P. v. Haycraft
Filed 1/18/13 P.
v. Haycraft CA2/6
OFFICIAL REPORTS
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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 SIX
THE PEOPLE,
Plaintiff and Respondent,
v.
SHAMAN
HAYCRAFT,
Defendant and Appellant.
2d Crim. No. B238648
(Super. Ct. No. BA379873)
(Los Angeles County)
Shaman
Haycraft appeals for the judgment entered after a jury convicted him of
probation subject to the condition that appellant serve 365 days in a
residential dual diagnosis program. We
affirm.
Facts and Procedural History
On
the morning of January
9, 2011, appellant jumped out from behind a
wall and grabbed Sylvia Rabadi's arms.
Rabadi struggled about 10 seconds before appellant let her go. Appellant grabbed Rabadi by the wrist and
said "Come on," dragging her
towards a vacant parking lot. Rabadi
broke free and flagged down a police car as appellant chased her. Appellant tried to flee after the police car
made a U-turn and stopped.
Los
Angeles Police Officer Eduardo Mercado arrested appellant and found a sleeping
bag, food, and food wrappers behind the parking lot wall. Appellant said, "I wasn't trying to hurt
anybody, just trying to take her to a better place." At trial, appellant stated he had just been
mugged by "gangsters" and grabbed Rabadi to take her to a safe
place.
Asportation
Appellant
argues that the prosecution failed to prove asportation, i.e., substantial
movement of the victim. Simple
kidnapping requires that the victim be moved by force or fear, that the
movement be without the victim's consent, and asportation, i.e., that the
victim be moved a substantial distance.
v. Martinez (1999) 20 Cal.4th 225, 237.)
For attempted kidnapping, actual movement is not an element of the
offense. (People v. Cole (1985)
165 Cal.App.3d 41, 50.)
Appellant
held Rabadi by the arms and told her to
"Be quiet" as she struggled to break free. Grabbing her by the wrist, appellant dragged
her five feet towards the secluded parking lot where he had a sleeping
bag.
Appellant
argues that five feet is a trivial distance, but that is not the standard for
Cal.App.3d at p. 50.) In People v.
Fields (1976) 56 Cal.App.3d 954, defendant attempted to force a young girl
on the street into his car but abandoned the attempt when the victim threatened
to scream. The Court of Appeal affirmed
the conviction for attempted kidnapping.
(Id., at
p. 957.) "[T]o require the
prosecution to show more than a forcible attempt to move the victim into a
motor vehicle in order to prove intent to move the victim a substantial
distance, would be to read the crime of attempted kidnapping out of the
law. In the absence of any evidence to
suggest that defendant contemplated no more than a trivial movement of his
victim, the requisite intent to kidnap may be inferred." (Ibid.)
The
same analysis applies here. The jury
reasonably inferred that appellant intended to move Rabadi a substantial
distance by grabbing and dragging her towards the parking lot. The fact that Rabadi broke free and flagged
down a police car does not exculpate appellant.
Because the conviction is for attempted kidnapping, it does not matter
how far Rabadi was forcibly moved. (Ibid;
People v. Cole, supra, 165 Cal.App.3d at p. 50.)
Prosecutorial
Misconduct
Appellant
contends that the prosecution engaged in misconduct
after defense counsel told the jury that appellant had "an episode"
and "was looking for help." In
rebuttal, the prosecutor argued "this story that [appellant] gave about,
oh, you
know, . . . I
think he said some gangsters had mugged [him].
That was the story, and I asked him, well, you didn't tell this to the
police, did you? And he says no, no, no,
of course I did. I told the police. [¶] Here's what's
interesting. Officer Mercado, the
arresting officer, the officer who was there at the scene, took the stand and
was cross-examined by the defense attorney.
Did the defense attorney ask one question about this alleged
mugging?"
Appellant
objected on the ground that it was "shifting [the] burden." The trial court admonished the jury: "The burden remains with the People,
Ladies and Gentlemen, to prove the defendant guilty beyond a reasonable
doubt."
There
was no misconduct. A prosecutor may
argue that a defendant has not brought forth evidence to corroborate an
essential part of a defense theory. (People
v. Cornwell (2005) 37 Cal.4th 50, 90; People v. Varona (1983) 143
Cal.App.3d 566, 570.) Appellant
testified that he had just been mugged but did not mention it to Rabadi or the
arresting officer.
Defense
counsel told the jury it was "an episode." The prosecutor, in rebuttal, argued: "[Defense counsel] didn't ask the officer
one question about the defendant's alleged story about this mugging because
[defense counsel] didn't know about it, because [appellant] made it up on the
stand. [¶] If the defendant
had really told the police about this on that day, you know for a fact [defense
counsel] would have asked that officer:
isn't it true?"
It
is not misconduct to comment on a defendant's failure to present corroborating
evidence providing the comments are not aimed at defendant's failure to
testify. (People v. Miller (1990)
50 Cal.3d 954, 996; People v. Guzman (2000) 80 Cal.App.4th 1282,
1288-1289.) Appellant's citations
involve cases in which the prosecutor commented on or asked the jury to
consider what a non-testifying witness would have said. (People v. Hall (2000) 82 Cal.App.4th
813, 817; People v. Gaines (2997) 54 Cal.App.4th 821, 825.) "When a defendant voluntarily testifies,
the district attorney may fully amplify his testimony by inquiring into the
facts and circumstances surrounding his assertions , . . . [Citation.] " (People v. Cooper
(1991) 53 Cal.3d 771, 822.)
Lesser Offense: False
Imprisonment
Appellant contends that the trial court erred
in not instructing on attempted false imprisonment as a lesser included
offense (see People v. Shadden (2001)
93 Cal.App.4th 164, 171) but such an instruction is not required where there is
no evidence that the offense is less than that charged. (People v. Mendoza (2000) 24 Cal.4th
130, 174; People v. Birks (1998) 19 Cal.4th 108, 118.) A sua sponte instruction on false
imprisonment "is not required where the evidence establishes that
defendant was either guilty of kidnapping [or attempted kidnapping] or was not
guilty at all. [Citations.]" (People
v. Ordonez (1991) 226 Cal.App.3d 1207, 1233.)
Appellant's conduct went beyond false
imprisonment when he grabbed and dragged Rabadi towards the secluded parking
lot. An instruction on attempted false
imprisonment would have undermined the defense theory that appellant had just
been mugged and wanted Rabadi to get him to safety. We have reviewed the entire record and hold
that the failure to instruct on attempted false imprisonment was harmless under
any standard of review. (See e.g, Neder
v. United States (1999) 527 U.S. 1, 17-18 [144 L.Ed.2d 35, 52-53
[overwhelming evidence rendered alleged instructional error harmless beyond a
reasonable doubt]; People v. Breverman (1995) 19 Cal.4th 142, 177-178 [harmless
error].) But for the alleged
likelihood that appellant would have received a more favorable result. (Id., at p. 178.)
The
judgment is affirmed.
NOT TO BE PUBLISHED.
YEGAN,
J.
We concur:
GILBERT, P.J.
PERREN, J.
>
William C. Ryan, Judge
Superior Court County of Los
Angeles
______________________________
Jerry Smilowitz, under appointment by the
Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr. and Kamala D. Harris,
Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E.
Winters, Senior Assistant Attorney General, Paul M. Roadarmel, Jr., Supervising
Deputy Attorney General, Kim Aarons, Deputy Attorney General, for Plaintiff and
Respondent.
name="_ftn1" title="">[1] All statutory references are
to the Penal Code.
name="_ftn2" title="">[2] The jury was instructed: "Substantial distance means more than a
slight or trivial distance. In deciding
whether the distance was substantial, you must consider all the circumstances
relating to the movement. Thus, in
addition to considering the actual distance moved, you may also consider other
factors such as whether the movement increased the risk of physical or
psychological harm, increased the danger of a foreseeable escape attempt, gave
the attacker a greater opportunity to commit additional crimes, or decreased
the likelihood of detection. "
(CALCRIM 1215.)
