People v. Castillo

• Decision Date: 09 August 1991
• Docket Number: No. B035678,B035678
• Citation: 233 Cal.App.3d 36,284 Cal.Rptr. 382
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Refugio B. CASTILLO, et al., Defendants and Appellants.

Page 382

284 Cal.Rptr. 382

233 Cal.App.3d 36

The PEOPLE, Plaintiff and Respondent, v. Refugio B. CASTILLO, et al., Defendants and Appellants.

No. B035678.

Court of Appeal, Second District, Division 4, California.

Aug. 9, 1991.

As Modified Aug. 14, 1991.

As Modified on Denial of Rehearings

Aug. 30, 1991.

Certified for Partial Publication ^*

Review Denied Nov. 14, 1991.

[233 Cal.App.3d 42] Jeffrey A. Joseph, under appointment by the Court of Appeal, San Diego, for defendant and appellant Refugio B. Castillo.

Sharon G. Wrubel, under appointment by the Court of Appeal, Pacific Palisades, for defendant and appellant Jose Fernandez Garcia.

Richard Jay Moller, under appointment by the Court of Appeal, Redway, for defendant and appellant Byron Robert Mendizaval.

Carlo Andreani, under appointment by the Court of Appeal, San Francisco, for defendant and appellant Carlos Diaz Ramirez.

Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Edward T. Fogel, Jr., Sr. Asst. Atty. Gen., Carol Wendelin Pollack, Supervising Deputy Atty. Gen., and Beverly K. Falk, Deputy Atty. Gen., for plaintiff and respondent.

EPSTEIN, Associate Justice.

In the published portion of this opinion we conclude that a defendant in a criminal proceeding, who becomes indigent after retaining defense counsel, is not necessarily denied effective representation by reason of a trial court decision not to accord appointed status to his counsel in order to assure that the attorney is paid. We do this in the context of attorneys who are willing to serve, and clients who do not seek their discharge or replacement. We also decide that the bodily harm provision of the aggravated kidnapping statute (Pen.Code, § 209, subd. (a)) ¹ is not unconstitutionally vague, and that the punishment of life imprisonment without possibility of parole for aggravated kidnapping with bodily harm does not violate proscriptions against excessive punishment. Other issues peculiar to the case are determined in the unpublished portion of this opinion.

PROCEDURAL SUMMARY

The appellants, Refugio Castillo, Carlos Ramirez, Jose Garcia and Byron Mendizaval, together with a fifth defendant, Jorge Cardoza, were charged with several counts of aggravated kidnapping with bodily harm, and conspiracy. Cardoza was acquitted on all charges; the other appellants appeal from their several convictions.

The information alleged the kidnap of two persons, Luis Freddy Ospena Suarez (referred to in the record and here as Suarez), and Adolfo Monsalve Castano (Monsalve).

Counts I and II related to the kidnapping of Suarez. They alleged, respectively, kidnap for ransom and for robbery. Each alleged that the victim suffered bodily harm, that a principal was armed with a firearm in the commission of the offense (§ 12022, subd. (a)(1)), and that each defendant was personally so armed (§ 12022.5, subd. (a)). Counts III and IV repeated the allegations of the first two counts, but related to the kidnapping of Monsalve. The final count, V, alleged conspiracy to commit the crime of aggravated kidnapping (§§ 182, subd. (a)(1) and 209, subd. (a)).

The case was tried to a jury, which convicted each appellant of kidnapping Suarez for ransom as alleged in count I. The jury found the bodily harm and armed principal allegations to be true, and found that appellant Garcia was personally armed with a firearm in the commission of the offense.

Appellants were found not guilty of kidnapping Suarez for robbery, as alleged in count II. They were convicted of lesser included offenses to that count: simple kidnapping (§ 207), and robbery (§ 211). All but appellant Mendizaval also were convicted of false imprisonment (§ 236). The armed principal allegation was found to be true, and appellant Garcia was found to have personally used a firearm in the commission of the offense.

Appellants also were acquitted of the crimes alleged in counts III and IV, concerning the kidnapping of Monsalve. But each was convicted of the lesser crime of simple kidnapping and, with respect to count IV, of robbery. As with the other counts, the jury found that a principal was armed and that Garcia had personally used a firearm in the commission of the crime.

Each appellant also was convicted of conspiracy, as alleged in count V.

At sentencing, the trial judge applied the principles of section 654, relating to multiple punishment, and section 669, relating to consecutive sentencing. As a result, each appellant was sentenced to life imprisonment without possibility of parole, as authorized by section 209, subdivision (a) for kidnapping for ransom with bodily harm. Additional consecutive terms were added: 7 years for Castillo (one year for armed use by a principal on count I, and 6 years for other counts); 9 years for Garcia (2 years for personal use on count I, and 7 years for the other counts); 1 year for Ramirez (for armed use by a principal on count I); and 1 year for Mendizaval (also for armed use by a principal on count I).

FACTUAL SUMMARY

In reviewing the factual issues presented on appeal, we consider all evidentiary disputes to have been resolved in favor of the judgment. (See People v. Johnson (1980) 26 Cal.3d 557, 578, 162 Cal.Rptr. 431, 606 P.2d 738; Jackson v. Virginia (1979) 443 U.S. 307, 318, 99 S.Ct. 2781, 2788, 61 L.Ed.2d 560.) We present a general summary of the facts at this point, reserving a discussion of particular facts for fuller treatment in our discussion of the issues to which they pertain.

The record reflects the brutal kidnapping of two persons for ransom, their captivity, the release of one of them in an effort to aid in the extraction of ransom for the other, two ransom payments (one real and one feigned), and the recapture of the remaining kidnap victim.

1. The Abduction

The kidnapping occurred on the morning of Friday, November 20, 1986, in Los Angeles. The kidnap victims were Suarez and Monsalve. Both were natives of Colombia, South America. Suarez was employed at an automotive garage located near the Los Angeles County General Hospital. The business was called Little Joe's, and was owned by Jose Esqueda, an individual who will figure further in the events that followed. Monsalve was seeking employment with Esqueda, and was about to start working with paint at his establishment.

Suarez and Monsalve had come downstairs from the apartment they shared, planning to do some laundry and then go to work at the garage. Suarez was already in his car when a white van suddenly appeared in the driveway behind his vehicle. Monsalve saw the van approach as he was coming out of the stairway. Four armed men exited the rear of the van. One told Monsalve, "Do not move, bastard." Monsalve was forced into the van, where he was kicked, struck with the butt of a gun, taped and handcuffed. A blanket was thrown over his head.

One of the men pointed a shotgun at Suarez; he was ordered into the van. Once there, he was struck hard behind his left ear and thrown onto the floor. His hands were handcuffed behind him and handcuffs also were placed on his ankles. Suarez' rent money was then taken from his person, and he was placed face down on the floor of the van and covered with a blanket.

Although faint from the attack, Suarez could hear four voices. He recognized one of them as Mexican and the other three as Peruvian.

2. The Trip

The van then left the place of abduction. During the ride, which lasted almost an hour, Suarez was stripped of his clothes, and his abductors threatened to rape him unless he gave them money. The battering that he had suffered before the van left was continued during the trip. Suarez was struck on both sides of his face and on his jawbone. He also was hit all over his body. Some of the blows were inflicted by kicking, and some by an object such as a stick or a shotgun. This was the beginning of a prolonged ordeal during which Suarez was repeatedly beaten. By the time of trial, in 1987, he had undergone knee surgery which he related to the beatings, and still had trouble with some movements.

During the trip, the abductors spoke of money and told Monsalve and Suarez that they would be killed and their bodies thrown in the desert. Monsalve was told that the abductors had come to collect a debt owed by Suarez.

When the van finally stopped, a watch, house keys and money were taken from Monsalve. Another person entered the van, and, speaking with a Peruvian accent, said that he wanted a lot of money, and that he was going to kill Suarez. He proceeded to kick Suarez.

3. The Captivity

Monsalve and Suarez were held inside the van at the place where it stopped for about five hours. Monsalve was allowed to relieve himself outside the vehicle; Suarez was not permitted that amenity. Monsalve also was given something to eat; Suarez was not. Monsalve eventually was taken from the van into a house, where he was placed inside a closet. He was kept there for four to five days, allowed out of the closet only to use the bathroom. While in this captivity, he heard the names Luis, El Loco, Jorge and El Chino. He also heard a woman's voice asking for Luis.

After four to five days, Monsalve was taken back into the van and transported with four other occupants to the vicinity of 6th and Alvarado in Los Angeles. Before being released at that location, he was told that he would be given Suarez' papers, telephone book and documents (evidently these had been taken from the victims' apartment during their captivity), with the explanation that he was being given these items to enable him to call and obtain $80,000 or four kilos of cocaine as ransom for Suarez's release. Monsalve was told that he would be contacted at the body shop.

Suarez was held in the van for a day and a half. He was blindfolded all of that time, and was able to keep track of the time by the radio, which his captors played loudly. He was finally taken into the house, where he was kept in a closet. For several days, he was not allowed...