People v. Ordonez

• Decision Date: 15 January 1991
• Docket Number: No. B034210,B034210
• Parties: The PEOPLE, Plaintiff and Respondent, v. Marco Tulio ORDONEZ, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 382

277 Cal.Rptr. 382

226 Cal.App.3d 1207

The PEOPLE, Plaintiff and Respondent, v. Marco Tulio ORDONEZ, Defendant and Appellant.

No. B034210.

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

Jan. 15, 1991.

Review Denied March 28, 1991.

[226 Cal.App.3d 1216] Jeffrey J. Stuetz, San Diego, under appointment by the Court of Appeal, for defendant and appellant.

John K. Van de Kamp, Atty. Gen., Richard B. Iglehart, Chief Asst. Atty. Gen., Edward T. Fogel, Jr., Senior Asst. Atty. Gen., William T. Harter, Supervising Deputy Atty. Gen., and Andrew D. Amerson, Deputy Atty. Gen., for plaintiff and respondent.

EPSTEIN, Associate Justice.

In this case, we decide that the crime of kidnapping for ransom, extortion or reward (Pen.Code, § 209, subd. (a)) involves a substantial risk of death to the victim and therefore supports a conviction of second degree murder on a felony-murder theory. ¹ We also resolve numerous

other issues concerning defendant's conviction of second degree murder and aggravated kidnapping. Defendant raises issues of instructional error regarding the elements of kidnapping, unanimity of the verdict, and the lesser included offense of felony false imprisonment. He also contends that the evidence was insufficient to support the conviction of aggravated kidnapping. He argues that the imposition of life imprisonment without possibility of parole for aggravated kidnapping was improper as a matter of law. He contends that we must remand for resentencing because the court erroneously believed the only sentence permitted was life imprisonment without the possibility of parole. Finally, he contends that the court erred in ordering concurrent sentences. We conclude that only the last point has merit. We therefore modify the abstract of judgment with respect to concurrent sentences, and affirm the judgment in all other respects.

FACTUAL SUMMARY

In reviewing the record on appeal, we must regard all factual disputes in the evidence 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, 318-319, 99 S.Ct. 2781, 2788-89, 61 L.Ed.2d 560.) We present a general summary at this point, reserving a fuller discussion of particular facts for our treatment of the issues to which they pertain.

Defendant, Marco Ordonez, was employed as a mechanic in Florida by Dogoberto Rodriguez [referred to as "Dogo" in the record, and hereafter in this opinion] in the summer of 1986. Defendant had known Dogo for three to eight years. In July, 1986, Dogo sent defendant to California on a business trip regarding motors. Dogo, who had a cocaine distribution business in Los Angeles, told defendant to familiarize himself with the area. After defendant returned to Florida, Dogo again sent him to southern California, telling him to "keep an eye" on Mario Gomez ("Gomez"), who was apparently a member of Dogo's cocaine distribution network.

Following Dogo's orders, defendant rode a bicycle in the neighborhood where he knew Gomez' house was located. Defendant approached a group in Gomez' front yard and asked about a black Volkswagen which was in the driveway. Gomez's son Carlos Gomez befriended defendant and they often socialized together thereafter.

Dogo called defendant that fall and told him that Gomez had cocaine which belonged to Dogo. He directed defendant to either recover the cocaine or $150,000, the value of the missing drugs. Either Dogo or defendant hired Manuel Salais and "Cholin" ² to assist in this task. Two attempts to obtain the drugs or money from Gomez were thwarted when defendant and his cohorts encountered too many family members present at the Gomez home. Defendant then spent three to four days in a hotel with Salais waiting for another opportunity to retrieve the drugs or money from Gomez.

On October 15, 1986, defendant, Salais, and Cholin met at an automobile detail shop, and traveled from there to the home of Gomez and Mrs. Gomez, purportedly to finalize the sale of the Volkswagen automobile to defendant. They drove there in a Ford Granada that defendant had purchased for Dogo, using a false name. Gomez let the three men into the house. Defendant was the last to enter. Mrs. Gomez was in the laundry area when Salais entered the room. He put a gun to her head while Cholin bound her hands and feet with duct tape. She was scared. Mrs. Gomez was laid on the floor of the family room Defendant and Salais returned Gomez to the family room, his hands and mouth taped. Defendant was carrying a bag containing cocaine found in the crawl space below the bedroom closet, together with money, jewelry and a black book removed from a safe which Gomez had opened for them. Defendant directed one of his companions to get the car and open the trunk. While on the floor next to his wife, Gomez asked "What will I do?" and mentioned the name "Dago." ³ Mrs. Gomez thought "Dago" was a friend of her husband. Three days before, Gomez had told her that he was holding money for "Dago."

next to her granddaughter's crib. Defendant did not look surprised when he saw one of his companions with a gun. Mrs. Gomez saw defendant and Salais lead her husband past her into a back bedroom which he used as an office. She was unable to see or hear what occurred in that room. During this time, however, she heard her husband say that he did not have either the drugs or the money being demanded of him. Cholin remained in the room with Mrs. Gomez, watching out the window.

Defendant directed one of the men to put Gomez in the trunk of the Ford in which defendant, Salais and Cholin had driven to the Gomez residence. Mrs. Gomez asked defendant not to put her husband in the car. Defendant told her that they would harm the family if she told the police. Defendant also told Mrs. Gomez that her husband might not be back. When she asked him if he was a policeman, he replied that he was from the Mafia. Defendant issued orders to Salais and Cholin while they were in the house.

Salais and Cholin put Gomez into the trunk of the Ford. Defendant made no effort to deter them from doing so. Defendant, Salais, and Cholin then drove to the automobile detail shop where the three had met before going to Gomez' home. They arrived at the shop between 11:00 in the morning and noon. Gomez was given water, and then taken to a house owned by a friend of Dogo. There Gomez was taken out of the car and given more water. Salais kept his gun on Gomez while Dogo talked to him about a shipment of cocaine. Defendant testified he was standing 10 to 12 feet away, smoking some of the crack cocaine taken from the crawl space beneath Gomez' home, and that he heard only part of the conversation between the two men.

Defendant also testified that, at Dogo's direction, he brought some writing paper; that Gomez wrote something on the paper which Dogo took and folded; and that defendant did not look at the paper at any time. Dogo instructed defendant to deliver the note to Mrs. Gomez.

In the meantime, Mrs. Gomez had freed herself and called her son Carlos. She believed that the money taken from the safe belonged to Dogo. Later that day, Mrs. Gomez received a telephone call from defendant. He directed her to go to the public telephones at the intersection of Orr and Day, and Telegraph ["the corner"].

Dogo drove defendant and Cholin to the detail shop where they picked up Cholin's car. They then drove to the corner to deliver the note. Mrs. Gomez went to the corner, but was unable to find a note. Defendant met her and handed her a folded note. He said that she should not worry. Mrs. Gomez returned home and read the note, which was in Spanish in her husband's handwriting. It instructed her to tell their children that he had gone on a trip, not to worry, that he was all right; to go to the bank and take the money and everything they had and give it to defendant and the others. By that time, the banks were closed, so Mrs. Gomez went the next day. She closed out two bank accounts and emptied a safe deposit box, accumulating over $51,000. Neither defendant nor Dogo ever contacted Mrs. Gomez about her husband again.

After delivering the note to Mrs. Gomez, defendant and Cholin did not return to the house where Gomez was being held. Instead, they drove around for a time, drank some beers, then checked into a hotel.

Dogo was staying at the same hotel. They remained at the hotel until 8 or 9 a.m. the next morning, October 16, 1986. Defendant and Cholin then went to the detail shop and met Salais and Dogo. Salais gave defendant the keys to the Ford and said: "Here, man. Mario is dead. He is in the trunk of your car."

Defendant fled to Florida, driving a station wagon belonging to Dogo. He delivered that vehicle to an auto shop owned by Dogo in Florida.

Gomez' body was found in the trunk of the Ford on November 4, 1986. His knees and wrists were bound with cord. The cause of death was asphyxia [lack of oxygen] consistent with suffocation from confinement in a small place. There were no signs of strangulation. Due to the extreme decomposition of the body, the forensic pathologist was unable to determine when or where Gomez died. She concluded that it was possible that he died on October 15 or 16. Salais' fingerprint was on a beer bottle found in the car with Gomez' body. Defendant's fingerprints were on the note delivered to Mrs. Gomez.

Defendant stayed with Donna Henshaw until November 18, 1986, and then traveled to Ecuador where his family was located. Henshaw testified that defendant told her that he had hired Salais and Cholin to help him get the money or drugs from Gomez. Defendant also admitted to Henshaw that he was in charge and gave orders to the others inside the house. Defendant did not make any admissions about orders to kill Gomez or how he died. While in South America, defendant spent three days with Dogo in Columbia. He admitted that he made the trip to Columbia...