues the trial court's imposition of concurrent sentences on his convictions for assault with a semiautomatic weapon, making a criminal threat and robbery violated section 654 because the conduct underlying those offenses was indivisible from the crime of kidnapping for ransom. We disagree with Ojito as to the sentence on his robbery conviction, but conclude the trial court erred in failing to stay the sentences and their enhancements on Ojito's assault with a semiautomatic weapon and criminal threat convictions.
Section 654 prohibits the imposition of multiple sentences where a single act or course of conduct pursuant to a single objective violates more than one statute. In such a situation, a defendant may be punished for only the most serious offense. (People v. Diaz (1967) 66 Cal.2d 801, 806.) However, if the evidence discloses that a defendant entertained multiple criminal objectives independent of and not merely incidental to each other, the trial court may impose punishment for independent violations committed in pursuit of each objective even though the violations shared common acts or were part of an otherwise indivisible course of conduct. (People v. Centers (1999) 73 Cal.App.4th 84, 98.) The principal inquiry in each case is whether the defendant's criminal intent and objective were single or multiple. (People v. Beamon (1973) 8 Cal.3d 625, 639.) Whether the defendant held multiple criminal objectives is a question of fact for the trial court, and its finding will be upheld on appeal if there is any substantial evidence to support it. (People v. Coleman (1989) 48 Cal.3d 112, 162.)
Here, substantial evidence supports the conclusion that Ojito's crimes of robbery and kidnapping were committed with independent criminal objectives. As we explained, Ojito's objective in kidnapping Jose was to obtain Apolinar's release and reduce the ransom demanded for Apolinar's return. (See ante, part I.) In committing the robbery, however, Ojito had a separate and distinct objective of stealing Jose's wallet and money. The robbery was not incidental to or even necessary for Ojito's objective in the kidnapping. Thus, the trial court did not err in imposing a concurrent sentence on the robbery conviction.
In the case of Ojito's crimes of making a criminal threat and assault with a semiautomatic firearm, those crimes shared a similar overall objective with the kidnapping. Ojito and the other men passed around a gun and made threats to harm Jose and his family for the ultimate purpose of obtaining Apolinar's release. This objective is the same objective that Ojito had in the kidnapping. The People have not pointed to and we have not found evidence suggesting that Ojito had an objective other than furthering the purpose of the kidnapping. The People contend, however, that concurrent sentences were proper because the crimes of making a criminal threat and assault with a semiautomatic weapon were divisible in time from the kidnapping. We are not persuaded by this argument because although there was a gap in time from the point when Jose was initially taken from his home to the point when the men passed around a weapon and made criminal threats, these crimes shared the same objective and were part of a continuous course of conduct.
Because the crimes of kidnapping, assault with a semiautomatic weapon, and making a criminal threat were part of one indivisible course of conduct with the same objective, the court erred in failing to stay the sentences and enhancements for making a criminal threat and assault with a semiautomatic firearm. Thus, we conclude the sentences and enhancements imposed for the crimes of making a criminal threat and assault with a semiautomatic firearm must be stayed.
DISPOSITION
The judgment is affirmed as modified to stay the sentences and enhancements imposed on Ojito's convictions for assault with a semiautomatic weapon and making a criminal threat. The trial court is directed to amend the abstract of judgment to reflect the modification and to forward the amended abstract of judgment to the Department of Corrections and Rehabilitation.
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MCINTYRE, Acting P. J.
WE CONCUR:
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O'ROURKE, J.
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IRION, J.