People v. Olivencia
Decision Date | 05 October 1988 |
Docket Number | No. H002714,H002714 |
Citation | 204 Cal.App.3d 1391,251 Cal.Rptr. 880 |
Parties | The PEOPLE, Plaintiff and Respondent, v. Benny Bautista OLIVENCIA and Paul Bechol Olivencia, Defendants and Appellants. |
Court | California Court of Appeals |
John K. Van de Kamp, Atty. Gen., Steve White, Chief Asst. Atty. Gen., John H. Sugiyama, Asst. Atty. Gen., David Salmon, Supervising Deputy Atty. Gen., Joyce Hee, Deputy Atty. Gen., San Francisco, for plaintiff and respondent.
Benny Olivencia and his brother, Paul Olivencia, were tried together before a jury and were each convicted of one count of false imprisonment, a felony (Pen.Code, §§ 236, 237) 1 with the use of a knife ( § 12022, subd. (b)). Both were acquitted of first degree burglary ( §§ 459, 460). Benny was sentenced to three years in state prison and Paul was sentenced to two years. Appellants contend the trial court erred in failing to instruct the jury that felony false imprisonment is a specific intent crime. Paul contends the trial court failed to hold a requested Marsden hearing, and improperly admitted a hearsay statement of Benny as the statement of a coconspirator (Evid. Code, § 1223). Benny contends the prosecutor improperly questioned him concerning his prior arrests, and the court erroneously allowed the prosecution to impeach him with a prior felony conviction for burglary.
Benny and Paul were "burned" in a drug transaction after Paul arranged to purchase cocaine from Mark Frates and George Walker at Frates's San Jose apartment. Paul gave Walker $380 for a package which allegedly contained that drug. Paul showed Benny what he had purchased, while Walker drove away. Benny and Paul immediately discovered they had been given something other than cocaine, 2 and chased Walker in their car but were unable to catch him.
About 7 or 8 o'clock that evening, Frates's 16-year-old girlfriend, Lori Ceballos, was home with their new baby. Lori heard a commotion outside. Shortly afterwards, Benny opened the door and walked into the apartment followed by Paul. Benny asked Lori where Frates was. Lori told the intruders to get out, but they refused. Benny said he was going to find Frates and kill him because Frates owed him money. Benny then unplugged the telephone and told Lori not to leave.
After about ten minutes Benny left the apartment. As he did so, he told Paul to stay with Lori.
Between 8 and 9 o'clock Benny went to the apartment George Walker shared with his girlfriend, Rachael Rock. Frates and Walker were in the apartment when Benny arrived. Rachael answered the door. Benny asked if Rachael knew who the car downstairs belonged to, referring to George Walker's car. Rachael said she didn't know. Benny said Frates and Walker had sold him aspirin and he wanted his money back and that "they" had Lori and the baby in "possession" and that "drastic things would happen" if the money wasn't returned. Benny then went downstairs and removed everything from the glove compartment of Walker's car.
Benny returned to Lori's apartment about one-half hour after he had left. This time, he was armed with a knife. Benny waived the knife around, stuck it into a coffee table, and told Lori he was going to stay there and wait for Frates "and if he got tired of waiting he was going to make [her] watch him cut up [her] baby." He also used his fist to punch a hole in a glass terrarium. After about five minutes, Benny left, saying he would be back. Lori testified Paul was not armed with a knife while he was at the apartment, although he did use a steak knife to cut tape to repair the terrarium Benny had broken.
Later that evening Walker went to the apartment where Benny and Paul were living to return the $120 he had received for his part in the bogus drug deal. He left the money at the house, and, as he was leaving, Benny arrived. He told Benny he had returned his share of the money and Benny said "Well, go talk to Paul, he's over there holding Lori and the baby."
Walker then flagged down San Jose police Officer Richard Torres and asked the officer to go to Lori's apartment to investigate the false imprisonment of Lori and her baby.
Officer Torres went to Lori's apartment and knocked six or seven times while announcing he was a police officer. Eventually, after Torres threatened to kick the door down, Paul let him in.
Lori was sitting on the couch holding her baby. Torres saw a steak knife with a bandana wrapped around its handle on the floor next to a reclining chair; the chair, which was made of leather or vinyl, had a fresh imprint on the fabric as if someone had just gotten up from it. Lori told him Paul had been carrying the knife around the apartment.
Because Lori's testimony at trial tended to indicate Paul was not an active participant in the false imprisonment, but instead was attempting to calm Benny down, the prosecution introduced a tape recording of a previous phone interview with Lori to impeach her testimony at trial. In that interview, Lori stated that "they [Benny and Paul] just barged in ... [a]nd they got a knife out of my kitchen drawer, locked my doors, unplugged my phone and said they were going to wait here until my boyfriend arrived with the money and if they got bored while they were waiting they were going to make me watch them kill my baby." When asked what Paul did during the crime, Lori responded: In the taped interview, she said that Paul didn't want Benny to hurt her or her baby, but he was nevertheless keeping her there and she was afraid to leave the apartment even when she was left alone with Paul.
Paul called Lori as his only defense witness. She testified that Mark and George were nearby during the phone interview and that they persuaded her to say "less favorable" things about Paul because they were afraid he would be released and "get them." She reiterated that Paul tried to calm Benny down, that he only used the knife to fix her terrarium, and that she asked him to stay with her to protect her from Benny. She indicated she was never afraid of Paul and he never prevented her from leaving.
Benny testified in his own behalf. He stated he was on prescribed medication for a serious mental illness and that he had run out of the medication a couple of days before this incident. He testified he didn't remember any details of the day the false imprisonment occurred.
Two psychiatrists were called in Benny's behalf. Both believed Benny had suffered from schizophrenia for some years.
Defendants contend the trial court had a duty to instruct that felony false imprisonment is a specific intent crime. Benny also contends the court had a duty to instruct the jury that his mental illness could be considered in determining whether he formed the necessary specific intent for felony false imprisonment. We conclude false imprisonment, whether misdemeanor or felony, is a general intent crime, and consequently find no instructional error.
In People v. Hood (1969) 1 Cal.3d 444, 82 Cal.Rptr. 618, 462 P.2d 370, Chief Justice Traynor stated what has become the accepted test for distinguishing between specific and general intent crimes: (Id. at pp. 456-457, 82 Cal.Rptr. 618, 462 P.2d 370; accord: People v. McDaniel (1979) 24 Cal.3d 661, 669, 156 Cal.Rptr. 865, 597 P.2d 124; People v. Daniels (1975) 14 Cal.3d 857, 860, 122 Cal.Rptr. 872, 537 P.2d 1232; People v. Simpson (1987) 192 Cal.App.3d 1360, 1366, 237 Cal.Rptr. 910.) False imprisonment is defined as "the unlawful violation of the personal liberty of another." ( § 236.) "If such false imprisonment [is] effected by violence, menace, fraud, or deceit ..." the crime is a felony. ( § 237.)
In People v. Swanson (1983) 142 Cal.App.3d 104, 109, 190 Cal.Rptr. 768, the court held that false imprisonment is a general intent crime. The Swanson court did not specify whether the conviction in that case was a felony or a misdemeanor, although the circumstances of the offense and punishment indicate it was a felony. (Id. at p. 106, 190 Cal.Rptr. 768.) The court reasoned that (Id. at p. 109, 190 Cal.Rptr. 768.)
Defendants contend that only misdemeanor false imprisonment is a general intent crime under the Hood test. They argue felony false imprisonment is a specific intent crime since it requires a factor not present in misdemeanor false imprisonment: namely, that the crime "be effected by violence, menace, fraud, or deceit." ( § 237.)
As we understand defendants' argument, it is that in felony false imprisonment the perpetrator must engage in violence, menace, fraud or deceit with the specific intent to cause the unlawful violation of the personal liberty of another....
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