People v. Anderson

• Decision Date: 28 September 1979
• Docket Number: Cr. 8923
• Citation: 158 Cal.Rptr. 727,97 Cal.App.3d 419
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Douglas Edward ANDERSON, Defendant and Appellant.

Page 727

158 Cal.Rptr. 727

97 Cal.App.3d 419

The PEOPLE, Plaintiff and Respondent, v. Douglas Edward ANDERSON, Defendant and Appellant.

Cr. 8923.

Court of Appeal, Fourth District, Division 1, California.

Sept. 28, 1979.

Appellate Defenders, Inc., Judith Smith Leland and Kenyon C. Keller and Paul G. Mast, San Diego, for defendant and appellant

George Deukmejian, Atty. Gen., Jack R. Winkler and Robert H. Philibosian, Chief Asst. Attys. Gen., Daniel J. Kremer, Asst. Atty. Gen., Harley D. Mayfield, A. Wells Peterson and Robert M. Foster, Deputy Attys. Gen., for plaintiff and respondent.

WIENER, Associate Justice.

A jury convicted Douglas Edward Anderson of kidnapping for ransom (Pen.Code, § 209) and first degree burglary (Pen.Code, § 459). ¹ He appeals from the judgment, questioning the sufficiency of the evidence, evidentiary rulings, competence of defense counsel, conduct of the prosecutor, and jury instructions. We conclude his arguments are without merit and affirm the judgment.

SUFFICIENCY OF THE EVIDENCE

Defendant contends his section 995 motion should have been granted because there was insufficient evidence to have held him to answer to the charge of kidnapping for ransom ( § 209). He also argues the evidence was insufficient for the jury to have found him guilty of that charge. In order to avoid a repetition in the statement of facts, the summary which follows contains only those facts which were presented at both the preliminary hearing and at trial.

At approximately 8:00 p. m. on June 6, 1976, Mrs. Judy Silberberger and her baby were at their home in Fallbrook. Upon seeing headlights pull up in her driveway, she turned on the outside light and unlocked the front door. It was not her father, whom she had been expecting, but San Diego County Deputy Sheriff Charles Patrick was on routine patrol when he received a radio call to go to the Silberberger residence to investigate a report of a burglary in progress. At the residence, he entered through the front door. As he did so, Mrs. Silberberger grabbed Wasko's gun. Anderson, who had run into the bedroom, surrendered upon the officer's demand.

Anderson's co-defendant, Joseph Michael Wasko. He entered the house, put his arm around her waist and a gun to her side. He said he was with the CIA and asked if she were Mrs. Silberberger. She said "Yes." This question was asked before Mrs. Silberberger had mentioned her name. Before she told him she had a baby, he asked her if her baby was in the house. As Wasko began walking Mrs. Silberberger from the living room area, she heard the front door close and saw the defendant. Wasko told her not to get panicky; he was only interested in getting money from her husband. He then handcuffed her to the refrigerator. While she was handcuffed, the phone rang. Mrs. Silberberger told Wasko if she did not answer the telephone, the caller would become suspicious because she was always at home. When the phone rang again, Wasko brought the phone to her. The caller was a friend, Anita McCusker, who was able to tell something was wrong. Mrs. McCusker asked if there was trouble. When Mrs. Silberberger said, "yes," Mrs. McCusker inquired if she should call the police. Mrs. Silberberger said "Yes." The telephone call ended. Wasko then asked Mrs. Silberberger how she could reach her husband. She told him by a telephone call. He then unhandcuffed her and took her back to the living room. Wasko wanted to know how fast she could contact her husband. Mr. Silberberger, a wealthy contractor, had the means of producing a substantial amount of cash. She replied just by a telephone call. When Mrs. Silberberger told Wasko her husband drove a Mercedes 450 SEL, he corrected her by stating she meant a 450 SL. He also said if Mrs. Silberberger's father arrived, they would have to take him hostage.

The thrust of the defendant's argument with reference to the sufficiency of the evidence at both the preliminary hearing and at trial is directed to the lack of significant movement by either Mrs. Silberberger or her infant son. (See People v. Daniels (1969) 71 Cal.2d 1119, 1139, 80 Cal.Rptr. 897, 459 P.2d 225.) Asportation movement for any distance, or at all, is not essential to the crime of kidnapping for ransom. (People v. Macinnes (1973) 30 Cal.App.3d 838, 106 Cal.Rptr. 589.) The illustration used by the Macinnes court in explaining its holding is remarkably similar to the case before us except for the fortunate and prompt intervention by law enforcement.

"(W)here an assailant seizes the banker's wife in the banker's home (with asportation of the wife) and telephones the banker for ransom, . . . the banker is the victim of an extortion, and the banker's wife is the victim of having been 'seize(d) . . . to commit extortion' (Pen.Code, § 209) upon the banker." (Id., at p. 844, 106 Cal.Rptr. at p. 592.)

There was ample evidence to support the ruling by the committing magistrate and the verdict of the jury. Defendant and his cohort had seized Mrs. Silberberger; they made it clear they were after money; they were willing to take another hostage if necessary Mrs. Silberberger's father. The elements of section 209 seizures with the specific intent to hold for ransom or to obtain something of value from relatives were met.

JURY INSTRUCTIONS

Anderson contends the trial court erred by not instructing Sua sponte an attempted kidnapping for ransom. He correctly states the general rule that a crime necessarily includes an attempt to commit that crime. ( § 1159; People v. Vanderbilt (1926) 199 Cal. 461, 249 P. 867; CALJIC (4th ed.) Appendix C, General Rules, Attempts, p. 331; cf. In re James M. (1973) 9 Cal.3d 517, 108 Cal.Rptr. 89, 510 P.2d 33 (attempted assault is not a crime); People v. Duens (1976) 64 Cal.App.3d 310, 134 Cal.Rptr. 341 (attempted assault to commit rape is not a There is a similarity between the completed crime of kidnapping for ransom and the attempt to commit a crime under section 1159, for in both situations the conduct need not be successful in bringing about the desired results. An attempt to commit a crime consists of (1) the specific intent to commit the crime, and (2) a direct but Ineffectual act done toward its commission. (1 Witkin, California Crimes, §§ 93-102, pp. 90-97; People v. Franquelin (1952) 109 Cal.App.2d 777, 783-785, 241 P.2d 651.) The crime of kidnapping for ransom is complete when the kidnapping is done for the specific purpose of obtaining ransom even though the purpose is not accomplished. To define kidnapping for ransom otherwise would overlook the underlying gravity of the offense with an unwarranted emphasis on the success of the criminal activity.

crime).) He is also correct in the general statement that the obligation to give a Sua sponte instruction includes giving instructions on lesser included offenses when the evidence raises a question as to whether all of the elements of the charged offense are present. (People v. Sedeno (1974) 10 Cal.3d 703, 715, [97 Cal.App.3d 425] 112 Cal.Rptr. 1, 518 P.2d 913.) However, one exception to the general rule is where the defendant is either guilty of the offense charged or not guilty at all. (People v. Wells (1970) 13 Cal.App.3d 265, 277, 91 Cal.Rptr. 460; People v. Morrison (1964) 228 Cal.App.2d 707, 716, 39 Cal.Rptr. 874, see generally CALJIC No. 17.10 Use Note; Cal.Benchbook (1971) 6.D Lesser Included Offenses, pp. 258a-258b.)

Trial counsel for defendant was faced with a tough case. Defendant was arrested at the scene after a series of events which at best indicated some criminal activity. The seizure of Mrs. Silberberger was complete. After his arrest, defendant told the police he "only" wanted to rob and burglarize; he had no intent or plan to kidnap for ransom. The only question which defendant could reasonably present to the jury was his intent. If he intimated he was at the residence for the purpose of kidnapping, this was tantamount to his admission of guilt. He has little choice but to elect a strategy which excluded the crime of attempted kidnapping. Where the giving of the instruction is in direct conflict with the defense theory, the court does not have the Sua sponte duty of giving that instruction. (People v. Sedeno, supra, 10 Cal.3d at pp. 716-717, 112 Cal.Rptr. 1, 518 P.2d 913.) The court was most meticulous in discussing instructions with counsel both before the jury was instructed and during their deliberations when the jury had a question involving the unsuccessful result of the kidnapping. As noted above, there is a common element in an attempt to commit a crime and an unsuccessful kidnapping. Understandably, this similarity in the crimes may have caused the jury to ponder and request a further explanation. The court was justified in not giving the instruction on attempted kidnapping in light of counsel's theory of defense and the absence of evidence to support that instruction. (People v. Wells, supra, 13 Cal.App.3d at p. 277, 91 Cal.Rptr. 460.)

INCOMPETENCE OF COUNSEL

Defendant claims his trial counsel was incompetent because he did not receive the reasonably competent assistance of an attorney acting as his diligent conscientious advocate. (People v. Pope (1979) 23 Cal.3d 412, 424-425, 152 Cal.Rptr. 732, 590 P.2d 859.) Defendant has the burden of showing counsel was incompetent. Where the record does not affirmatively reflect counsel's ignorance of the facts or the law in making a decision, it will be presumed it was made on a valid tactical basis. Where there are matters outside the record which defendant believes establish incompetence, a writ of habeas corpus should be sought. (Id., at pp. 425-426, 152 Cal.Rptr. 732, 590 P.2d 859.) Each of counsel's alleged failings is discussed separately.

1. The Failure to Ask for Jury Instructions on Attempted Kidnapping for Ransom.

We reject this argument for the same reasons as discussed above.

2. Failure to Move to Suppress Evidence.

Defendant asserts his counsel should have made a ...