PEOPLE v. BERMUDEZ

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Court of Appeal, Fourth District, Division 3, California.

The PEOPLE, Plaintiff and Respondent, v. Raul Pineda BERMUDEZ, Defendant and Appellant.

No. G014957.

Decided: June 28, 1996

Tom Stanley, for Defendant and Appellant. Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Garrett Beaumont and Peter Quon, Jr., Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

Raul Pineda Bermudez was convicted of kidnapping for ransom and conspiracy and sentenced to life in prison with the possibility of parole.   (See Pen.Code, §§ 209, subd. (a);  182, subd. (a)(1).) 2  On appeal, we determined there was sufficient evidence of guilt and corroboration of accomplice testimony.   We also found the trial court was empowered under section 1385 to strike the “kidnapping for ransom allegation” and reduce the offense to simple kidnapping.   On direction of the Supreme Court, we granted rehearing on the section 1385 issue in light of People v. Rayford (1994) 9 Cal.4th 1, 36 Cal.Rptr.2d 317, 884 P.2d 1369. Rayford states kidnapping for ransom is a crime separate from, not an enhancement to, simple kidnapping.   Thus, we incorrectly characterized kidnapping for ransom as an enhancement to simple kidnapping.   That does not end the discussion, however.   Because a trial court may still reduce a kidnapping for ransom conviction to simple kidnapping (People v. Marsh (1984) 36 Cal.3d 134, 202 Cal.Rptr. 92, 679 P.2d 1033), we remand for the trial court to consider if such a reduction is appropriate.

I

Posing as police officers, Sam Carrera and Andres Londono went to Eugenio Duarte's car dealership, announced his “arrest,” and abducted him in their vehicle.   They then met Jose Magana and Raul Ruiz, who took the blindfolded Duarte to a cabin near Lake Arrowhead.   Over the next few days, Duarte was guarded at gunpoint while his captors demanded ransom from his brother, Justino.

Working with police, Justino agreed to have $100,000 delivered to a 7–Eleven store in Compton in exchange for Duarte's safe return.   At the time specified for the delivery, the police spotted a blue Chevrolet at the store and a white Nissan nearby.   After an hour, the cars rendezvoused at the 7–Eleven and then left the area.

The police promptly stopped the cars and discovered appellant Raul Bermudez, his brother Mario, and Carrera in the Nissan;  and Londono and Ruiz in the Chevrolet.   The Bermudez brothers and Carrera were wearing security guard garb and carrying handguns.

In exchange for leniency, Ruiz testified for the prosecution and explained the plan was conceived by Carrera, Magana, and himself about a week before the kidnapping occurred.   A couple of days later, Mario and Londono joined the scheme.   Appellant was not directly involved in planning or carrying out Duarte's abduction.   However, the first night after the kidnapping, he was present at Whittier Narrows Park where the ransom money was originally going to be delivered.

Ruiz followed Carrera to the park and saw Londono and the Bermudez brothers upon arrival.   At one point, all five gathered in a group and discussed the kidnapping and the prospect of the ransom money being delivered.   Appellant asked questions about the kidnapping at this time.   When the money was not delivered after a couple of hours, the group dispersed.

The next day, Carrera and Ruiz met Londono and the Bermudez brothers at a swap meet.   Londono made a phone call and confirmed the ransom money was going to be delivered to the Compton 7–Eleven.   As detailed above, the men drove in two cars to the drop site and were arrested as they left the scene.

Phone records revealed that in the 10 days preceding appellant's arrest, several phone calls were made between his residence and pager and Carrera's, Magana's, and Londono's residences.   However, neither the identity of the caller(s) nor the content of the calls could be determined.

Testifying on his own behalf, appellant explained he owns a security guard business which employed Londono, Carrera, and his brother Mario.   Appellant went to Whittier Narrows to see if Carrera was available to work the next day.   Appellant spoke only with Carrera and never heard any conversation concerning a kidnapping or ransom plan at the park.   The following evening, Carrera and Mario picked up appellant to drive to a job in Compton.   Along the way, they stopped near the 7–Eleven and waited for some money to be delivered to Londono.   When no one showed up, appellant became impatient and asked what was going on.   Carrera explained they were waiting to receive money for a person they had at a cabin.   Appellant immediately wanted to leave and was surprised when they were eventually arrested.   He never discussed or participated in any kidnapping plot with the others.

II**

III

The final issue deals with the court's authority under section 1385.4  At sentencing, the court believed it had but two options—probation or life with the possibility of parole.5  However, as we now explain, the court was empowered to reduce Bermudez's conviction for kidnapping for ransom to simple kidnapping, which carries a sentencing range from three to eight years.  (See §§ 207, subd. (a);  208, subd. (a).)

At the outset, we note the Attorney General has argued this issue differently on different occasions.   When we first heard this case, he claimed the court's striking power under section 1385 is limited to cases where the defendant is facing a sentence of life without the possibility of parole.   However, after we disproved that claim (see People v. Thomas (1992) 4 Cal.4th 206, 211, 14 Cal.Rptr.2d 174, 841 P.2d 159 [trial court may order section 1385 dismissal in any situation where the Legislature has not clearly evidenced a contrary intent], the Attorney General reformulated his argument based on People v. Rayford (1994)) 9 Cal.4th 1, 36 Cal.Rptr.2d 317, 884 P.2d 1369. Raising the issue for the first time in his petition for review, the Attorney General argued Rayford abrogated the court's authority to reduce Bermudez's kidnapping for ransom conviction to simple kidnapping.   We disagree.

Rayford considered whether kidnapping for rape is an offense separate from, or an enhancement to, simple kidnapping.  (People v. Rayford, supra, 9 Cal.4th at p. 5, 36 Cal.Rptr.2d 317, 884 P.2d 1369.)   One of the reasons it found the acts constituted separate offenses is kidnapping for rape is comparable “with the crimes of kidnapping for purposes of robbery and ransom, which are clearly separate crimes from, not enhancements to, simple kidnapping.  [Citations.]”  (Id. at p. 11, 36 Cal.Rptr.2d 317, 884 P.2d 1369.)   It is thus incorrect to refer to kidnapping for ransom as an enhancement to simple kidnapping.   However, Rayford does not mention section 1385 or whether that provision permits a court to reduce a kidnapping for ransom conviction to simple kidnapping.   To answer that question, we must revisit the Supreme Court's earlier decision in People v. Marsh (1984) 36 Cal.3d 134, 202 Cal.Rptr. 92, 679 P.2d 1033.

In Marsh, the defendant was convicted of “kidnapping for ransom with bodily harm” within the meaning of section 209.  (People v. Marsh, supra, 36 Cal.3d at p. 137, 202 Cal.Rptr. 92, 679 P.2d 1033.) 6  At sentencing, he moved to strike the ransom and bodily harm “allegations” in order to be eligible for commitment to the California Youth Authority.   (Id. at pp. 137–139, 202 Cal.Rptr. 92, 679 P.2d 1033.)   The trial court denied the motion, expressing doubts about the scope of its authority under section 1385.  (Ibid.)  However, the Supreme Court found section 1385 authorized the reduction.

In so finding, the court analyzed its prior decisions involving section 1385, starting with People v. Williams (1981) 30 Cal.3d 470, 179 Cal.Rptr. 443, 637 P.2d 1029:  “In Williams we held that trial courts have the power under section 1385 to strike jury findings of special circumstances that would require the defendant to be sentenced to life without possibility of parole.   In reaching that result we reviewed a series of cases dealing with section 1385, beginning with People v. Burke (1956) 47 Cal.2d 45 [301 P.2d 241].   In Burke, we had considered whether section 1385 could be used to strike a prior conviction which had been admitted by the defendant and which would have increased the required sentence.   In holding that section 1385 could be so used, we stated:  ‘The authority to dismiss the whole includes, of course, the power to dismiss or “strike out” a part.’  (Id. at p. 51 [301 P.2d 241].)   Following Burke, we upheld the use of section 1385 to dismiss an entire action after trial and conviction where the dismissal is based on insufficiency of the evidence although, in fact ‘there is sufficient evidence of guilt, however weak.’  (People v. Superior Court (Howard) (1968) 69 Cal.2d 491, 504 [72 Cal.Rptr. 330, 446 P.2d 138].)   Thereafter, use of section 1385 was also approved to strike jury findings of weapons use that would have enhanced a sentence by five years.  (People v. Dorsey (1972) 28 Cal.App.3d 15 [104 Cal.Rptr. 326].)”  (People v. Marsh, supra, 36 Cal.3d at pp. 142–143, 202 Cal.Rptr. 92, 679 P.2d 1033.

Marsh distinguished these cases from People v. Tanner (1979) 24 Cal.3d 514, 156 Cal.Rptr. 450, 596 P.2d 328, which held “section 1385 could not be used to strike a firearm use finding in order to place an otherwise ineligible defendant on probation, because the Legislature had precluded such an exercise of judicial discretion by expressly prohibiting probation for persons convicted of specified crimes while using a firearm.  [Citation.]”  (People v. Marsh, supra, 36 Cal.3d at p. 143, 202 Cal.Rptr. 92, 679 P.2d 1033.)  Marsh explained Tanner did not conflict with Williams, Burke, Howard or Dorsey but simply illustrated the rule that it takes a “specific legislative indication” to override a court's authority under section 1385.  (Ibid.;  but see People v. Thomas, supra, 4 Cal.4th at p. 211, 14 Cal.Rptr.2d 174, 841 P.2d 159 [“it is not necessary that the Legislature expressly refer to section 1385 in order to preclude its operation.”].)   Finding no such legislative expression precluding a reduction from aggravated to simple kidnapping, Marsh held the trial court had broad authority to reduce defendant's sentence on remand.  (Id. at pp. 143–144, 202 Cal.Rptr. 92, 679 P.2d 1033.

Although Rayford makes no mention of Marsh, the Attorney General submits Rayford impliedly overruled “Marsh and clearly requires a finding that section 1385 does not authorize a trial court to strike the ransom and bodily harm elements from a kidnapping for purposes of ransom conviction.”   But if that were true, Bermudez would effectively be subjected to greater punishment based on decisional authority rendered after his offenses were committed and after he was convicted.7  This, of course, would violate the constitutional protection against ex post facto lawmaking.  (See People v. Davis (1994) 7 Cal.4th 797, 811–812, 30 Cal.Rptr.2d 50, 872 P.2d 591;  People v. King (1993) 5 Cal.4th 59, 79–80, 19 Cal.Rptr.2d 233, 851 P.2d 27;  People v. Wharton (1991) 53 Cal.3d 522, 586, 280 Cal.Rptr. 631, 809 P.2d 290;  see also People v. Scott (1994) 9 Cal.4th 331, 356–358, 36 Cal.Rptr.2d 627, 885 P.2d 1040 [procedural sentencing rule applied prospectively only].)

Moreover, it would be illogical to apply Rayford in this instance, because the People did not charge Bermudez in accordance with that opinion.   As explained, Rayford states kidnapping for ransom is a separate crime from simple kidnapping.   However, the People charged Bermudez with kidnapping for ransom, and within that same count, further alleged that the taking was accomplished by forced movement, an additional requirement of simple kidnapping.  (See People v. Rayford, supra, 9 Cal.4th at p. 12, fn. 8, 36 Cal.Rptr.2d 317, 884 P.2d 1369.)   Thus, contrary to Rayford, the People treated kidnapping for ransom like an enhancement to, rather than a separate offense from, simple kidnapping.8  This point is important in light of the concerns expressed by the Supreme Court in People v. Superior Court (Prudencio) (1927) 202 Cal. 165, 259 P. 943, disapproved on other grounds in People v. Superior Court (Howard), supra, 69 Cal.2d at pp. 500–501, 72 Cal.Rptr. 330, 446 P.2d 138.

Prudencio was charged with “murder of the first degree and [ ] all the subdivisions and lesser degrees of murder and also manslaughter.”  (People v. Superior Court (Prudencio), supra, 202 Cal. at p. 167, 259 P. 943.)   Although the jury returned a verdict of first degree murder, the court “assumed” the verdict was for second degree murder and entered judgment for the lesser crime.  (Id. at p. 168, 259 P. 943.)   In considering Prudencio's belated contention the reduction was justified under section 1385, the Supreme Court stated, “[S]ection [1385] manifestly does not give the court the right to disregard the verdict of a jury and pronounce a sentence that does not respond to the verdict as rendered.”  (Id. at p. 173, 259 P. 943, italics added;  see also People v. Smith (1975) 53 Cal.App.3d 655, 126 Cal.Rptr. 195 [court could not use section 1385 to reduce charge to an uncharged and nonincluded lesser offense].)

Here, however, the jury found Bermudez guilty of kidnapping for ransom “as charged” in the information.   Since that charge expressly included the lesser offense of simple kidnapping, authorizing the court to pronounce sentence on the lesser offense would, unlike Prudencio, be responsive to the jury's verdict.  (See generally People v. Barrick (1982) 33 Cal.3d 115, 133, 187 Cal.Rptr. 716, 654 P.2d 1243 [“a crime is a necessarily lesser included offense if it is within the offense specifically charged in the accusatory pleading.”].)

This procedure would also comport with the Supreme Court's pronouncement, “The authority to dismiss the whole includes [ ] the power to dismiss, or ‘strike out’ a part.”  (People v. Burke, supra, 47 Cal.2d at p. 51, 301 P.2d 241, citing People v. Superior Court (Prudencio), supra, 202 Cal. at p. 173, 259 P. 943.)   Indeed, it would be anomalous to interpret section 1385 as permitting the trial court to dismiss the kidnapping for ransom count altogether but not reduce that offense to simple kidnapping, an offense which was charged by the language of the information, incontrovertibly established by the evidence, and included in the court's instructions as a lesser included offense.9

“[S]ection 1385 has long been recognized as an essential tool to enable a trial court ‘to properly individualize the treatment of the offender.’  [Citations.]”  (People v. Tanner, supra, 24 Cal.3d at p. 530, 156 Cal.Rptr. 450, 596 P.2d 328 (conc. and dis. opn. of Tobriner, J.).)   It was designed to alleviate “[m]andatory, arbitrary or rigid sentencing procedures [which] invariably lead to unjust results.”  (People v. Dorsey, supra, 28 Cal.App.3d at p. 18, 104 Cal.Rptr. 326.)   As reiterated in Williams, “Society receives maximum protection when the penalty, treatment or disposition of the offender is tailored to the individual case.   Only the trial judge has the knowledge, ability and tools at hand to properly individualize the treatment of the offender.   Subject always to legislative control and appellate review, trial courts should be afforded maximum leeway in fitting the punishment to the offender.”  (People v. Williams, supra, 30 Cal.3d at p. 482, 179 Cal.Rptr. 443, 637 P.2d 1029, citation and internal quotation marks omitted.)

Since the Legislature has not imposed any restrictions on the trial court's use of section 1385 to reduce the offense of kidnapping for ransom to simple kidnapping, we remand the matter to the trial court to determine whether such a reduction would further the ends of justice.  (See People v. Superior Court (Romero), supra, 13 Cal.4th at p. 531, 53 Cal.Rptr.2d 789, 917 P.2d 628 [“furtherance of justice” standard requires the trial court to consider not only the defendant's rights, defendant's background, and the nature of the present offenses, but also the interests of society and other individualized considerations].)   In all other respects the judgment is affirmed.

I respectfully dissent.   The majority opinion results in an evisceration of constitutionally defined barriers in holding that a trial court has the power to rewrite the D.A.'s charging allegations and consequently select the crime for which it will sentence a defendant.  (See People v. Smith (1975) 53 Cal.App.3d 655, 659, 126 Cal.Rptr. 195 [trial court cannot dismiss a felony assault charge, yet accept the defendant's guilty plea to the lesser related charge of battery as section 1385 permits only dismissal, not reduction].)   As the Supreme Court recently stated, “in cases charged under [the Three Strikes Law], a court may exercise the power to dismiss granted in section 1385, either on the court's own motion or on that of the prosecuting attorney, subject, however, to strict compliance with the provisions of section 1385 ․”  (People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 504, 53 Cal.Rptr.2d 789, 917 P.2d 628, [slip opn. at p. 2], emphasis added.)   Section 1385 does not grant the court the power to strike certain words from the crime of kidnapping for ransom, hence reducing it to a lesser, but not necessarily included, charge of simple kidnapping.  People v. Burke (1956) 47 Cal.2d 45, at page 51, 301 P.2d 241, held that section 1385 empowers a trial court to dismiss an “action ․ [and] the authority to dismiss the whole includes, of course, the power to dismiss or strike out a part[,]” citing People v. Superior Court (Prudencio) (1927) 202 Cal. 165, 173, 259 P. 943.   But neither Burke nor Prudencio intended that statement to mean a court can strike out a few words of a single charge, thereby reducing it to another.   Actually, Prudencio established the opposite.   On appeal of a second degree murder, it held that section 1385 could not support a trial court's reduction—albeit inadvertent—of a first degree murder verdict to that of second degree.

Trial courts must strictly comply with section 1385;  they cannot encrouch on the charging function without violating the separation of powers doctrine.   (People v. Smith, supra, 53 Cal.App.3d at p. 659, 126 Cal.Rptr. 195.)   Because kidnapping for ransom is a separate crime from that of simple kidnapping (People v. Rayford (1994) 9 Cal.4th 1, 8, 36 Cal.Rptr.2d 317, 884 P.2d 1369), a trial court does not have the power to reduce a conviction for kidnapping for ransom into simple kidnapping, even if it is lesser and related.  (Cf. id., at p. 12, fn. 8, 36 Cal.Rptr.2d 317, 884 P.2d 1369.) The rationale of People v. Marsh (1984) 36 Cal.3d 134, 202 Cal.Rptr. 92, 679 P.2d 1033—which held to the contrary—was pivotally undermined by the new rule of Rayford, establishing kidnapping for ransom as a separate offense from simple kidnapping, and not a mere enhancement.   Our Supreme Court has ordered us to reconsider our original decision in light of the new rule in Rayford.

In addition, the majority's fear of an ex post facto application to Bermudez is truly groundless.   Procedural changes do not invoke ex post facto protection.   If a change in the law does not (1) punish as a crime an act which was innocent when done;  (2) make more burdensome the punishment for that crime;  or (3) deprive an accused of any defense available at the time that the act was committed, then such a change is merely procedural and does not invoke the ex post facto prohibition.  (Tapia v. Superior Court (1991) 53 Cal.3d 282, 294, 279 Cal.Rptr. 592, 807 P.2d 434;  California Dept. Of Corrections v. Morales (1995) 514 U.S. 499, 115 S.Ct. 1597, 131 L.Ed.2d 588 [statute decreasing inmate's chances and opportunities for parole do not violate ex post facto].)   Here, none of these concerns are present.

Penal Code section 1385 cannot be so broad as to eliminate the executive's exclusive power and responsibility to bring charges and to choose which charges to bring.  (People v. Smith, supra, 53 Cal.App.3d at p. 659, 126 Cal.Rptr. 195.)   I would affirm the judgment below in its entirety.

FOOTNOTES

2.   All further statutory references are to the Penal Code.

FOOTNOTE.   See footnote 1, ante.

4.   Section 1385, subdivision (a) provides in pertinent part, “The judge or magistrate may, either of his or her own motion or upon the application of the prosecuting attorney, and in furtherance of justice, order an action to be dismissed.”

5.   The court stated, “Mr. Bermudez is probably the hardest sentencing I've had to deal with since I've been a judge.  [¶] Usually the answers present themselves with less agony, but your good record is such that it makes me think long and carefully before I impose sentence.  [¶] The Legislature has given me two alternatives only.   One is life in prison with [the] possibility of parole[.][ ]  That's a very long, harsh, severe punish[ment] for somebody who's never done anything wrong before.  [ ][¶] The punishment [ ] makes it worse than a lot of other very, very serious crimes.   And there are times that a judge would like to have a third or middle ground, something not so severe as life with [the] possibility of parole and not quite so lenient as probation.   But I have to make the choice between those two sentencing alternatives that are given to me.   [ ][¶] It's my conclusion, sir, that you were very much involved in this crime, and I'm sentencing you to life in prison.   I wish I didn't have to do that but this is a very, very serious crime and that is the judgment of the court.”

6.   At the time Marsh was decided, section 209, subdivision (a) provided:  “Any person who seizes, confines, inveigles, entices, decoys, abducts, conceals, kidnaps or carries away any individual by any means whatsoever with intent to hold or detain, or who holds or detains, such individual for ransom, reward or to commit extortion or to exact from another person any money or valuable thing, or any person who aids or abets any such act, is guilty of a felony and upon conviction thereof shall be punished by imprisonment in the state prison for life without possibility of parole in cases in which any person subjected to any such act suffers death or bodily harm, or is intentionally confined in a manner which exposes such person to a substantial likelihood of death, or shall be punished by imprisonment in the state prison for life with the possibility of parole in cases where no such person suffers death or bodily harm.”   (People v. Marsh, supra, 36 Cal.3d at pp. 143–144, fn. 7, 202 Cal.Rptr. 92, 679 P.2d 1033.)   The statute has undergone only minor, nonmaterial changes since Marsh.

7.   The kidnapping in this case occurred in 1992, Bermudez was convicted in 1993, and Rayford was decided on December 19, 1994.

8.   Of course this was perfectly logical since the information was filed before Rayford was decided.

9.   The dissent overlooks these circumstances in its overzealous defense of the prosecutor's charging powers.   Unquestionably, the “ ‘function of determining which persons are to be charged with what criminal offenses' is that of the executive branch.”  (People v. Geiger (1984) 35 Cal.3d 510, 529, 199 Cal.Rptr. 45, 674 P.2d 1303.)   But “ ‘once the state is ready to present its case in a judicial setting “the prosecutorial die has long since been cast.”  [ ] “When the decision to prosecute has been made, the process which leads to acquittal or sentencing is fundamentally judicial in nature.”  [Citations.]’  [Citation.]”  (Id. at pp. 529–530, 199 Cal.Rptr. 45, 674 P.2d 1303;  see also People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 517, 53 Cal.Rptr.2d 789, 917 P.2d 628 [“When the jurisdiction of a court has been properly invoked by the filing of a criminal charge, the disposition of that charge becomes a judicial responsibility.”].)In Geiger, the People relied on section 1385 in contending a defendant should not be permitted to be convicted of uncharged, lesser related offenses.   However, the court rejected this position because “[t]he charging functions of the prosecutor are not involved at the time a verdict must be reached.   The only action to be taken, and question to be resolved, at this stage of the proceedings is the determination of guilt or innocence of the charged offense or any lesser or related offense that the prosecution has proved.”  (People v. Geiger, supra, 35 Cal.3d at p. 528, 199 Cal.Rptr. 45, 674 P.2d 1303.)   Of course the sentencing phase of trial, during which the court below would decide whether to exercise its authority under section 1385, is even farther removed from the prosecution's initial charging decision.   It would in no manner infringe, let alone “eliminate,” the executive's charging powers to allow the trial court to decide if the interests of justice warranted reducing Bermudez's conviction to an offense which was necessarily included within the very charges brought by the district attorney.

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