People v. Salazar

• Decision Date: 08 August 1980
• Docket Number: Cr. 20612
• Citation: 108 Cal.App.3d 992,167 Cal.Rptr. 38
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Louis SALAZAR, Defendant and Appellant.

Page 38

167 Cal.Rptr. 38

108 Cal.App.3d 992

The PEOPLE, Plaintiff and Respondent, v. Louis SALAZAR, Defendant and Appellant.

Cr. 20612.

Court of Appeal, First District, Division 1, California.

Aug. 8, 1980.

George L. Schraer, Berkeley, for defendant and appellant (Under appointment of the Court of Appeal).

George Deukmejian, Atty. Gen. of Cal., Robert H. Philibosian, Chief Asst. Atty. Gen. Criminal Division, Edward P. O'Brien, Asst. Atty. Gen., W. Eric Collins, Alvin J. Knudson, Deputy Attys. Gen., San Francisco, for plaintiff and respondent.

THE COURT: ^*

This is an appeal from a judgment sentencing defendant to state prison for the middle term of five years after a jury found him guilty of kidnapping (Pen. Code, §§ 207, 208). Defendant contends the trial court committed prejudicial error when it instructed on "flight"; that the act committed does not fall within statutory definition of kidnapping; and that the court failed to state adequate reasons for denying probation. Our analysis of the above contentions causes us to affirm the conviction but remand the matter for resentencing.

On June 3, 1979, between 2:30 and 3 a. m., Mrs. Mary Machado stopped her two-door 1971 Datsun in the parking lot of Marshall's Grocery Store in Aromas, California. Mrs. Machado, who lived three- quarters of a mile from the store, had just had a fight with her husband and had decided to take her five-month-old baby to her mother's home in Watsonville. The baby was beside her in the vehicle when she stopped in the parking lot to dry her tears. The car windows were rolled up, and the doors, although unlocked, were closed. It was dark, but there were street lights in the area bright enough to illuminate the inside.

As Mrs. Machado was sitting in her car, defendant opened the passenger side door and jumped in, landing on top of her baby. Mrs. Machado was startled and yelled at him to get off her baby. Defendant complied, and then asked her what she was doing. She replied that she was not doing anything and told him at least five or six times to get out of the car. Defendant refused and threatened her by indicating that he had something in his pocket. Defendant then forced Mrs. Machado to drive her car to Blohm Avenue. She did so, holding her baby in her arms. As she drove, she began screaming and honking her horn to attract attention. Defendant threatened her once more, telling her to stop screaming "or else."

When Mrs. Machado reached her own house, about three-quarters of a mile from Marshall's store, she attempted to swerve into her driveway. Defendant, however, grabbed the wheel and yanked the vehicle back. Mrs. Machado began screaming and honking her horn again. Defendant again told her to shut up "or else." Mrs. Machado drove another one-quarter mile and then while pretending to have car trouble, "popped" the clutch to make the engine die. Defendant accused her of stopping the automobile on purpose, but she replied that it always behaved this way. At some point while the car was stopped, defendant put his hands around Mrs. Machado's neck and choked her. She then observed him looking at her purse and told him to take it. Defendant said he did not want the purse and threw it into the back seat. Mrs. Machado jumped from the vehicle with her baby and ran to a neighbor's house. When she looked back, defendant was gone.

When Mrs. Machado returned to her automobile about an hour later with the police, the purse was missing from the back seat. It was returned later by a neighbor who found it in a field adjacent to where her car had been stopped. Footprints led from the car to the field.

Mrs. Machado was unable to recall anything about the shirt that defendant was wearing, but said he had been wearing dark pants and a black or dark-blue "beanie" cap. The police, pursuant to a search warrant, found a tan-striped shirt and a dark-blue knit cap in defendant's residence. Mrs. Machado identified the cap as the one defendant wore the night of the incident.

Bill Reynolds, who is employed by the Southern Pacific Railroad Police, was conducting a surveillance in the area of Carpenteria and Aromas Road in Aromas during the early morning hours of June 3, 1979. He was located one-half mile from Marshall's Grocery Store. Between 3 and 3:30 a. m., he heard an automobile horn honking and the sound of a woman screaming. Reynolds and his companion, Officer Cohen, drove up Carpenteria and down Blohm Road to investigate. Along the way they encountered two females walking down the road. These women pointed out an automobile and gave Reynolds the description of a Mexican male, five feet seven inches, short hair, wearing a striped shirt and blue jeans. Reynolds and Cohen then saw Mrs. Machado's automobile parked diagonally in the street with both doors open and the headlights on. They stopped to investigate, but found no one in the car. They found Mrs. Machado on the street a few seconds later.

Subsequently, Deputy Sheriff John P. Stevens of the San Marino Sheriff's Department met Mrs. Machado at the Aromas fire station and observed red marks on her neck.

Judy Ann Houck said that on June 3, about 3 a. m., she and her girlfriend walked to a park near Marshall's store and saw defendant in the park talking with Ms. Houck's brother. Ms. Houck and her girlfriend went over to the two men and talked to them. Afterwards, defendant walked down Carpenteria, away from Marshall's store. The two women walked down Blohm Avenue and saw a man walk over to an automobile parked in the parking lot of the store. Ms. Houck said that because it was dark, she was unable to positively identify the man as defendant. However, she had testified at the preliminary hearing that she had seen defendant go to an automobile in the parking lot. At trial, she stated that the man could have been defendant and that the man was wearing a blue-striped shirt. On cross-examination, however, she said the man was not wearing a striped shirt. When she talked with defendant the night of the incident, he was wearing a striped shirt, blue corduroys and a dark-blue or black "beanie." Ms. Houck and her girlfriend then watched the man get into the car. They saw the car drive away without its lights, then swerve toward a driveway and serve away, and they heard screaming and a honking horn.

Deputy Sheriff Curtis Hill said that prior to trial he took a tan-striped shirt, which had been seized at defendant's apartment pursuant to a search warrant, and showed it to Ms. Houck and her girlfriend. Ms. Houck positively identified the shirt as the one defendant wore the night in question. At trial, Ms. Houck said she did not recognize this shirt.

Defense Evidence

Gary Houck, Judy Ann Houck's brother, said that he met defendant about 12:30 a. m. on June 3, and that defendant was wearing a blue T-shirt all night long, and not a striped shirt.

Cecilia Hurtado lived with defendant. She saw him on June 2 at 8 p. m. and on June 3 at 3 a. m. when he came home to bed. At both times he was wearing a navy-blue shirt without stripes, navy-blue pants, and a navy-blue "beanie."

Defendant's mother saw him at midnight and 5 a. m.; he was weal 3846 navy-blue shirt at both times. The shirt seized at defendant's residence was not the shirt he was wearing, although he had been wearing the hat seized.

Defendant testified and admitted being across the street from Marshall's store about 1:30 or 2 a. m. He was wearing a blue, stripeless shirt. After talking with Gary Houck, his sister, and her girlfriend, defendant walked home, arriving about 2:30 or 3 a. m. He said he did not see a car in the parking lot of Marshall's store; he did not go into the parking lot; and he did not go into Mrs. Machado's vehicle.

Defendant's initial contention is that the trial court committed prejudicial error in instructing the jury on "flight." ¹ The People concede, under compulsion of the holding in People v. Anjell (1979) 100 Cal.App.3d 189, 160 Cal.Rptr. 669, that error was committed, but argue that it was harmless. We agree with the People. As in Anjell, the main issue below was not whether the elements of the crime were proved, but whether defendant was the perpetrator. Because identity was the contested issue, the giving of an instruction on flight was error. (See People v. Anjell, supra, 100 Cal.App.3d at pp. 199-200, 160 Cal.Rptr. 669.)

We are persuaded that the error was harmless, however. (See People v. Watson (1956) 46 Cal.2d 818, 835-836, 299 P.2d 243, cert. den., 355 U.S. 846, 78 S.Ct. 70, 2 L.Ed.2d 55.) The prosecutor did not argue that any of defendant's actions constituted flight showing guilt (see People v. Anjell, supra, 100 Cal.App.3d at p. 201, 160 Cal.Rptr. 669), and the evidence of defendant's guilt was overwhelming. Defendant admitted being in the area of the crime at the time it occurred, and the victim was certain of her identification of him as the kidnaper. The victim said her kidnaper was wearing dark pants and a dark-colored "beanie"; all witnesses, including those for the defense, agreed that defendant was so attired, and a dark beanie was found in his residence. A witness near the scene said the perpetrator wore a striped shirt, and a friend of defendant's testified on direct examination that the man she saw going into the victim's automobile was wearing a striped shirt. Although this same friend said at trial that she could not positively say this man was defendant, she was impeached by her preliminary hearing testimony wherein she said the man was defendant. Thus, even though several witnesses corroborated defendant's testimony that he was not wearing a striped shirt, there is overwhelming evidence which shows that he committed the offense.

The cases relied on by defendant do not compel a different conclusion in that this is not a close case which turns on the credibility of the two principal witnesses. In People v. St. Andrew (1980) 101 Cal.App.3d 450, 161 Cal.Rptr. 634, the case was a close one...