People v. Greenberger

• Decision Date: 02 October 1997
• Docket Number: No. B066399,B066399
• Citation: 68 Cal.Rptr.2d 61,58 Cal.App.4th 298
• Parties: E, 58 Cal.App.4th 298, 97 Cal. Daily Op. Serv. 7811, 97 Daily Journal D.A.R. 12,554 The PEOPLE, Plaintiff and Respondent, v. Karen DeLayne GREENBERGER et al., Defendants and Appellants.
• Court: California Court of Appeals Court of Appeals

Page 61

68 Cal.Rptr.2d 61

58 Cal.App.4th 1308E, 58 Cal.App.4th 298,

97 Cal. Daily Op. Serv. 7811,

97 Daily Journal D.A.R. 12,554

The PEOPLE, Plaintiff and Respondent, v. Karen DeLayne GREENBERGER et al., Defendants and Appellants.

No. B066399.

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

Oct. 2, 1997.

Certified for Partial Publication. ^*

As Modified on Denial of Rehearing Oct. 31, 1997.

Review Denied Jan. 14, 1998.

Eric S. Multhaup, Mill Valley, Kathy M. Chavez, Kim Malcheski, San Francisco, Vicki I. Podberesky, Santa Monica, and Rodger Paul Curnow, under appointments by the Court of Appeal, Oakland, for Defendants and Appellants.

Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Carol Wendelin Pollack, Senior Assistant Attorney General, John R. Gorey and Susan D. Martynec, Supervising Attorneys General, Brad D. Levenson, Victoria Bedrossian and Shawn A. McGahey, Deputy Attorneys General, for Plaintiff and Respondent.

WEISBERG, Associate Justice. ^**

In the published portion of this opinion we decide that a defendant's declarations against interest may be received in a joint trial without denying the codefendant the right of confrontation guaranteed by the United States Constitution. We further conclude that the trial court properly denied motions

of each defendant to sever. We also determine that the trial court properly instructed the jury on the charge of aggravated kidnapping and did not err in refusing to instruct on time-barred lesser offenses. In the unpublished portion of this opinion, with the exception of defendant Lowe's contention that the trial court erred in imposing concurrent sentences, we conclude that the numerous other issues raised by the defendants lack merit. We therefore modify Lowe's judgment by staying the sentence imposed for second degree murder until completion of the term imposed for aggravated kidnapping, at which time the stay is to become permanent, and affirm the judgment as modified. We affirm the judgments as to Greenberger, Mentzer and Marti.

I. PROCEDURAL HISTORY

The defendants Karen DeLayne Greenberger (Greenberger), William Molony Mentzer (Mentzer), Alex Lomota Marti (Marti) and Robert Ulmer Lowe (Lowe) were tried jointly in a jury trial which commenced on September 4, 1990. The defendants were charged with the following crimes in the amended information: Count 1 alleged the crime of murder in violation of PENAL CODE SECTION 187¹, subdivision (a), and count 2 alleged the crime of aggravated kidnapping in violation of section 209, subdivision (a). Count 1 also alleged the special circumstances that the murder was committed for financial gain and during the commission of kidnapping within the meaning of section 190.2, subdivisions (a)(1), (a)(17) and (b). Count 2 alleged that the victim had suffered bodily harm and death. Counts 1 and 2 also alleged that Marti and Mentzer personally used a firearm within the meaning of sections 12022.5 and 1203.06, subdivision (a)(1). Both counts alleged pursuant to section 12022, subdivision (a) that a principal in the commission of the offense was armed with a firearm. The victim in both counts was Roy Radin. ²

On July 19, 1991 the jury found Mentzer and Marti guilty of first degree murder and found the special circumstance allegations that the murder had been committed for financial gain and in the commission of a kidnapping to be true. The jury found Greenberger and Lowe guilty of second degree murder in count 1. The jury found all defendants guilty of aggravated kidnapping resulting in death in violation of section 209, subdivision (a) in count 2. The allegations of personal use of a firearm were found true as to Mentzer and Lowe in both counts, and the allegation of a principal armed with a firearm was found true as to all defendants in both counts.

On October 18, 1991 the penalty phase of the trial resulted in jury verdicts of life in prison without the possibility of parole (LWOP) for Mentzer and Lowe. The trial court sentenced all four defendants to LWOP for count 2. For count 1, Greenberger and Lowe were sentenced to 15 years to life in prison, and Mentzer and Marti were sentenced to LWOP. Enhancements of two years pursuant to section 12022.5 were imposed on Mentzer and Marti. Enhancements of one year pursuant to section 12022, subdivision (a) were imposed on Greenberger and Lowe. The trial court stayed the sentences and enhancements imposed on Greenberger for count 1 and the sentences and enhancements imposed on Mentzer and Marti for count 2 pursuant to section 654 and ordered the sentences in both counts imposed on Lowe to run concurrently. ³ Enhancements Each defendant filed a timely notice of appeal. ⁴

of one year pursuant to section 12022, subdivision (a) in count 1 were stayed for Lowe and Marti.

II. THE FACTS

A. THE PROSECUTION'S CASE

The prosecution presented evidence to support its theory that defendant Greenberger hired defendants Mentzer, Marti and Lowe to kidnap and murder Roy Radin because Radin had cut her out of a Hollywood movie deal and had been involved in the theft of cocaine and money from her house.

Radin-Greenberger Relationship

Roy Radin (Radin), the victim in both counts, was involved in the entertainment business in New York. He was interested in producing a movie to be called The Cotton Club. The name of the proposed movie derived from a nightclub of the same name. Radin met Greenberger in January 1983 in Los Angeles. Greenberger, who was involved in the illegal distribution of cocaine in Los Angeles, expressed an interest in assisting Radin in his efforts to make The Cotton Club. She also supplied cocaine to him. Greenberger introduced Radin to Tally Rogers, who worked for Greenberger in distributing cocaine. Rogers and Radin became friends.

Greenberger also introduced Radin to Hollywood film producer Robert Evans in April 1983. Evans was also interested in making a movie based on the Cotton Club. If Evans and Radin consummated a deal, Greenberger expected to be paid $50,000 as a finder's fee. Greenberger also hoped to have either financial participation or employment in the production company that would ultimately make the movie.

Radin arranged for financing and conducted negotiations with Evans. Although Evans, who had befriended Greenberger, wanted to allow Greenberger some limited participation in the final contract, Radin refused. This resulted in an emotional confrontation between Greenberger and Radin in April 1983. Evans was interested in buying out Radin and proceeding without him. However, Radin intended to go through with the production with Evans.

Theft From Greenberger

On April 18, 1983 someone stole ten kilograms of cocaine and $275,000 in cash from Greenberger's home in Sherman Oaks. Greenberger suspected that Tally Rogers, who had disappeared, had committed this theft. She had received the cocaine from Milan Bellachasses and was afraid that she would be held responsible by Bellachasses for the loss of the cocaine and money. Bellachasses was a major cocaine distributor in Miami and Greenberger's supplier. Upon discovery of the theft Greenberger hired Mentzer as a bodyguard. Marc Fogel had introduced her to Mentzer. Greenberger had supplied cocaine to Fogel in the past.

Greenberger called Radin in New York in late April and told him she was looking for Rogers because he had stolen the money and cocaine from her house. She accused Radin of knowing where Rogers was and of being involved in Rogers' disappearance. Radin became angry and hung up.

Greenberger-Radin Dinner Date

Radin returned to Los Angeles in early May 1983. Greenberger attempted to reach him by phone, but he refused to accept her calls. She was finally able to speak to Radin's personal assistant, Jonathan Lawson, on May 12. She arranged to meet with Radin the next night so that she and Radin could resolve their dispute over the Cotton Club deal at dinner. The same day Greenberger listed her Sherman Oaks home for sale, telling the real estate broker that she was moving to New York to work for Evans.

After Radin agreed to have dinner with Greenberger on May 13, he became concerned for his safety. Radin arranged to have a friend, Demond Wilson, follow him to the restaurant and provide security during

the drive to dinner and at dinner. Wilson was to be armed.

The Plan

On May 13 Mentzer obtained the use of a limousine and another car with the assistance of Marc Fogel. On that same day a meeting occurred at Mentzer's apartment in Los Angeles. Mentzer, Lowe, Marti, Carl John Plzak and Raja Korban were present. Korban and Plzak first met Mentzer, Marti and Lowe when they all worked at an agency that performed vehicle repossessions and private detective services. Plzak worked for Mentzer in April 1983 providing security and surveillance for Greenberger. At that time Greenberger and Mentzer told him that she had been "ripped off for cocaine and money" by Tally Rogers.

While driving to this meeting Marti told Korban that the "fat scumbag" who owed money to a woman was going to be killed. At the meeting Mentzer, in the presence of Lowe and Marti, described the plan to kidnap Radin. Both Plzak and Korban testified at trial under a grant of immunity. They testified that the plan called for Plzak and Korban to wait for Jonathan Lawson, Radin's personal assistant, to leave the hotel as Greenberger met with Radin that night. Lawson was expected to go to Greenberger's car which was parked near an apartment Greenberger rented in Beverly Hills. Plzak and Korban were to kidnap Lawson who was to be used as leverage to get information from Radin about the location of the money and cocaine. They were to communicate with the others by walkie-talkie about their progress with Lawson.

The plan further called for Lowe to chauffeur Greenberger and Radin in the limousine Mentzer had obtained the previous day. They were to drive from Radin's hotel to a restaurant in Beverly...