Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. BA281780, Paul Enright, Temporary Judge.
Steve Cooley, District Attorney, Lael R. Rubin, Head Deputy District Attorney, Brentford J. Ferreira and Scott D. Collins, Deputy District Attorneys, for Plaintiff and Appellant.
Rios, Bayard & King, Stephen A. King and Ralph R. Rios for Defendant and Respondent.
COOPER, P. J.
A jury convicted respondent Manuel Turcios of attempted premeditated and deliberated murder, kidnapping, and robbery. The trial court denied respondent’s motion for new trial with respect to the robbery count, but granted it as to the attempted murder. The People (appellant) appeal from that grant of new trial. We reverse.
FACTS
At about 5:30 a.m on April 12, 2005, respondent and an unidentified accomplice assaulted and kidnapped the victim, Julio Hernandez, near his Los Angeles home. An eyewitness saw Hernandez repeatedly beaten, and then bound and gagged with duct tape, and forced into respondent’s pickup truck. Either respondent or his cohort had a knife. Hernandez identified him as respondent, who put it to his neck and said,” If you move, you die.” According to Hernandez, respondent struck him and knocked him down, proceeded to tape his head, while the accomplice handcuffed his hands behind him and taped his feet together. A pillowcase went over Hernandez’s head as he was put into the truck.
Hernandez testified that respondent then drove the truck, for over three hours, leaving Hernandez on the rear floorboard, above which the accomplice sat. He kicked Hernandez in the face, ribs and stomach, and took a ring, watch, cell phone and some money from him.
After about three and one-half hours, the truck turned onto a gravel road for 10 minutes. After the accomplice said it was okay, respondent started to pull Hernandez out of the truck, head first. But barking dogs were heard, and the truck proceeded for another 10 minutes, again stopping on gravel. Respondent twice struck Hernandez’s head with the truck’s door, and his head became swollen and began to bleed. When the truck stopped again in five minutes, Hernandez was in great pain, bleeding from the handcuffs and from cuts on his fingers (he had tried to grab the knife at the outset), and with his feet and arms swollen. Respondent and his accomplice pulled Hernandez out of the truck, and he struck the ground hard on his head. Respondent raised the approximately eight-inch knife and placed it toward Hernandez’s neck. But a car then pulled up and parked. Respondent desisted, and told his accomplice, “This asshole just got saved by the bell.”
Respondent and the accomplice drove away, leaving Hernandez bound, gagged, restrained, and with the pillowcase over his head. Hernandez rolled for 10 or 15 minutes, to a road where he fell onto the pavement. Chewing through the tape over his mouth, he cried for help. A woman drove up, and others came. Hernandez testified he was in a solitary location.
Taken to the Mexican Red Cross, Hernandez received stitches and restorative blood. He was then driven to the border, where Los Angeles Police Officer Juvey Mejia picked him up and returned him to Los Angeles. During an interview with police the next morning, Hernandez stated that the accomplice had approached him with a knife when the truck stopped. The previous afternoon Officer Mejia had found respondent, in Los Angeles, scrubbing his truck, from which the officer recovered duct tape and rope.
Hernandez testified respondent had been dating Hernandez’s estranged wife. The two men had had an angry phone conversation before the abduction, and Hernandez’s wife had previously threatened him that he would leave the country “through the big door.” The victim had written down the license number of Turcio’s truck before the kidnapping, and that led police to locate Turcios. DNA from blood on one of his shoes matched Hernandez’s.
Respondent presented no affirmative defense. In denying his motion for acquittal on the attempted murder count, the court stated, “I think that there’s sufficient evidence based upon the ‘saved by the bell’ . . . .”~(RT 305:13)~
During closing argument, the prosecutor singled out the final incident with the knife as constituting the attempted murder. However, in discussing intent to kill, the prosecutor referred to respondent’s leaving Hernandez without any money or telephone with which to get help. The prosecutor added, “Basically, all the circumstances show that the victim was left to die in this remote area of Tijuana.”~(RT 328:9)~
The jury was instructed on aiding-abetting, in part because of Hernandez’s differing statements about which of his captors had wielded the knife. The jury convicted respondent of all three offenses, but found not true an allegation that he had used a knife in the attempted murder.
Respondent filed a motion for new trial. Regarding the attempted murder count, respondent argued that the “by the bell” episode was insufficient to show specific intent to kill, or an act so intended. At the hearing, the prosecutor repeated her position that, insofar as intent was concerned, leaving Hernandez alone would be enough to show both intent and attempted murder.
In remarks summarizing the issues, the court stated it believed that the prosecutor’s “entirely new theory” about attempted murder was insufficient. The court added, “Had I known there was gonna be during the argument this argument that frankly may not have been supported by the evidence, probably a unanimity instruction should be given and the jury would find aiding abetting on the theory that he was on the side of the road. The problem with the side of the road theory is factually I don’t know if the evidence supports the verdict.”~(RT 14:12)~ After further reflections, the court concluded, “[B]ut because of that laying on the side of the road, I don’t think . . . I’m comfortable finding that specific intent to murder, and the jury may have, in fact, subscribed to that theory.”~(RT 16)~ The court then granted the motion for new trial on attempted murder.
The court believed that the negative finding on knife use meant that the jury had found respondent guilty as an aider-abetter. This was not necessarily so. (See, e.g., People v. Lopez (1982) 131 Cal.App.3d 565.)
DISCUSSION
Appellant devotes much of its argument to the premise that the trial court erred in granting a new trial on the basis that a unanimity instruction should have been given. But the court did not so rule. The court’s remark about a unanimity instruction was made in passing, and was entirely hypothetical.
The actual cause of the new trial grant, rather, was the court’s apprehension that respondent and his accomplice’s leaving Hernandez “on the side of the road” did not manifest intent to kill, or constitute attempted murder. Because the jury might have credited that theory, the court held, a new trial was required.
We disagree with the court’s ruling for two reasons. First, it is established that a charge or instruction that tenders a theory of guilt that is factually not supported, as well as one that is supported, does not generally require reversal, because the jury as fact-finder and repository of the evidence is presumed to have rejected the unsupported theory. (People v. Guiton (1993) 4 Cal.4th 1116, 1129 (Guiton).) Prima facie, that rule applies here: assuming the “left by the road” evidence was insufficient to show attempted the murder, the jury would have so agreed, and based its verdict on the more prominent theory involving the attempted stabbing that was “saved by the bell.”
The court in Guiton, supra, did explain that reversal could be required “if the record affirmatively demonstrates . . . that the jury did in fact rely on the unsupported ground,” and not on a valid ground as well. (4 Cal.4th at p. 1129; id. at p. 1130) Respondent urges that this is such a case, but we disagree. None of the indicia of reliance on the incorrect ground, as articulated in Guiton, at page 1129, appears in this case.
The second reason – if necessary – why we find the trial court’s grant of new trial erroneous is that the facts that the prosecutor ultimately argued actually were sufficient to support intent and a verdict of attempted murder. Hernandez was bound, head and foot, with his mouth taped over and a pillowcase over his head. He had been cut, beaten, kicked, and repeatedly struck in the head by a truck door. The area in which he was left was desolate. As the prosecutor said, “It was just by sheer luck that he happened to roll in the correct direction and was found by people in his current state. Had he rolled the other way, it’s entirely possible that he might have just died sheerly from exposure to the elements.”~(RT 9:15)~
The evidence as a whole showed a scheme to brutally abduct Hernandez to Tijuana, and there “get rid of him.” From the standpoint of specific intent and sufficient act, the leaving of Hernandez near the roadside constituted attempted murder.
DISPOSITION
The order granting a new trial is reversed.
We concur: BOLAND, J. FLIER, J.