P. v. Ifeanyi























Filed 2/13/13
P. v. Ifeanyi CA2/5

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>NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115>.









IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA



SECOND
APPELLATE DISTRICT



DIVISION
FIVE






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THE PEOPLE, Plaintiff and Respondent, v. CHARLES IFEANYI, Defendant and Appellant.

B237688 (Los Angeles County Super. Ct. No. BA377848)

APPEAL from
a judgment of the Superior Court of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Los Angeles
County, Leslie A. Swain, Judge.
Affirmed.

William L.
Heyman, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Lance E. Winters, Assistant Attorney General, Stephanie A. Miyoshi and Daniel
C. Chang, Deputy Attorneys General, for Plaintiff and Respondent.



______________________________

Defendant
and appellant Charles Ifeanyi was convicted by jury of attempted kidnapping, in
violation of Penal Code sections 664 and 207.href="#_ftn1" name="_ftnref1" title="">^[1] The trial court sentenced defendant to the
low term of 18 months in state prison.

In his
timely appeal from the judgment, defendant makes the following arguments: (1)
there was insufficient evidence to support the conviction, which
violates defendant’s constitutional right to due process under the Fourteenth
Amendment; and (2) the trial court
committed prejudicial error and violated his href="http://www.mcmillanlaw.com/">right to due process and a fair trial by
not instructing on lesser included offenses.
Finding no merit in either contention, we affirm the judgment.



FACTS



Defendant
had four encounters with 16-year-old Danielle D., with the final incident
serving as the basis for the charge of attempted
kidnapping. In June 2010, as
Danielle was walking from school to her brother’s house, she noticed defendant
driving a Yukon slowly by her side, staring at her. Defendant offered her a ride, urging her to
get into his car several times. Danielle
told defendant to leave her alone and walked quickly to her brother’s house.

Later that
day, Danielle walked from her brother’s home to a nearby Chinese
restaurant. When she left the
restaurant, the Yukon was parked nearby, defendant approached her, and said, “I
have some money.” Danielle refused
defendant’s requests to get into the Yukon.
When Danielle told a passerby what was happening, defendant returned to
his car and drove away.

In August
2010, Danielle was at a bus stop when defendant drove up and told her he would
give her a ride. Danielle was talking on
her cell phone, ignoring defendant.
Defendant exited his car and offered Danielle a ride and money. Danielle intentionally spoke loudly to a
friend on her cell phone, so that defendant could hear, telling her friend the
license plate number of the Yukon.
Defendant left in the car, and Danielle called 911. An officer determined that defendant was the
registered owner of the Yukon and wrote him a letter, asking defendant to
contact him. A person identifying
himself as defendant called the officer and became upset, yelling at the officer,
and hanging up on him.

In October
2010, Danielle was walking through an alleyway to her brother’s house, when
defendant blocked her path with the Yukon.
Standing close to Danielle, defendant told her to “come with me” three
times, using a demanding tone of voice.
Danielle refused and attempted to walk away. Defendant grabbed her arm, jerking her
forward. Danielle pulled her wrist away
from defendant and moved toward the rear of the Yukon, scared because defendant
had touched her. Danielle ran to her
brother’s house and called 911. She
positively identified defendant in a six-person photographic lineup.

Other than
brief impeachment evidence regarding
Danielle’s statement to a police officer in August 2010, no substantive defense
was presented.



DISCUSSION



I



Defendant
argues the evidence is insufficient to support his conviction of attempted
kidnapping in three respects. First,
there was no substantial evidence that defendant had the intent to move
Danielle a substantial distance against her will. Second, he did not commit any act to move her
a substantial distance against her will.
Third, Danielle’s testimony was inherently improbable and therefore
could not constitute substantial evidence.
According to defendant, the evidence shows he was attracted to Danielle
and wanted to spend money on her, but he had no intention of committing an
abduction.



Standard of Review



We review the sufficiency of the evidence in the light
most favorable to the judgment for substantial evidence—evidence that is
reasonable, credible, and of solid value.
(People v. Maury (2003)
30 Cal.4th 342, 396 (Maury); People
v. Hillhouse (2002) 27
Cal.4th 469, 496.) We are required to
accept logical inferences that the jury might have drawn from the href="http://www.fearnotlaw.com/">circumstantial evidence. (People
v. Combs (2004) 34 Cal.4th 821, 849; Maury, supra, at p. 396;
People v. Rodriguez (1999) 20
Cal.4th 1, 11.)



Elements of Attempted
Kidnapping



Section
207, subdivision (a), provides as follows: “(a)
Every person who forcibly, or by any other means of instilling fear,
steals or takes, or holds, detains, or arrests any person in this state, and
carries the person into another country, state, or county, or into another part
of the same county, is guilty of kidnapping.”
Section 664 provides in pertinent part that “[e]very person who attempts
to commit any crime, but fails, or is prevented or intercepted in its
perpetration, shall be punished” as prescribed by law.

“Mere
preparation to commit a crime does not constitute an attempt to commit it. name="sp_227_247">name="citeas((Cite_as:_165_Cal.App.3d_41,_*49,">(People v. Berger
(1955) 131 Cal.App.2d 127, 130.) There
must be some appreciable fragment of the crime committed, and it must be in
such progress that it will be consummated unless interrupted by extraneous
circumstances. (People v. Staples
(1970) 6 Cal.App.3d 61, 65-66; People v. Buffum [(1953)] 40 Cal.2d 709.)”
(People v. Cole (1985) 165
Cal.App.3d 41, 49 (Cole).)

For the
crime of attempted name="SR;3512">kidnapping, the distance “moved is immaterial -- asportation
simply is not an element of the offense. People v. Fields (1976) 56 Cal.App.3d
954 involved an attempt to force a young girl on the
street into a car, which attempt was abandoned by the
defendant when she screamed. The court
therein affirmed a conviction of attempted name="SR;3575">kidnapping even though the victim was never physically
moved.” (Cole, supra, 165
Cal.App.3d at p. 50.)



Analysis



Applying
the appropriate standard of review, there is no merit to defendant’s challenges
to the sufficiency of the evidence. The
claim that there is no substantial evidence defendant had the intent to
forcibly move Danielle is contrary to the record. Over a period of months, defendant attempted
to entice Danielle into his car. Despite
her persistent refusals, he continued to approach her. Finally, when Danielle was cornered in the
alleyway and refused, once again, to go with defendant, he grabbed her by the
arm, demonstrating an intent to forcibly move her to another part of the
county.

Equally
unavailing is the claim that defendant did not commit an act directed at
forcibly moving Danielle. To the
contrary, trapping Danielle in a small area with his car and grabbing her arm
while demanding that she go with him is “a direct, unequivocal act toward
kidnapping her.” (Cole, supra, 165
Cal.App.3d at p. 50.) It was Danielle’s
pluck, not defendant’s lack of intent, that kept this from turning into a
completed act of kidnapping.

Defendant’s
claim that Danielle’s testimony was inherently improbable is no more than a
“dispute [over] the persuasive value of the evidence. . . .” (People
v. Letner (2010) 50 Cal.4th 99, 161 (Letner).) “In our limited role on appeal, ‘[c]onflicts
and even testimony which is subject to justifiable suspicion do not justify the
reversal name="citeas((Cite_as:_50_Cal.4th_99,_*162,_23">of a judgment, for it is
the exclusive province of the trial judge or jury to determine the credibility
of a witness and the truth or falsity of the facts upon which a determination
depends. [Citation.] We resolve neither credibility issues nor
evidentiary conflicts; we look for substantial evidence.’ ([Maury,
supra,] (2003) 30 Cal.4th [at p.] 403.)” (Letner,
supra, at pp. 161-162.) Accordingly, “we reject defendant’s attempts
to reargue the persuasiveness of the evidence and conclude that the evidence
was sufficient . . . .” (>Maury, supra, at p. 396.)

There is
nothing inherently improbable about Danielle’s testimony. As is common with most witnesses, her
testimony reflects occasional inconsistencies.
But viewed as a whole, and taking into account Danielle’s age, we find
nothing unusual in her testimony that would warrant a conclusion that her
testimony was unconstitutionally unreliable.




II



Defendant
next argues the trial court erred in failing to instruct the jury on the lesser
included offenses of battery and false imprisonment. Defendant contends the trial court had a sua
sponte duty to instruct the jury on the lesser offenses and that the doctrine
of invited error does not bar the claim.



Duty to Instruct on
Lesser Included Offenses



“Like most
jurisdictions, California recognizes that an offense expressly alleged in an
accusatory pleading may necessarily include one or more lesser offenses. The definition of a lesser necessarily
included offense is technical and relatively clear. Under California law, a lesser offense is
necessarily included in a greater offense if either the statutory elements of
the greater offense, or the facts actually alleged in the accusatory pleading,
include all the elements of the lesser offense, such that the greater cannot be
committed without also committing the lesser. name="SDU_118"> (People v. Lohbauer (1981) 29 Cal.3d
364, 368-369 (Lohbauer); People v. Marshall (1957) 48 Cal.2d 394,
405-407 (Marshall).)” name=FN8>(People
v. Birk (1998) 19 Cal.4th 108, 117-118, fn. omitted.)

A name="SR;21383">trial court has a sua sponte duty to
instruct the jury on an uncharged offense included in the charged crime if
supported by substantial evidence. (People
v. Waidla (2000) 22 Cal.4th 690, 733; People
v. Breverman (1998) 19 Cal.4th 142, 154; People v. Memro (1995) 11 Cal.4th 786, 871.) “Such instructions are
required only when there is substantial evidence
that, if the defendant is guilty at all, he is guilty of the lesser
offense, but not the greater. [Citations.]”
(People v. Wyatt (2012)
55 Cal.4th 694, 704.)

“The error
in failing sua sponte to instruct, or to instruct fully, on a lesser included
offense is not a fundamental structural defect in the mechanism of the criminal
proceeding ([People] >v. Cahill [(1993)] 5 Cal.4th 478, 502) which cannot or should not be
evaluated for prejudice by reference to ‘the entire cause, including the
evidence’ (Cal. Const., art. VI, § 13).
Instead, like the erroneous introduction of an involuntary confession,
or the instructional omission of an element of a charged offense or sentencing
enhancement, it is a mere trial error, one committed in the presentation of the
case to the jury. By the same token, the
probable adverse effect of an erroneous failure to provide a lesser offense
option in a particular case can readily be assessed by an individualized,
concrete examination of the record in that case. Under such circumstances, as
in Cahill, the error must therefore be evaluated under the generally
applicable California test for harmless error, that set forth in [>People v.] Watson [(1956) 46 Cal.2d 818].name=FN24>” name=F024241998181893>(People v.
Breverman, supra, 19 Cal.4th at
p. 176, fn. omitted.)



Analysis



The
Attorney General argues defendant invited any error when defense counsel, after
consultation with defendant, affirmatively asserted that instructions on lesser
included offenses should not be given.
(See People v. Prince (2007)
40 Cal.4th 1179, 1265; People v. Horning (2004) 34 Cal.4th 871,
905.) We need not, however, decide
whether counsel’s determination to forego instructions on anything other than
the charged offense rose to the level of invited error, because the record
contains no substantial evidence of a lesser included offense, and any error
was necessarily harmless.

Defendant asserts that battery and
attempted false imprisonment are lesser included offenses of attempted
kidnapping. The claim as to battery does
not require discussion. Battery (§ 242),
which requires the unlawful touching of another, is not an included offense of
attempted kidnapping. A kidnapping may
be committed without the use of force—section 207 applies to offenses committed
by force “or by any other means of instilling fear.” Thus, not every kidnapping, or attempted
kidnapping, includes a battery and the trial court had no obligation to
instruct on that offense.

It has been
held that false imprisonment (“the unlawful violation of the personal liberty
of another” as defined in § 236) is a lesser included offense of kidnapping in
violation of section 207. (>People v. Ratcliff (1981) 124 Cal.App.3d
808, 819-820, citing People v. Apo
(1972) 25 Cal.App.3d 790, 796.) Assuming
attempted false imprisonment is a lesser included offense of attempted
kidnapping, the record contains no substantial evidence that defendant merely
attempted to violate the personal liberty of Danielle and the trial court had
no obligation to instruct on the offense.

“[A] name="SR;11265">lesser included offense name="SR;11268">instruction on false name="SR;11271">imprisonment is not required where
the evidence establishes that defendant was either guilty of kidnapping
or was not guilty at all. (See People v. Kelly (1990) 51 Cal.3d
931, 959; People v. Leach (1985) 41 Cal.3d 92.)” (People
v. Ordonez (1991) 226 Cal.App.3d 1207, 1233.) Here, on each of the four occasions defendant
contacted Danielle, he attempted to entice her to go with him in the
Yukon. There is no evidence defendant
intended to merely violate her personal liberty—in each instance, defendant
sought to take Danielle with him.
Certainly defendant’s conduct in grabbing her arm and pulling her during
his fourth contact with Danielle shows an intent to carry her to another
location, which constitutes an attempted kidnapping. Given this record, the trial court had no
obligation to instruct on attempted false imprisonment as a lesser included
offenses.

Assuming
the record contains substantial evidence of an attempted false imprisonment,
any failure to instruct on that offense was nonprejudicial. (People
v. Breverman, supra, 19 Cal.4th at p. 178.) Defendant engaged in a persistent pattern of
attempting to transport Danielle to another location, conduct which shows an
intent to kidnap rather than an intent to merely invade her personal
liberty. We hold defendant has failed to
show that had the jury been given the option of returning a guilty verdict on
attempted false imprisonment rather than attempted kidnapping, it would have
convicted of the lesser rather than the charged offense. (Cal. Const., art. VI, § 13.)



DISPOSITION



The
judgment is affirmed.





KRIEGLER,
J.





We concur:





TURNER,
P. J.





MOSK,
J.