Appeal from a judgment of the Superior Court of Orange County, David A. Thompson, Judge. Judgment reversed as to simple kidnapping. Affirmed in all other respects. (Super. Ct. No. 07NF0926).
The opinion of the court was delivered by: Ikola, J.
CERTIFIED FOR PUBLICATION
A jury convicted defendant Rodney Bell of evading a police officer while driving recklessly, as well as kidnapping and other offenses. On appeal, he challenges his kidnapping conviction, alleging jury instructional error. We agree with defendant that the court failed to give the jury complete instructions on simple kidnapping and therefore his kidnapping conviction must be reversed.*fn1 In doing so, we also find fault with the wording of CALCRIM No. 1215, because it fails to capture accurately the holding of People v. Martinez (1999) 20 Cal.4th 225 (Martinez).
Arna Jennings was married to defendant for about four and one half years. Their relationship ended in late 2006.
On March 8, 2007, Jennings arranged to meet defendant at 1:00 p.m. at her work place on Amerige Avenue in Fullerton, to repay him some money she owed him. Jennings suggested to the Signal Hill police that defendant, who was on parole, could be arrested that day near her office. The Signal Hill Police Department notified the Fullerton Police Department that a parolee with "an outstanding parole violation warrant" and who was "possibly armed" would be coming to Jennings‟s office in Fullerton.
Defendant arrived at Jennings‟s office at 12:15 p.m., earlier than expected. They went to an automated teller machine where Jennings withdrew the money she owed him, and then they went to lunch. On the drive back to Jennings‟ office, defendant "verbally threatened" Jennings‟s boyfriend. Jennings told defendant she was "not going to listen to [his] foolishness."
They arrived at Jennings‟s office and defendant parked on Amerige Avenue. They continued their disagreement.
Officer Oliveras, a Fullerton detective in plain clothes, was parked in front of defendant‟s vehicle. Oliveras planned to back up his vehicle as close as possible to defendant‟s car, while Oliveras‟s partner, Detective Cicinelli, pulled "his truck in behind" in order to "box" in defendant. The officers intended to jump out, identify themselves, and take defendant into custody. But when Oliveras exited his vehicle, he realized there was about a six to 10-foot gap between his vehicle and defendant‟s.
Oliveras, clad in a bulletproof vest, pulled out his gun, identified himself as an officer, and yelled, "Stop, put your hands up." Jennings, who had opened the car door and was about to get out, could not see the word "POLICE" on Oliveras‟s vest and screamed, "Oh, my God." Defendant looked straight at Oliveras, looked back, "put his car in reverse and slammed into Detective Cicinelli‟s truck, which was now basically at his back bumper." "He turned back around, looked at" Oliveras, accelerated with his "tires screeching," and "came right at" Oliveras. Oliveras moved away to avoid being possibly hit. Defendant made a "very fast accelerated U-turn" and fled the opposite way down the street. Jennings screamed, "Oh, my God, what are you doing? Stop."
Jennings offered two different versions of what happened next. She recounted one version in a police interview on the day of the incident, and the other on direct examination at trial. At trial, she testified that "in a matter of feet," defendant stopped at a red light, put his arm in front of her for her safety, and let her out. But on March 8, 2007, when questioned at the scene, Jennings told an officer she asked "defendant to stop the car about three times," but he said, "No." Shortly "after the U-turn was completed," he "put his right arm across her to restrain her." Jennings was scared.
Under both versions, defendant stopped at an intersection about 70 yards away and let Jennings out of the vehicle.
Alone in the car, defendant led the police on a chase during which he went through stop signs and a red light without stopping, and twice went onto the wrong side of the street so that approaching vehicles had to move over to avoid ...