People v. Delvalle

• Decision Date: 08 July 1994
• Docket Number: No. B072276,B072276
• Citation: 26 Cal.App.4th 869,31 Cal.Rptr.2d 725
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Luis Alberto Molina DELVALLE, Defendant and Appellant.

Page 725

31 Cal.Rptr.2d 725

26 Cal.App.4th 869

The PEOPLE, Plaintiff and Respondent, v. Luis Alberto Molina DELVALLE, Defendant and Appellant.

No. B072276.

Court of Appeal, Second District, Division 3, California.

July 8, 1994.

Review Denied Oct. 13, 1994.

[26 Cal.App.4th 871] Daniel G. Koryn, Oxnard, under appointment by the Court of Appeal, for defendant and appellant.

Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Carol Wendelin Pollack, Sr. Asst. Atty. Gen., William T. Harter, Supervising Deputy Atty. Gen. and Patrick T. Brooks, Deputy Atty. Gen., for plaintiff and respondent.

KLEIN, Presiding Justice.

Defendant and appellant Luis Alberto Molina Delvalle appeals the judgment (order granting probation) entered following his conviction of two counts of attempting to buy a person. (Pen.Code, § 181.) ¹

Because the evidence supports the convictions and the conditions of probation are reasonably related to Delvalle's offense, the judgment is affirmed.

FACTUAL AND PROCEDURAL BACKGROUND

1. The People's case in chief.

Viewed in accordance with the usual rule of appellate review (People v. Thomas (1992) 2 Cal.4th 489, 514, 7 Cal.Rptr.2d 199, 828 P.2d 101; People v. Johnson (1980) 26 Cal.3d 557, 575-578, 162 Cal.Rptr. 431, 606 P.2d 738), the evidence established that Orozco lived in Lynwood. Her four-year-old daughter attended kindergarten a short distance from their home. Orozco walked the child to and from school each day. On July 14, 1992, at 11:30 a.m., Orozco saw Delvalle outside the school in his car. Orozco had never seen Delvalle before. He called to Orozco and "asked [her] to give him the girl." Orozco said, " 'No,' " and continued walking. Orozco recalled his exact words were: " 'Could you give me the girl?' " Delvalle then asked "[i]f [Orozco] would sell her to him." When Orozco again said no, Delvalle offered her money although he did not say how much. Orozco again said no and walked home "fast."

Delvalle followed Orozco and her child home in his car and repeated his demands two or three more times that day. Orozco testified, "All the time he would tell me to give him the girl." "The first time [he said] to give him the girl. To sell her to him. And how much I wanted. [p] I went towards my house. When I arrived to my house--he was parked in front of the house. I didn't get to my house. I went inside my neighbor's house, right by my house. I was afraid to go to my house. Because he was parked there."

Two days later, on July 16, 1992, Orozco again walked her daughter home from school and saw Delvalle driving the same car. Orozco tried to avoid Delvalle but he drove up to her and again asked Orozco to sell the child to him. He also told Orozco "to give him the girl." Delvalle asked Orozco for the girl twice that day.

The next day, July 17, 1992, Orozco saw Delvalle again but does not recall if he spoke to her.

On Monday, July 20, 1992, Delvalle followed Orozco and the child home from school in a blue pickup truck and said "the same words, if I would give him the girl, or if I would sell her to him." Orozco continued walking quickly. Delvalle drove ahead of them and moved over in the truck to the passenger door which was closest to the sidewalk. Orozco told her daughter to run. Delvalle asked Orozco for the child three or four times that day.

On cross-examination Orozco testified the Spanish words spoken by Delvalle were, "de me a la nina" and "vendame a la nina." Orozco testified Delvalle did not speak the Spanish words written on defense exhibit A which were: "Me la das, o me la vendes."

Orozco reported the matter, and on July 23, 1992, sheriff's detective Elizabeth Smith walked home with Orozco and her child. Delvalle drove next to them and stopped. Orozco pointed Delvalle out to Smith. Delvalle looked at Smith with a startled expression and drove away quickly. Smith made a radio broadcast and Delvalle was arrested.

After advising Delvalle of his rights per Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, , Smith told Delvalle he was charged with attempting to buy a child. Delvalle responded he had only waved to the child once. He said "he had passed by the girl and waved at her. He ... had seen her before and he had admired her." Delvalle admitted he did not know the girl and referred to her in his statements as "nina" which means small girl. However, Delvalle then said, "Oh, you thought I was talking about the little girl, I was talking about the big girl. The one that's about 20 or 21 years old." Delvalle told Smith he thought Orozco was attractive and wanted to speak to her.

2. Defense.

Defense investigator Richard Arrellano testified he interviewed Orozco on October 13, 1992, at her residence. Orozco told Arrellano the exact language used by Delvalle was, "Me la das, o me la vendes." Arrellano claimed these words can be interpreted as, "Will you give it to me, or will you sell it to me," or "would you give her to me, or would you sell her to me." Arrellano previously has heard the statement used as a crude sexual proposition directed to an adult woman.

Beatriz Overfield, an interpreter for the Superior Court, testified "Me la das, o me la vendes" could mean a proposition to a woman or a compliment directed at an object or a female child. In Guatamala this phrase commonly is used to compliment a child in the presence of a parent. It means the speaker would like to have a child like that. ²

3. Rebuttal.

Orozco was recalled and testified she was frightened of Delvalle. He did not compliment, greet or converse with Orozco in a friendly way. Orozco could see Delvalle was referring to her daughter by the movement of his head and eyes.

Maria De Alvarado, counsel to the Guatemalan Consulate in Los Angeles, testified she was a judge in Guatemala for five years and had presided over cases involving prostitution. She interprets the phrases on defense exhibit A to mean handing over or buying an object. If the statement was made to an adult female in the presence of a child, it would mean, "Will you give me the girl?" or, "Will you sell me the girl?" The phrases do not infer a sexual proposition.

John Ulmen, counsel with the Guatemalan consulate in Los Angeles, testified the phrases on defense exhibit A indicate someone is "asking for something to be given to them or sold to them." These words would not be used to proposition an adult woman. Ulmen also observed "there is a growing problem in Guatemala, because of children for adoption, of stealing and buying and selling children."

Jose Araluce-Cuenca, an expert in the contemporary and historical usage of different forms of Spanish, testified the phrases on defense exhibit A refer to a female person or an object of the female gender which is someone other than the person being addressed. These phrases are interpreted: "Give it to me or give her to me." "Sell it to me or sell her to me." If these words were spoken to an adult female accompanied by a small girl, the demand would refer to the child.

4. The trial court's ruling.

The trial court considered the alleged offense to be a specific intent crime because of the attempt to buy language in the statute. It found Delvalle guilty of two counts of violating section 181 related to Delvalle's conduct on July 14 and 16, 1992. ³

CONTENTIONS

Delvalle contends there is insufficient evidence to support the convictions. Alternatively, he claims his conduct will not support conviction of two counts of attempting to buy a person. Delvalle also asserts the condition of probation requiring him to stay away from places where minor children congregate must be stricken because it forbids noncriminal conduct and violates his constitutional rights.

DISCUSSION

1. The evidence supports Delvalle's conviction of attempting to buy a person.

Delvalle contends his conduct did not "establish an 'attempt' under ... section 181, as his requests, if anything, amounted to nothing more than a mere 'solicitation' to purchase the minor child." He claims "the evidence revealed unsolicited, harassing conduct by appellant" but not "an 'attempt' to buy another person...." He asserts he never got out of his car or displayed any money. He contends his conduct amounts to nothing more than preparation and does not constitute an attempt.

This claim lacks merit.

" 'It is settled that an attempt to commit a crime is compounded of two elements, viz., intent and a direct ineffectual act done toward its commission. It is equally well settled that there is a material difference between the preparation antecedent to an offense and the actual attempt to commit it. The preparation consists of devising or arranging the means or measures necessary for the commission of the offense, while the attempt is the direct movement toward its commission after the preparations are made. In other words, to constitute an attempt the acts of the defendant must go so far that they would result in the accomplishment of the crime unless frustrated by extraneous circumstances. [Citations.]' [Citations.]" (People v. Memro (1985) 38 Cal.3d 658, 698, 214 Cal.Rptr. 832, 700 P.2d 446.)

"[A]n attempt, as distinguished from acts preparatory to that offense, requires 'some appreciable fragment of the crime ... accomplished.' [Citations.] However, '[a]n overt act need not be the ultimate step toward the consummation of the design; it is sufficient if it is the first or some subsequent act directed towards that end after the preparations are made.' [Citations.]" (People v Memro, supra, 38 Cal.3d at p. 698, 214 Cal.Rptr. 832, 700 P.2d 446.)

Further, " '[w]henever the design of a person to commit a crime is clearly shown, slight acts done in furtherance of that design will constitute an attempt, and the courts should not destroy the practical and common-sense administration of the law with subtleties as to what constitutes preparation and what constitutes an act done toward the commission of a crime.' [Citations.]" (...