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The People v. Samuel Perez Ortiz et al


December 21, 2010


Monterey County Super. Ct. No. SS080941

The opinion of the court was delivered by: Premo, Acting P.J.

P v . Ortiz CA6


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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

A jury convicted defendants Samuel Perez Ortiz and Marco Villapudua Villa of torture (Pen. Code, § 206),*fn1 burglary (§ 459), aggravated assault (§ 245, subd. (a)(1)), dissuading witnesses (§ 136.1), and other crimes, all of which were committed in connection with defendants' beating of two victims on February 18, 2008. Ortiz was also convicted of kidnapping (§ 207) and both defendants were found to have personally inflicted great bodily injury within the meaning of section 12022.7. The trial court sentenced Ortiz to 18 years to life in prison. Villa was sentenced to 13 years to life.

On appeal, defendants argue that the evidence is insufficient to support the torture convictions or to show that either defendant personally inflicted great bodily injury. They also challenge the trial court's decision to allow evidence that Villa claimed to be a gang member, the prosecutor's attempts to solicit evidence that defendants were drug dealers, and jury instructions pertaining to simple kidnapping and infliction of great bodily injury. We reject each of these arguments. We agree with Villa, however, that the trial court imposed an unauthorized sentence for one count of dissuading a witness. We shall modify the judgment against him, reducing his sentence by one year. As modified, we affirm the judgment against Villa. As to Ortiz, we affirm the judgment.

I. Factual and Procedural Background



Victims Jose Hernandez and Sergio Cabrera resided together in the City of Monterey. Ortiz and Villa shared an apartment in the City of Marina. Both Hernandez and Cabrera knew Ortiz from a restaurant where they worked together. One day at work, Ortiz told Hernandez that $15,000 was missing from his apartment and that a person named Douglas (his full name was never ascertained at trial) had stolen it. Douglas had been staying with Ortiz but had disappeared right after Ortiz discovered the money was missing. Ortiz wanted to know if Hernandez knew where Douglas was. Hernandez told him that he did not know.

Three days before the crimes charged in this case, Ortiz came to the victims' apartment and asked Cabrera if he knew where Douglas was. Cabrera learned from Hernandez that Ortiz and Villa were looking for Douglas because Douglas had stolen their money and drugs.

B. Beating Hernandez

About a month prior to the charged crimes, Hernandez had borrowed $200 from Ortiz. He was to pay him back when he got his paycheck. On Monday, February 18, 2008, Ortiz came to the victims' apartment to give Hernandez a ride to cash his paycheck so he could repay Ortiz the money he owed. They left together around 1:00 p.m. Hernandez cashed the check at a market in Marina. He received $565 and gave $200 to Ortiz. Ortiz then drove to his own apartment and invited Hernandez inside. Inside the apartment Villa was lying on the sofa; Hernandez sat down on the edge. Ortiz then locked the door; he looked upset. He told Hernandez, "I'm going to fuck you up." He accused Hernandez of knowing where Douglas was but Hernandez denied it.

Ortiz hit Hernandez in the face with his fists. Villa got up, put on his shoes, and came toward Hernandez and, together with Ortiz, threw Hernandez to the floor. Hernandez lay on his back while Ortiz punched him in the eyes and mouth. Villa hit him on the forehead. They held him down and Hernandez did not fight back. Ortiz asked him repeatedly where Douglas was; Hernandez repeatedly denied knowing. Ortiz told Hernandez that Douglas had stolen drugs and $15,000. Villa said some of the money had belonged to him. Villa said nothing about drugs.

The beating continued for about one-half hour. Villa threatened to kill Hernandez. Ortiz "was pretty much following whatever [Villa] was saying at the moment." For example, "[Villa], he was threatening me that he would kill me, and [Ortiz] would say yeah." Villa told Hernandez that he was going to tape his mouth and hands and leave him locked up. Hernandez believed the threats. He was afraid he might die because they were "self-assured about stuff like that." Hernandez saw Villa with a switchblade knife. When Villa tried to cut Hernandez, Hernandez put his hand in the way and got his finger cut. Hernandez kicked the walls and window blinds trying to alert the neighbors.

Defendants finally stopped the beating. The skin around Hernandez's teeth was broken, his eye was swollen, his jaw moved sideways, and his face, head and chest hurt. During the course of the beating, Ortiz took $300 from Hernandez's pocket.

C. Kidnapping Hernandez

Villa gave Hernandez a sweatshirt to cover the blood on his shirt and the two defendants forced him into the car. They told Hernandez they were going to his place in Monterey to "fuck up" Cabrera and would hit him harder than they had hit Hernandez. They told Hernandez that they were going to lock him inside the car and that they would kill him if he told anyone at the restaurant or if he said anything to the police. In the car, Ortiz was behind the wheel, Villa sat in the front passenger seat, Hernandez was in the back. On the way to Monterey they picked up Marlon Guillen. Guillen got in the back seat with Hernandez. Defendants told Guillen to keep an eye on Hernandez to keep him from escaping.

D. Beating of Cabrera

On the way to the victims' apartment in Monterey, Ortiz described his plan. Ortiz would go up to the door. Villa was to follow as soon as Ortiz was inside. Before they got to the apartment Ortiz received a call from Cabrera looking for Hernandez and asking Ortiz to pick up a six-pack of beer for him. Ortiz stopped for the beer, then went on to the apartment and parked in front. Defendants told Hernandez not to get out of the car or they would find him and kill him.

Cabrera testified that Ortiz opened the door to the apartment, walked directly over to where Cabrera was sitting, and, with a little smile on his face, started punching Cabrera in the head. Villa came in a minute or two after Ortiz entered. Villa pushed Cabrera, face-down, onto the floor. Cabrera's face and nose were bleeding. Villa put his knee on the back of Cabrera's head and shifted all his weight on to that knee. Cabrera lost "concentration" and felt dizzy. He could not breathe and thought he might die. While Cabrera was lying there bleeding defendants tied his hands behind him with a telephone cord. Cabrera recalled having been punched many times, mostly by Ortiz, but Villa punched him two or three times as well. All the punches were to his face. The beating lasted about 20 minutes. Ortiz twice asked Cabrera where Douglas was. Villa did not say anything. Defendants untied Cabrera before they left.

After defendants left the apartment, Cabrera got up. He was dizzy and weak and could not open the front door. The police arrived five to 10 minutes later. Cabrera did not recall much of what happened right after the beating. Both sides of his face were swollen. His eyes were "closing" and bleeding, his head hurt, and he had "no energy." A day or two later, Cabrera went to a doctor because he was having bad headaches and was afraid his head was damaged. The ear, nose, and throat specialist who examined Cabrera on February 22, 2008, noted that a CT scan taken on the day of the beating showed that the upper bony portion of Cabrera's nose and the right eye socket bone (the orbital bone) were fractured. The fractures did not require treatment and would heal on their own. The fractured eye socket might have been causing the headaches by allowing air to enter the sinuses under the facial bones. The doctor had "no way to know" what caused the fractures other than what the patient might tell him. The fractures were consistent with the patient's having been hit with a fist.

E. Law Enforcement Investigation

While defendants were inside the victims' apartment beating Cabrera, Hernandez did not stay put. He got out of the car and ran to a nearby fire station. Monterey Police Officer Carrie Hogan was dispatched to the fire station where she found Hernandez with facial injuries. He was distraught. She called for an officer to go to the victims' apartment.

Monterey Police Detective Amy Carrizosa responded and contacted Cabrera at his apartment sometime between 4:00 and 4:30 p.m. on February 18, 2008. Cabrera had cuts, bruises, and swelling all over his face. When she observed him two days later, his face was still bruised and swollen, his lip was swollen and cut, both ears were bleeding and cut, she felt bumps on his head, and his left eye had swollen shut.

During her first interview with Cabrera on the day of the incident, he told her that defendants "had come and were looking for a man, who he later determined was Douglas, because [Douglas] had stolen drugs and/or money from them." He told her that defendants had threatened to kill him and warned that they would kill him if he went to the police. (During his testimony at trial, Cabrera denied that defendants threatened to kill him or told him not to go to the police.)

The day after the incident, the police executed a search warrant at defendants' apartment. Ortiz, Villa, and Guillen were inside. The police found over $3,000 in cash in Ortiz's bedroom and three $100 dollar bills in his wallet. No drugs, drug paraphernalia, or indicia of drug sales were found in the apartment. No switchblade knife was found.

F. Defense Case

Villa testified in his defense, claiming that Douglas had stolen money and a computer, not drugs. He also maintained that he, Villa, had walked in on the two beatings and that in both instances he did not join in but tried to pull Ortiz off his victims. Ortiz did not testify. Both defendants focused upon inconsistencies in the victims' stories.

G. Charges

Defendants were charged by information with 12 felonies and enhancement allegations relating to the personal infliction of great bodily injury and Villa's use of a knife. Charges were as follows:

Count 1: Kidnapping with bodily injury (Hernandez). (§ 209, subd. (a).) Personal use of a deadly weapon by Villa. (§ 12022, subd. (b)(1).)

Count 2: Kidnapping for robbery (Hernandez) with bodily injury. (§ 209, subd. (b).) Personal use of a deadly weapon by Villa. (§ 12022, subd. (b)(1).)

Count 3: Torture (Cabrera). (§ 206.)

Count 4: First degree residential robbery (Hernandez). (§ 211.) Personal use of a deadly weapon by Villa. (§ 12022, subd. (b)(1).)

Count 5: First degree burglary. (§ 459.) Personal infliction of great bodily injury (Cabrera). (§ 12022.7, subd.(a).)

Count 6: Aggravated assault (Hernandez). (§ 245, subd. (a)(1).)

Count 7: Aggravated assault (Cabrera). (§ 245, subd. (a)(1).) Personal infliction of great bodily injury. (§ 12022.7, subd. (a).)

Count 8: Battery with serious bodily injury (Cabrera). (§ 243, subd. (d).)

Count 9: Criminal threats (Hernandez). (§ 422.) Personal use of a deadly weapon by Villa. (§ 12022, subd. (b)(1).)

Count 10: Criminal threats (Cabrera). (§ 422.) Personal infliction of great bodily injury. (§ 12022.7, subd. (a).)

Count 11: Dissuading a witness (Hernandez) by force or threat. (§ 136.1, subd. (c)(1).) Personal infliction of great bodily injury. (§ 12022.7, subd. (a).)

Count 12: Dissuading a witness (Cabrera) by force or threat. (§ 136.1, subd. (c)(1).) Personal infliction of great bodily injury. (§ 12022.7, subd. (a).)

H. The Verdict

Upon motions by the prosecutor, the trial court dismissed counts 1 and 10 and the great bodily injury enhancement alleged in connection with count 11. The jury found the deadly weapons allegations against Villa not to be true. The remaining charges and enhancements were adjudicated as follows:

1. Ortiz

Count 2: Not guilty; guilty of lesser offense of simple kidnapping. (§ 207.)

Count 3: Guilty.

Count 4: Not guilty; guilty of lesser offense of petty theft. (§ 484.)

Count 5: Guilty; great bodily injury enhancement found true.

Count 6: Guilty.

Count 7: Guilty; great bodily injury enhancement found true.

Count 8: Guilty.

Count 9: Guilty.

Count 11: Guilty; did use force or threat.

Count 12: Guilty; did use force or threat; great bodily injury allegation; true.

2. Villa

Count 2: Not guilty; guilty of lesser offense of false imprisonment with violence, menace, fraud or deceit. (§§ 236, 237.)

Count 3: Guilty.

Count 4: Jury unable to reach a verdict; dismissed.

Count 5: Guilty; great bodily injury enhancement found true.

Count 6: Not guilty; guilty of simple assault. (§ 240.)

Count 7: Guilty; great bodily injury enhancement found true.

Count 8: Not guilty; guilty of lesser offense of battery.

Count 9: Jury unable to reach a verdict; dismissed.

Count 11: Guilty; did not use force or threat.

Count 12: Guilty; did use force or threat; great bodily injury allegation; true.

I. Sentencing

The trial court sentenced Ortiz to seven years to life for count 3 (torture), the middle term of five years for count 2 (kidnapping), and three years each for counts 11 and 12 (dissuading a witness). These terms were to run consecutively for a total term of 18 years to life. Sentences for all other crimes were either to run concurrently or were stayed pursuant to section 654. The court awarded credits and imposed fees and fines, none of which are at issue on appeal.

As to Villa, the court sentenced him to seven years to life for count 3 (torture), and three years each for counts 11 and 12 (dissuading a witness), for a total of 13 years to life. As with Ortiz, the court ran all other sentences concurrently or stayed them pursuant to section 654, granted credits, and imposed fees and fines.

Both defendants have appealed. Each joins the other's arguments on appeal to the extent those arguments apply to him.

II. Discussion

A. Sufficiency of the Evidence of Torture

Defendants argue that the evidence is insufficient to support their convictions of torture under section 206. Section 206 provides, "Every person who, with the intent to cause cruel or extreme pain and suffering for the purpose of revenge, extortion, persuasion, or for any sadistic purpose, inflicts great bodily injury as defined in Section 12022.7 upon the person of another, is guilty of torture. [¶] The crime of torture does not require any proof that the victim suffered pain."

As shown, there are two elements to the crime of torture: (1) the infliction of great bodily injury; and (2) the specific intent to cause cruel or extreme pain and suffering for revenge, extortion or persuasion or any sadistic purpose. In this case, there is no dispute that Cabrera suffered great bodily injury (the broken nose and orbital bone). And defendants do not challenge the finding that the beating was intended to persuade Cabrera to reveal Douglas's whereabouts or as revenge for the theft. Defendants do argue that the evidence is insufficient to support a finding that they intended to cause cruel or extreme pain and suffering.

In considering a claim of insufficient evidence, we "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.) Evidence of intent to cause cruel or extreme pain and suffering, like other forms of intent, is usually circumstantial. (People v. Pre (2004) 117 Cal.App.4th 413, 419-420.) "Although it is the jury's duty to acquit a defendant if it finds the circumstantial evidence susceptible of two reasonable interpretations, one of which suggests guilt and the other innocence, it is the jury, not the appellate court that must be convinced of the defendant's guilt beyond a reasonable doubt." (People v. Kraft (2000) 23 Cal.4th 978, 1053-1054.) "Simply put, if the circumstances reasonably justify the jury's findings, the judgment may not be reversed simply because the circumstances might also reasonably be reconciled with a contrary finding." (People v. Farnam (2002) 28 Cal.4th 107, 143.)

Defendants insist that "prolonged pain" is an essential element of the crime of torture and, because the attack upon Cabrera was not as prolonged as the attacks in other torture cases, it cannot have been torture. Relying upon a number of cases in which the assault at issue was more prolonged than the 20-minute attack that took place here, defendants maintain that the "brief assault with fists" is insufficient to support the torture convictions. We disagree. In the context of the crime of torture, the jury may rely upon circumstances of the crime to decide whether a defendant had the intent to inflict cruel or extreme pain and suffering, but no one circumstance is determinative. "Torture does not require the defendant act with premeditation and deliberation, and it does not require that he intend to inflict prolonged pain. [Citation.] Accordingly, the length of time over which the offense occurred is relevant but not necessarily determinative. [Citation.] Likewise, the severity of the wounds inflicted is relevant but not necessarily determinative." (People v. Massie (2006) 142 Cal.App.4th 365, 371.) Another circumstance from which a jury may infer intent to cause extreme pain or suffering is where a defendant " 'focuses his attack on a particularly vulnerable area, such as the face, rather than indiscriminately attacking the victim.' " (People v. Hamlin (2009) 170 Cal.App.4th 1412, 1426-1427; see People v. Quintero (2006) 135 Cal.App.4th 1152, 1163; cf. People v. Crittenden (1994) 9 Cal.4th 83 [multiple stab wounds sufficient evidence of torture].) More generally, the analysis requires the jury to distinguish between acts committed as part of an indiscriminate "explosion of violence" and acts committed with the specific purpose of causing the victim to suffer cruel or extreme pain and suffering for one of the purposes specified in section 206. (People v. Mincey (1992) 2 Cal.4th 408, 432.) While defendants dwell upon a number of cases where the facts were more egregious than they are here, our concern is whether the circumstances of this case support the jury's findings. We believe they do.

The evidence supports a finding that the attack upon Cabrera was part of a plan; it was not a spontaneous explosion of fury. Defendants told Hernandez they were going to beat Cabrera. Ortiz sketched out the process to Villa. Once in the apartment, defendants did not approach Cabrera with unfocused fury. Ortiz was smiling. He immediately punched Cabrera in the face multiple times. Villa landed a couple of punches and helped pull Cabrera to the floor and pinned him there by kneeling on his head.

Defendants argue that their lack of intent to cause extreme pain and suffering is shown by evidence that Cabrera's wounds were not severe, he was not scarred or disfigured, and he did not suffer extreme pain. The jury was justified in taking a different view. Defendants did not punch the man just once or twice. They punched him multiple times, focusing their blows on his face. Cabrera testified that all the blows were to his face. As the Attorney General stresses, Villa then kneeled on Cabrera's head, pressing his bleeding face into the floor so that he could not breathe. Cabrera thought he was going to die. His head was immobilized and his hands were bound behind his back. Defendants kept him from breathing for long enough that he lost "concentration." The jury would have been justified in understanding this to mean that he passed out. When he was finally let go he was so dizzy and weak he could not open the front door. The jury could reasonably have concluded from evidence of the many blows to the face and the sadistic manner in which the victim was pinned to the floor that defendants intended to cause him extreme pain and suffering.

Villa argues that there must be some link between the conduct demonstrating intent to torture and infliction of great bodily injury. He also maintains that there is no evidence that his pinning Cabrera's face to the floor resulted in great bodily injury to Cabrera. It follows, he says, that he cannot be guilty of torture. The main problem with the argument is that evidence of Villa's conduct in kneeling on Cabrera's head was only one of the several circumstances that, taken together, support the jury's finding that defendants had the intent to cause extreme pain and suffering. It does not matter which of the several circumstances supporting the intent finding actually resulted in the great bodily injury so long as the evidence supports a finding that defendants harbored the requisite intent when the great bodily injury was inflicted. Viewed as a whole, the evidence supports the finding that defendants intended to cause extreme pain and suffering for the purpose of revenge or persuasion when they beat Cabrera, bound his hands, and pinned him face down on the floor, and that somewhere in the course of that attack, defendants inflicted great bodily injury upon the victim. That is sufficient to support the torture convictions.

B. Substantial Evidence of Personal Infliction of Great Bodily Injury

In connection with several of the counts, the jury found that defendants had personally inflicted great bodily injury upon Cabrera within the meaning of section 12022.7. Defendants concede that Cabrera's fractured nose and orbital bone constitute great bodily injury. They argue, however, that the evidence is insufficient to support a finding that either one of them personally inflicted those injuries.

In People v. Cole (1982) 31 Cal.3d 568, 572, the Supreme Court held that the phrase "personally inflicts" in section 12022.7 means what it says: "[T]he individual accused of inflicting great bodily injury must be the person who directly acted to cause the injury." In People v. Modiri (2006) 39 Cal.4th 481(Modiri), the Supreme Court explained how to apply section 12022.7 when the injury is inflicted in the course of a group beating. Modiri held that the defendant need not act alone to have personally caused a victim's injuries. (Modiri, supra, at p. 493.) A person may receive an enhanced sentence under section 12022.7 if the person "joins others in actually beating and harming the victim, and where the precise manner in which he contributes to the victim's injuries cannot be measured or ascertained." (Modiri, supra,at p. 495.) The personal-infliction finding can be made "if defendant personally applied force to the victim, and such force was sufficient to produce grievous bodily harm either alone or in concert with others." (Id. at p. 497.)

Villa argues that he did not "participate substantially" in beating Cabrera and, for that reason, this case is distinguishable from the many cases finding substantial evidence to support the personal-infliction finding in a group beating case. As with the torture conviction, we are concerned here with the evidence in this case, evaluating it by means of the substantial evidence standard of review. Although Villa implies that his participation was not substantial since Ortiz did most of the punching, Villa ignores an important part of the evidence. Villa entered the fray within minutes, punched Cabrera two or three times, wrestled him to the floor, then kneeled on his head, pressing the victim's face into the floor with the weight of his body. Ortiz may have landed a greater number of punches but Villa's role was not insubstantial in comparison.

Both defendants argue that the prosecutor failed to prove that it was impossible to tell who inflicted the great bodily injury because he did not ask Cabrera if his nose was already bleeding and if his eye had already been struck by the time Villa joined the fight. Defendants also maintain that the prosecution failed to ask Cabrera where Villa's two or three punches landed. Certainly, if the prosecutor had asked those questions, Cabrera's answers may have buttressed the impossibility element. But since the argument on appeal pertains to the sufficiency of the evidence, we look to the record as it stands to see if the evidence is sufficient to prove the negative. The physician who examined Cabrera testified that there is "no way to know" how either fracture occurred. It could have been a fist--but whose fist? Did the fracture occur on the first blow or as the cumulative effect of more than one blow? Did jamming Cabrera's face into the rug and then kneeling on his head cause or contribute to one or both of the fractures? The medical testimony was that, judging solely from the fractures, there is no way to know what caused them. Cabrera's description of the rapidity with which he was set upon, the number of blows he suffered, and the manner in which he was pinned to the floor, support the finding that either defendant could have caused one or both of the fractures and that it is not possible to ascertain which particular act caused which fracture.

Defendants rely upon People v. Magana (1993) 17 Cal.App.4th 1371 (Magana), where there was information from which it could have been determined which defendant had inflicted the injury. In Magana, the defendant and his co-defendant had used two different firearms when they opened fire on a group of people, killing one and seriously injuring another. (Id. at p. 1374.) The police identified different types of bullets and cartridges retrieved from the crime scene and removed from the victims but that evidence was not introduced at trial. The appellate court held, given the separate firearms and the ballistics evidence, that it was possible to show which injuries were caused by which defendant so that the jury's section 12022.7 finding was not supported by substantial evidence. (Magana, supra, at p. 1381.)

Magana was distinguished by the appellate court in People v. Banuelos (2003) 106 Cal.App.4th 1332, 1338 (Banuelos), which held: "Although the prosecution does bear the burden of showing that it cannot be determined which assailant inflicted a particular injury in the context of a group beating, the evidence adduced during the prosecutor's case here showed such impossibility." In Banuelos, the physician who had treated the victim following a group attack testified that the victim had suffered a broken jaw, but that it was impossible to tell which attack or instrument caused the broken jaw, so that the evidence was sufficient to support the jury's finding that the defendant had personally inflicted the injury. (Ibid.) This case is similar.

In this case, the medical evidence is that one cannot tell from the fractures how they were inflicted. And, unlike Magana, there is no suggestion that the prosecution could have proved which defendant caused which injury in some other way. Defendants' argument presumes that if Cabrera had testified that his nose was bleeding and his eye had been struck before Villa joined the fight, then we would know who caused the fractures. But defendants provide no support for the propositions that any one blow to the eye would necessarily fracture the orbital bone or that a bloody nose is an unequivocal sign that the bony upper portion of the nose is broken. Accordingly, unlike the situation in Magana, it is not the case that the prosecution had evidence that would have made it possible to tell which defendant inflicted both injuries. Since both defendants personally applied force sufficient to produce great bodily harm to Cabrera, and since the precise manner in which they contributed to the victim's injuries cannot be measured or ascertained, the evidence is sufficient to support the jury's finding that they both personally inflicted the injury.

C. CALCRIM No.3160

The trial court instructed the jury in the language of CALCRIM No. 3160.*fn2 Defendants claim that the instruction failed to inform the jury that the prosecution had the burden of proving, beyond a reasonable doubt, that it was impossible to determine which defendant caused the great bodily injury. (Cf. Banuelos, supra, 106 Cal.App.4th at p. 1338.) We detect no reversible error.

There is no dispute that the jury was amply and correctly instructed in the prosecution's overall burden to prove its case beyond a reasonable doubt. The problem, according to defendants, lies in an ambiguity in CALCRIM No. 3160, which, as given by the trial court here, states, "If . . . you cannot decide which person caused which injury, you may conclude that the defendant personally inflicted great bodily injury" (italics added) if the prosecution proved each of the other Modiri elements. The instruction ended with the caution, "The People have the burden of proving each allegation beyond a reasonable doubt." Defendants maintain that, as phrased, the two parts of the instruction do not make it clear that impossibility is one of the elements that the prosecution must prove beyond a reasonable doubt. Assuming that the prosecution had the burden to prove the negative proposition as defendants maintain, we conclude that the trial court's failure to modify CALCRIM No. 3160 or to give a special instruction on the point was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24.) We concluded above that the evidence is sufficient to support the impossibility finding. We have further concluded that there was no indication that Cabrera could have provided any evidence to the contrary. There is nothing in the record or in defendants' arguments to suggest that the jury could have reached any different result. Accordingly, we are convinced beyond a reasonable doubt that the error, if any, was harmless.

D. Prosecutorial Misconduct

Prior to trial, defendants moved to exclude evidence that they had been involved in drug use or drug trafficking. Defendants argued that the evidence was irrelevant and highly prejudicial. The prosecutor argued that the evidence was important to the People's theory of the case, it was relevant to the motive for the two beatings, and it explained why defendants had not reported Douglas's theft to the police. During oral argument on the motion it became clear that there were two types of drug-related evidence: evidence of defendants' reputation as drug dealers and evidence of drug-related statements one or the other defendant made to the victims. The trial court denied defendants' motion but asked the prosecutor to alert the court before introducing the former type of evidence. Specifically, the trial court held:

"I'm not going to grant a motion to exclude statements, references, during the course of this--the actual activity that is the subject of these charges that involves that kind of a comment; whether that--whether there are other--whether witnesses might know that the person is an axe murderer or a drug dealer, that's different though.

"So it's a little bit difficult, but where--where the comments are coming in during the course of the--you know, the res gestae, as it were, for lack of a better way of putting it, during the course of the commission of the offenses, that one thing. Where it's some kind of knowledge, separate and apart from that, from prior experience or whatever it might be, the Court would want to know that in advance and have some kind of an offer of proof as to why that would come in and why it wouldn't be--and we would have a discussion about why it wouldn't be excluded under [Evidence Code section] 352. So be very sensitive to that, please."

At trial, the prosecutor asked Hernandez if either Villa or Ortiz "mention[ed] drugs at any time during that day?" Hernandez initially said no but when pressed he said that Ortiz had said that Douglas had stolen "drugs and the money." Hernandez confirmed that the amount of money Ortiz claimed to have lost was $15,000.

Later, in the prosecutor's cross examination of Villa, he asked, "Have you ever seen [Ortiz] sell drugs?" "Ever seen drugs around the apartment?" "Ever been involved with him in selling drugs?" Villa responded in the negative to each question. Defense counsel interposed no objections. A bit later, the prosecutor asked, "Are you concerned that someone would find out about the drug selling that was going on?" Counsel objected to this question as argumentative and the trial court sustained the objection. The prosecutor then asked Villa if he was concerned that the police might wonder why there was $15,000 in the apartment. Villa replied that he had not known there was $15,000 in the apartment.

Officer Octavio Barocio was called as a witness for Villa. Villa's counsel asked him about his interview of Hernandez: "And he made no statement whatsoever about Marco Villa selling drugs; correct?" The officer responded, "No." On cross examination, the prosecutor attempted to clarify the answer: "Clarify on your last no, he didn't say anything about Marco Villa selling drugs. Does that mean he didn't say it or he did say something about Marco Villa selling drugs." Barocio referred to his report of the interview and then answered, "I believe in my report I wrote that [Ortiz]--he gave me the statement that [Ortiz][*fn3 [3]] was selling drugs out of his apartment."

Finally, the evidence had shown that Ortiz had two apartments, one he sublet to Guillen and one where he resided with Villa. The prosecutor asked Barocio, "Now in your experience in narcotics and narcotics detection and such, do some drug dealers keep two residences, or two locations, one where they can sell out of and one where they live?" Barocio responded, "My cases, that I have investigated, have shown that."

Defendants find no fault with the prosecutor's questions to Hernandez and recognize that his answers provided evidence to support the inference that Ortiz had "possessed drugs at some point." Defendants argue, however, that the prosecutor committed misconduct in questioning Villa and Officer Barocio and later in stressing the drug connection in his argument to the jury. Defendants did not interpose any substantive objections to the cited instances of misconduct. As a general rule, a defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion, and on the same ground, the defendant raised an objection and requested that the jury be admonished to disregard the impropriety. (People v. Ayala (2000) 23 Cal.4th 225, 284.) Attempting to overcome the forfeiture problem, defendants argue that their counsel rendered ineffective assistance by failing to object.

To establish ineffective assistance of counsel, a defendant must show that counsel's performance "fell below an objective standard of reasonableness," and that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." (Strickland v. Washington (1984) 466 U.S. 668, 688, 694 (Strickland).) The decision whether to object to alleged prosecutorial misconduct is an inherently tactical decision; hence, failure to object rarely establishes counsel's incompetence. (People v. Maury (2003) 30 Cal.4th 342, 415-416, 419.) In this case, even if we assume for the sake of argument that the prosecutor's questions amounted to misconduct, we may resolve the ineffective-assistance of counsel claim by proceeding directly to the issue of prejudice to decide whether there is a reasonable probability that the outcome would have been different had counsel raised a timely objection. (Strickland, supra, at p. 697.)

According to defendants, the drug-dealing evidence was highly prejudicial so that absent the improper questions to Villa and Officer Barocio, it is reasonably likely the jury, which deliberated for several days, would have reached a different result, particularly on the torture count, if counsel had objected and the jury been admonished. But even if the allegedly improper evidence had been stricken, that would not have eliminated the drug-dealing evidence that was properly admitted through Hernandez.

Defendants insist that Hernandez's testimony pertaining to Ortiz's having drugs stolen from him established only that Ortiz once possessed drugs. According to defendants, the further inference, that Ortiz was a drug dealer, is speculation. We disagree. The further inference is supported by Hernandez's testimony that along with the drugs, Ortiz claimed to have lost $15,000. Evidence of that unreported loss of $15,000 in cash supports the inference that Ortiz was involved in something illegal, like selling drugs. The little additional evidence the prosecutor was able to elicit with the allegedly improper questions gave the jury no more prejudicial information than that which the prosecutor had appropriately elicited from Hernandez. Thus, even if counsel had objected to the prosecutor's questions, and even if the objections had been sustained and the jury admonished, the jury would still have the evidence that Ortiz told Hernandez that Douglas had stolen his drugs and $15,000. And the prosecutor would still have been entitled to rely upon that evidence his argument to the jury. It is not reasonably likely that absent the little bit of evidence the prosecutor was able to elicit through Barocio, which merely reiterated that which Hernandez had said, the jury would have reached a different result.

E. Evidence of Villa's Statement About Gangs

Prior to trial, defendants moved to exclude evidence, as reflected in one of the police reports, that Villa had told Hernandez he was a Salinas gang member and that he knew many violent people who would kill him or his loved ones if he talked to the police. The trial court denied the motion without explanation. On appeal, defendants argue that the ruling was an abuse of discretion.

Evidence Code section 352 gives the trial court the discretion to exclude relevant evidence if the court determines that the probative value of the evidence is "substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." The trial court's ruling on a Evidence Code section 352 objection " 'must not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice.' " (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124.) We detect no abuse of discretion here.

Defendants were charged with making criminal threats against Hernandez in violation of section 422.*fn4 To prove the crime of criminal threat, the prosecution must prove, among other things, that the threat caused the victim to be in sustained fear for his or her own safety or for his or her immediate family's safety and that the fear was reasonable under the circumstances. (§ 422; People v. Toledo (2001) 26 Cal.4th 221, 228.) The prosecution sought to introduce Villa's statement about belonging to a gang in order to prove the reasonableness of Hernandez's belief that he would actually be killed if he went to the police.

Defendants claim that there was plenty of other evidence of threats so that the evidence that Villa claimed to belong to a gang was cumulative and, given its inflammatory nature, was unduly prejudicial. As the Attorney General maintains, the argument misses the point. There were plenty of threats. But the prosecution had to prove that the threats were credible, that Hernandez reasonably believed defendants would carry out the threat to kill him or his family. There was no evidence that either defendant had a history or reputation for violence that would help make a murder threat credible. Evidence that Villa claimed to belong to a gang--whether or not he actually belonged to one--would tend to show that it was reasonable for Hernandez to be afraid that Villa would carry out his threat to kill him. Thus, the evidence was relevant and was not cumulative of any other direct evidence on the point. We conclude, therefore, that the trial court's decision to allow the evidence was an appropriate exercise of discretion.*fn5

F. Cumulative Effect of Drug and Gang Evidence

Defendants argue that the cumulative effect of the prosecutor's misconduct in eliciting the drug-dealing evidence and the trial court's ruling on the gang evidence deprived them of a fair trial. Since we have found no error with regard to the latter, we adhere to our conclusion that counsel's failure to object to the prosecutor's drug questions was harmless beyond a reasonable doubt.

G. Instruction on Kidnapping

Both defendants were charged in count 2 with kidnapping of Hernandez for robbery. (§ 209, subd. (b).) The jury found both defendants not guilty of the charged crime and found Ortiz guilty of the lesser included offense of simple kidnapping. (§ 207.) To be convicted of simple kidnapping, the defendant must have moved the victim a " 'substantial distance.' " (People v. Bell (2009)179 Cal.App.4th 428, 435 (Bell).) Ortiz argues that the trial court's instruction on simple kidnapping omitted one of the factors the jury should consider in deciding whether he had moved Hernandez a "substantial distance."

Under section 207, subdivision (a), simple kidnapping occurs when a "person who 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." In short, the crime has three elements: "(1) a person was unlawfully moved by the use of physical force or fear; (2) the movement was without the person's consent; and (3) the movement of the person was for a substantial distance." (People v. Jones (2003) 108 Cal.App.4th 455, 462.) The movement element is called "asportation." (People v. Rayford (1994) 9 Cal.4th 1, 14; Bell, supra, 179 Cal.App.4th at p. 435.)

In this case, the trial court instructed the jury in the language of CALCRIM No. 1215 and explained the "substantial distance" element as follows: "Substantial distance means more than a slight or trivial distance. In deciding whether the distance was substantial, you must consider all the circumstances related to the movement. Thus, in addition to considering the actual distance moved, you may also consider other factors such as whether the movement increased the risk of physical or psychological harm, increased the danger of a foreseeable escape attempt, gave the attacker a greater opportunity to commit additional crimes, or decreased the likelihood of detection."

Citing Bell, Ortiz maintains that the foregoing instruction failed to instruct the jury to also consider whether the movement went beyond that merely incidental to the other crimes charged. The Attorney General argues that Bell was incorrectly decided, the case is distinguishable, and any error was harmless. The final argument is dispositive.

Kidnapping for robbery (§ 209, subd. (b)), like other forms of aggravated kidnapping, requires movement of the victim "that is not merely incidental to the commission of the underlying crime and that increases the risk of harm to the victim over and above that necessarily present in the underlying crime itself." (People v. Martinez (1999) 20 Cal.4th 225, 232 (Martinez); § 209, subd. (b).) Thus, in People v. Daniels (1969) 71 Cal.2d 1119, 1130-1131, the Supreme Court held that the defendants' moving their victims from one room to another in order to rob them or to commit rapes was not kidnapping because "the brief movements which they compelled their victims to perform were solely to facilitate such crimes." Since such movements were merely incidental to the robberies and rapes, the Legislature could not reasonably have intended the movement to be taking the victim into another part of the same county. (Ibid.)

As Bell noted, however, simple kidnapping does not include the requirement that the movement be beyond that " 'merely incidental to' " an underlying crime because, in simple kidnapping, no underlying crime is required. (Bell, supra, 179 Cal.App.4th at p. 436.) Historically, asportation for simple kidnapping required only an assessment of the "actual distance" the victim was moved. (People v. Caudillo (1978) 21 Cal.3d 562, 574; see also People v. Stanworth (1974) 11 Cal.3d 588, 603.) Martinez changed the historical standard and required the finder of fact to "consider the totality of the circumstances" in deciding whether a victim's movement was substantial. (Martinez, supra, 20 Cal.4th at p. 237.) "Thus, in a case where the evidence permitted, the jury might properly consider not only the actual distance the victim is moved, but also such factors as whether that movement increased the risk of harm above that which existed prior to the asportation, decreased the likelihood of detection, and increased both the danger inherent in a victim's foreseeable attempts to escape and the attacker's enhanced opportunity to commit additional crimes." (Ibid.) In addition, the jury could consider "whether the distance a victim was moved was incidental to the commission of" an "associated crime." (Ibid.) Bell held that an " 'associated crime,' " within the meaning of the Martinez holding, "is any criminal act the defendant intends to commit where, in the course of its commission, the defendant also moves a victim by force or fear against his or her will. It is not more complicated than that." (Bell, supra, 179 Cal.App.4th at pp. 438-439.)

In Bell, the defendant drove away with his former wife in the passenger seat, after he was approached by police attempting to arrest him. He traveled about 70 yards down the street, stopped to let the victim out, and then continued his reckless evasion of the police. (Bell, supra, 179 Cal.App.4th at pp. 432-433.) He was convicted of both reckless evasion and kidnapping. (Id. at p. 433.) The trial court gave the same instruction the trial court gave in this case and, as here, did not give the optional language, which stated, " 'In order for the defendant to be guilty of kidnapping, the other person must be moved or made to move a distance beyond that merely incidental to the commission of [the associated crime].' " (Id. at p. 440; CALCRIM No. 1215.)

Bell held that it was reversible error not to have given an instruction directing the jury to consider whether the movement of the victim had been merely incidental to the crime of reckless evasion. (Bell, supra, 179 Cal.App.4th at pp. 439-440.) Given the evidence, the jury could have decided that the defendant's movement of the victim 70 yards down the street was not substantial but merely incidental to the associated crime. (Id. at p. 440.) Bell also held that the bracketed language in CALCRIM No. 1215 was misleading because it suggested that the "merely incidental" finding was a threshold consideration. Bell believed that the language in the pattern instruction could have led a jury to think that it had to acquit a defendant if "the movement was compelled 'in the course of' committing the associated crime, regardless of the increased risk of danger to the victim, or, for that matter, that the distance was 'substantial' by any reasonable measure." (Bell, supra, at p. 440.) Thus, according to Bell, a correct instruction would be: " '[I]n addition to considering the actual distance moved, you may also consider other factors such as whether the [distance the other person was moved was beyond that merely incidental to the commission of the crime of evading a police officer]' " or the other circumstances currently listed in CALCRIM No. 1215. (Bell, supra, at pp. 440-441.)

Ortiz maintains that the criminal threat and dissuading a witness crimes were associated with the asportation of Hernandez since he was threatened while he was in the car with defendants as they drove from Marina to Monterey to beat up Cabrera. Ortiz also argues that the asportation facilitated the torture and assault crimes because it prevented Hernandez from going for help. Thus, according to Ortiz, had the jury been correctly instructed, the jury might have decided the movement was not "substantial" because the movement was merely incidental to these associated crimes. We are convinced beyond a reasonable doubt that such an instruction would not have affected the verdict. (See Chapman v. California, supra,386 U.S. 18, 24.)

Even if the jury were to have found that the movement of Hernandez was incidental to one or more of the other crimes Ortiz committed, any reasonable jury would still have found the movement to be substantial. Ortiz moved Hernandez from Marina to Monterey. While the precise distance between the two cities does not appear in the record, we may take judicial notice of the fact that Marina is at least six miles from Monterey.*fn6 Considering only the actual distance moved, the movement was " 'substantial' by any reasonable measure." (Bell, supra, 179 Cal.App.4th at p. 440.) Application of all the other factors further supports a finding that the movement was "substantial." The movement increased the risk of harm to Hernandez and the danger inherent in his foreseeable attempt to escape; it gave his attackers opportunity to commit additional crimes against him; it decreased the likelihood of detection by keeping Hernandez away from his workplace and away from any other public place where he might have attracted attention or called for help. No reasonable jury would have found that simply because Ortiz committed additional crimes against Hernandez while he drove him from Marina to Monterey, or because the movement prevented Hernandez from calling for help before defendants could get to Cabrera, that the movement was merely incidental to these other crimes and not "substantial" in and of itself. We conclude, therefore, that even if the instruction should properly have been given, the failure to do so did not affect the result.

H. Villa's Sentence under Section 136.1

When sentencing a defendant to consecutive terms for the crime of dissuading a witness (§ 136.1), the trial court must impose the full middle term rather than the usual one-third the mid-term. (§ 1170.15.) Three years is the middle term for dissuading a witness by force or threat of force. (§ 136.1, subd. (c)(1).) Absent force or threat, the middle term for the crime is two years. (§§ 136.1, subd. (b), 18.)

Villa was convicted of two counts of violating section 136.1. The jury found that he had threatened or used force in connection with count 12 but not in connection with count 11. Thus, in sentencing Villa to consecutive terms for counts 11 and 12, the court should have imposed two years for count 11 and three years for count 12. Instead, the court imposed three years for both crimes. Villa maintains this was error. The Attorney General argues that Villa forfeited the claim by failing to object below.

Under People v. Scott (1994) 9 Cal.4th 331, appellate intervention is appropriate even absent an objection where the sentenced is unauthorized, namely, where it "could not lawfully be imposed under any circumstances in the particular case." (Id. at p. 354.) In contrast, the lack of an objection forecloses appellate review of discretionary sentencing choices--those "which, though otherwise permitted by law, were imposed in a procedurally or factually flawed manner." (Ibid.) Unauthorized sentences are reviewable because the errors present pure questions of law and are correctable independent of any factual issues presented by the record. (People v. Smith (2001) 24 Cal.4th 849, 852.)

The Attorney General maintains that the three-year sentence for count 11 "could lawfully be imposed" and, therefore, that Scott does not apply. We do not see how a three-year term would be lawful under the circumstances and the Attorney General does not explain the assertion. Accordingly, we agree with Villa that the three-year sentence for count 11 was unauthorized and that the error is reviewable absent an objection below. We shall modify the judgment to reflect the correct sentence for that count.



As to defendant Marco Villapudua Villa, the judgment is modified to reduce the three-year term for count 11, violation of Penal Code section 136.1, subdivision (b), to two years, thus reducing the determinate part of the sentence to 12 years. As so modified, the judgment is affirmed. The Monterey County Superior Court is directed to prepare an amended abstract of judgment reflecting the modification and to forward the amended abstract to the Department of Corrections and Rehabilitation.

As to defendant Samuel Perez Ortiz, the judgment is affirmed.


Elia, J.

McAdams, J.

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