PEOPLE v. VIVENZI

Reset A A Font size: Print

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

PEOPLE of the State of California, Plaintiff and Respondent, v. Bartolo Giovanni VIVENZI, Defendant and Appellant.

AO27501.

Decided: October 25, 1985

Emphaim Margolin, San Francisco, for defendant and appellant. John K. Van de Kamp, Atty. Gen., Eugene W. Kaster, Kristofer Jorstad, Deputy Attys. Gen., San Francisco, for plaintiff and respondent.

Bartolo Giovanni Vivenzi appeals from a judgment entered upon a jury verdict finding him guilty of kidnapping for ransom (Pen.Code, § 209, subd. (a)) and conspiring to commit such a kidnapping (Pen.Code, § 182), for which he was sentenced to a term of life imprisonment with possibility of parole.

On May 8, 1983, 70-year-old Edward Mecchella, Sr. was kidnapped from his home in Santa Cruz by three men—“Mad Mike” Stafford, James Welborn and John Vivo.   We summarize the bizarre circumstances surrounding this abduction as follows.

According to the victim's son, Edward Mecchella, Jr., he was contacted in November 1982 by James Beatty of Hilton Head, South Carolina.   Beatty, a known narcotics trafficker, told Mecchella, Jr. that he was in need of an $100,000 loan, which sum he would be willing to repay plus an additional $50,000 to as much as $150,000 in interest in as little time as two weeks.   Mecchella, Jr. responded that he did not have that amount of money, but would try to put Beatty in contact with someone who did.   Shortly thereafter Mecchella, Jr. related these facts to appellant and, when the latter expressed interest, a meeting was arranged.

In late November 1982 Beatty arrived in Santa Cruz where Mecchella, Jr. introduced him to appellant and his wife at a restaurant, from where the group travelled to the home of appellant's brother.   The details of the loan were discussed, and the meeting ended with appellant's brother counting out $75,000 in cash and transferring it to Beatty.

Soon thereafter, when it became apparent that Beatty would not be able to repay the money as a result of his boat's encountering engine trouble in the Bahamas (Paul Mecchella, another of the victim's sons, was aboard the vessel at the time), a series of meetings took place between appellant and Mecchella, Jr. where the former demanded immediate repayment of the loan.   The last of these meetings ended with appellant becoming angry and stating “I know where your parents' house is.”

According to the kidnapper Welborn (who pled guilty to kidnapping and became a prosecution witness pursuant to a plea bargain in which he was sentenced to a life term with possibility of parole), he and Vivo were recruited by Stafford to “lean on” Mecchella, Jr.   The trio arrived in Santa Cruz five or six days prior to the kidnapping, and spent two days looking for Mecchella, Jr. without success.   On May 6 the three contacted appellant in the second-floor office of his body shop.   When appellant entered the office, Stafford produced a machine gun with a silencer and, stepping to the window, fired off a short burst.   According to Welborn, thereafter appellant did most of the talking and appeared to be “calling the shots.”   He informed the trio that Mecchella, Jr. owed him money and, writing an address on a scrap of paper, gave it to Stafford, saying it was where Mecchella's parents lived.  “Get the old man or the old lady,” appellant said, by which Welborn understood him to mean that he didn't care what happened to the elderly couple and was only interested in the return of the money.

Appellant also volunteered that the senior Mecchellas had an automobile for sale and suggested that the trio might gain admittance to their home by inquiring about the car.   Stafford then asked how much appellant would pay for the return of the money and appellant replied “10,000.”   Stafford then asked for “lunch money” and appellant gave him $100.

Stafford, Vivo, and Welborn then spent another day unsuccessfully trying to locate Mecchella, Jr. before Stafford announced it was time to “snatch the old man.”   The three of them drove to the senior Mecchellas' residence where Welborn was informed by Mrs. Mecchella that her husband was not home and that he should return the next morning.   Welborn returned at about 10:45 a.m. the next day (Sunday, May 8), and Edward Mecchella, Sr. answered the door.   When Welborn asked to inspect the automobile Mr. Mecchella presented him the keys and the two took it for a test drive.   After a short distance, Welborn produced a pistol and told the victim to stay calm.   In response to the victim's inquiries Welborn told him that his son owed $75,000 for drugs and that they just had to “get your son to come out and talk to these people, and then it's over.”

Shortly thereafter Mrs. Mecchella answered the phone and a man's voice said, “We're holding your husband for ransom.   Your son, Ed, owes us $100,000.”   The man said he would call back in a while with instructions, “And if you call the police, we'll kill him.”

In the meantime, Welborn, after rendezvousing with Stafford and Vivo and changing cars, had transported the victim to a cabin in a wooded area near Pescadero.   The kidnappers were heavily armed with Stafford's machine gun, an M–1 rifle, an automatic pistol with a silencer and a sawed-off shotgun.   Around noon, saying he was going to call appellant, Stafford went to a neighboring house and asked to use the telephone.   Telephone company records show calls from this telephone to appellant's “beeper” at 12:42 and 12:58 p.m. on May 8.

Meanwhile, Mrs. Mecchella had conveyed the ransom message to her sons, Ed and Paul, and to Lloyd Sheppard, a family friend.   Mecchella, Jr. immediately mentioned appellant as the likely culprit and told the others of the argument several weeks earlier about the money.   Paul and Sheppard thereupon contacted the police who installed a tape recorder on the Mecchella telephone.   When the kidnapper called again, Mecchella, Jr. answered and explained that he didn't have $100,000, but offered instead to turn over his Porsche and whatever cash he could raise on that Sunday afternoon.   The kidnapper hung up.   When the man called back, however, he told Mecchella, Jr. to bring his car and the money to a house in Capitola where Mecchella, Jr. had often seen appellant.

According to Welborn, when Stafford returned to the cabin he announced that he had talked to appellant.  “[Appellant] said we got the right one.   Everything is going down smooth.”   There was only one hitch:  it was Sunday, the banks were closed, and Mecchella, Jr. could not get a lot of money.   Stafford explained that they had decided to settle for a Porsche and a down payment on the debt.  “Everything is cool,” he assured Vivo and Welborn.   Stafford came and went several more times that evening.   Telephone records show that he called appellant's business number, home, and the house in Capitola, beginning at 6:26 p.m.

The police had in the meantime devised a plan to deliver the ransom under surveillance.   Mecchella, Jr. was to drive his Porsche to the house in Capitola.   When approached for delivery of the car, he was to give the “contact” a set of keys that did not work, then walk away as the police made arrests.   According to plan, he parked in front of the house and waited until a stranger emerged from the residence and approached him.   He displayed the car keys and papers and asked if his father were all right.   The man said he had to make a call and went back into the residence.   Moments later, appellant's brother and another man drove up.   When the brother entered the house, the police converged and arrested him and two of appellant's employees.

Mecchella, Jr. then drove home to await events.   Appellant soon called him and said that if his brother were released from jail he would try to arrange the return of the senior Mecchella.   Later that evening, Paul Mecchella and Lloyd Sheppard observed appellant driving slowly by the senior Mecchella residence.   When Paul inquired about his father, appellant, after denying that he knew where the victim was, assured him that he was “all right” and instructed Paul to have his brother get together $100,000 by the following morning.   The police arrested appellant at 11 p.m. that night.

The next morning Stafford advised his cohorts at the cabin that he was going for breakfast and would be back shortly.   He did not return.   At about 3 p.m. that afternoon, however, he and appellant's wife visited attorney Peter Chang (appellant's trial counsel).   Chang was aware that appellant was in custody and that the kidnappers were still at large and the victim still at risk.   He testified at trial that he and appellant's wife provided Stafford $8,400 to procure the release of the victim after Stafford informed them that he knew where the old man was being held.

Back at the cabin, as the day wore on without Stafford's return, Vivo and Welborn became more and more anxious.   Upon learning that newspapers and radio were reporting the kidnapping and that a “statewide alert” had been issued, they placed the victim in a closet and tied him, loosely, to a chair.   They then warned him to remain there for two hours and fled.   After 15 minutes, Mecchella, Sr. untied the knots and ran outside.   Observing Stafford driving back toward the cabin, he hid in the woods until Stafford departed.   Eventually, he found a farm house where the residents took him in and contacted the police.

The defense theory at trial was that the $75,000, rather than having been a loan from appellant to Beatty which was “brokered” by Mecchella, Jr., was instead a loan from a third party named “Paco” to Beatty and Mecchella, Jr. which was “brokered” by appellant.   When repayment was not forthcoming, “Paco,” not appellant, had hired Stafford to pressure Mecchella, Jr., and appellant had only suggested to Stafford that this could be done through the parents under duress when confronted with Stafford's machine gun in his office.   He further became involved in a situation not of his own making when, realizing that the elder Mecchella had indeed been kidnapped, he had attempted to act as a mediator between Stafford and the Mecchellas in order to obtain the victim's release.   However, there was no direct testimony supportive of this theory (appellant did not testify in his own behalf) other than that of one of appellant's employees who related that the meeting between the trio and appellant involved “a lot of screaming and yelling” and that afterward appellant seemed upset.

Here, noting that the instruction provided the jury on aiding and abetting (CALJIC No. 3.01) has been found erroneous in People v. Beeman (1984) 35 Cal.3d 547, 199 Cal.Rptr. 60, 674 P.2d 1318, appellant contends, inter alia, that his conviction must be reversed as the present record fails to establish as a matter of law that he possessed the specific intent to kidnap the victim for ransom.   The People, claiming that its evidence abundantly establishes that the kidnapping and conspiracy were orchestrated by appellant and that no substantial defense evidence exists to the contrary, urge that any error in the aiding and abetting instruction be considered harmless.

As noted by appellant, the form instructions on aiding and abetting here given (CALJIC Nos. 3.00 and 3.01) were subsequent to the present trial invalidated by our high court in People v. Beeman, supra, which found them erroneous for focusing on the abettor's knowledge of the wrongful purpose of the perpetrator and for failing to require “proof that an aider and abettor rendered aid with an intent or purpose of either committing, or of encouraging or facilitating commission of, the target offense.”  (Ibid., at p. 551.)   While the test of prejudice for Beeman error is yet to be formulated, two recent high court decisions provide a clue.  Carlos v. Superior Court (1983) 35 Cal.3d 131, 197 Cal.Rptr. 79, 672 P.2d 862 held that proof of intent to kill or to aid a killing is essential to a finding of felony-murder special circumstances under Penal Code section 190.2, subdivision (a)(17).   A necessary implication of that holding is that an instruction on intent to kill is required whenever the special circumstance issue is tried to a jury.   And in People v. Garcia (1984) 36 Cal.3d 539, 205 Cal.Rptr. 265, 684 P.2d 826 the court, in considering the test of prejudice applicable when a trial court fails to instruct a jury in accord with Carlos and alluding to Beeman in a footnote wherein it was observed that the error common to both lay in removing the issue of intent from the jury's consideration, indicated that Carlos error might be considered harmless where (1) the erroneous instruction was given in connection with an offense for which the defendant was acquitted and the instruction had a bearing on the offense for which he was convicted;  (2) the defendant concedes intent;  (3) under other proper instructions the jury necessarily found the requisite intent;  or (4) the evidence establishes intent as a matter of law, i.e., the prosecution presented evidence establishing the necessary intent but the defense, although having reason to dispute the point, failed to present contrary evidence worthy of consideration.  (Garcia, supra, 36 Cal.3d at pp. 554–557, 205 Cal.Rptr. 265, 684 P.2d 826.)   With recourse to the principle of noscitur a sociis, a plausible inference is that the same four exceptions are to be considered in regard to Beeman error.

Here, the parties are in accord that—of the four exceptions to per se reversal delineated above—only the last (intent established as a matter of law) is arguably applicable.   With regard to that exception, however, the court in Garcia noted that in many cases such an analysis will be “difficult to apply.”  “If the defendant ․ was unaware that intent ․ was an element of the [crime charged], he might through ignorance fail to present evidence worthy of consideration on that matter.   We could not in such cases affirm a [finding of guilt] on the ground that defendant did not introduce evidence sufficient to raise a material issue.”  (Ibid., at p. 556, 205 Cal.Rptr. 265, 684 P.2d 826.)   The court then proceeded to find that this exception did not apply to the case before it since, inter alia, the testimony raising an inference of intent to aid came from a witness whose credibility was in serious doubt.   (Ibid., at p. 557, 205 Cal.Rptr. 265, 684 P.2d 826.)

In the case at bench, while agreeing with the People that the evidence of appellant's guilt is exceedingly strong, we hesitate to find the element of intent established as a matter of law.   Thus it is by no means impossible that appellant's failure to present evidence worthy of consideration on this issue could have resulted from a faulty understanding of the requisite mental elements induced by CALJIC No. 3.01.   It has been noted that the defense theory was that the elusive “Paco” had hired Stafford to pressure Mecchella, Jr. and appellant had only suggested under duress that this could be accomplished through the parents.   Of course, the only realistic hope of convincing a jury of such a theory lay (as now appears in hindsight) in appellant's testifying to these facts, which he failed to do.1  Yet it is quite possible that this decision not to testify was to some extent premised upon a belief that such testimony would be unavailing in any event since, if under CALJIC No. 3.01 knowledge of the perpetrators' wrongful purpose were alone sufficient, the jury might well find appellant guilty on a theory of aiding and abetting even if it believed his testimony.   That is, the jury might conclude that while he never specifically intended that Stafford kidnap the Mecchellas, appellant certainly knew that his cooperation in providing their address and suggesting a ruse by which they could be contacted was likely to place them in harm's way.   Under such circumstances we are unprepared to find intent established as a matter of law as required by our high court in Garcia, particularly where the testimony raising such an inference of intent to kidnap or aid a kidnap comes mainly from a witness whose credibility is badly tattered.

The most significant evidence relative to appellant's intent is, of course, Mecchella, Jr.'s account of the details of the aborted narcotics transaction whereby appellant is furnished a motive for the crime.   This testimony was provided under a grant of use immunity which—as to both the manner in which it was extended and the scope of the privilege it conferred—runs seriously afoul of the strict guidelines governing such grants.2  Thus, despite the statutory punctilio prescribing that the district attorney request such a grant in writing, we find that in the instant case the witness himself through counsel orally requested immunity to which, after the trial court indicated that it felt such a grant to be called for, the prosecution orally acquiesced.   Further, the oral nature of this transaction in turn introduces staggering uncertainties as to the breadth of the immunization offered.   Thus, again contrary to the statutory proviso that a witness testifying under such a grant remain subject to penalty for perjury, we find—with utter incredulity—the present grant described in the clerk's transcript as follows:  “In chambers, with counsel, Ed Mecchella, Jr., and his counsel Paul Meltzer, Mr. Meltzer advises the Court of his client's position.   Following further discussion, [the prosecutor] offers Ed Mecchella, Jr., immunity as to perjury in the instant trial, [Stafford's] trial and [Stafford's] preliminary hearing.   The Court grants the witness immunity for perjury.   Messrs. Mecchella and Meltzer leave Court's chambers and further discussion is held.”  (Emphasis added.)   And while the transcript of this in camera discussion does introduce some ambiguity as to whether the scope of impugnity was intended to be as pervasive as reported, there exists little doubt that the witness himself considered the grant to be plenary as the following colloquy in his cross-examination reveals:

“Q In the original proceeding in this case, months ago, you were given a grant of immunity, right?

“A Yes, sir.

“Q Immunity from being prosecuted for any crimes that you might testify to, right?

“A Yes, sir.

“Q Now, then, there came a second proceeding at which you were again asked to testify, and you were given immunity for any crime to which you might testify, right?

“A Yes, sir.

“Q And in addition to that, you were also given a grant of immunity, not only for any crime that you may testify to, but immunity for any perjury that you might commit, right?

“A Yes, sir.

“Q And in addition to that, you were also given immunity for any perjury that you might commit yesterday and today, right?

“A Yes, sir.

“Q So you have a rather free hand as to whatever you do;  you're not going to get in trouble for it, right?

“A Yes, sir.”   Emphasis added.

That Mecchella, Jr. conceived he had a license to lie not only poses insurmountable problems relative to appellant's due process and confrontational rights, it also impels us to conclude that his testimony bearing on the element of appellant's intent is so profoundly untrustworthy 3 as to render any instructional error on that element reversible even under the standard most favorable to the prosecution.  (People v. Watson (1956) 46 Cal.2d 818, 299 P.2d 243.)

The judgment is reversed.4

I respectfully dissent.

In Beeman the jury had been instructed in the language of CALJIC 3.00 and 3.01, as those instructions read prior to Beeman's announcement.   And Beeman said only:  “We hold that instruction No. 3.01 is erroneous.”  (Our emphasis;  35 Cal.3d p. 551, 205 Cal.Rptr. 265, 684 P.2d 826.)   CALJIC 3.00 was not so held.

And as relevant to this case Beeman also stated:  “[W]e conclude that the weight of authority and sound law require proof that an aider and abettor act with knowledge of the criminal purpose of the perpetrator and with an intent or purpose either of committing, or of encouraging or facilitating commission of, the offense.”  (Emphasis in original;  35 Cal.3d p. 560, 205 Cal.Rptr. 265, 684 P.2d 826.)

CALJIC 3.00, at the time of Beeman's announcement and now, reads, as here relevant:  “The persons concerned in the commission of a crime who are regarded by law as principals in the crime thus committed and equally guilty thereof include:  [those,] with knowledge of the unlawful purpose of the one who does directly and actively commits the crime, ․ who, whether present or not at the commission of the crime, advise and encourage its commission.”  (Our emphasis.)

I am of the opinion that one who, “with knowledge of the criminal purpose of the [crime's] perpetrator,” acts with a “purpose ․ of encouraging or facilitating commission of, the offense” (see Beeman, supra), was reasonably equated by the jury with those, “with knowledge of the unlawful purpose of the one who does directly and actively commits the crime, ․ who, whether present or not at the commission of the crime, advise and encourage its commissions.”  (See CALJIC 3.00.)

And those who, with knowledge of the crime and its unlawful purpose, “advise and encourage its commission,” necessarily act with the “intent or purpose” required by Beeman.   The rationale and holding of Beeman were satisfied, and the jury manifestly were not misled.

I would affirm the judgment.

FOOTNOTES

1.   The following appears in a post-trial declaration of trial counsel submitted in connection with a motion for a new trial.  “My client wished to testify in his own behalf at his trial.   However, I very adamantly refused to let him so do.   This decision was made at the last minute and over his objection and it was premised largely on a fear that a ledger allegedly found in my client's premises, purporting to be a record of large narcotics transactions, would be used by the prosecution in his cross examination․   The decision, in my opinion, spelled the turning point in the case because the failure of the defendant to testify left open numerous questions which only he could have and would have answered to the satisfaction of the jury.   Throughout the trial I had stressed that the defense in the case would be that the three alleged co-conspirators were acting as agents for a person named Paco, which person had loaned $75,000 in cash to my client and Ed Mecchella, the son of the kidnap victim.   Without the defendant's testimony the “Paco” defense became highly untenable and hollow because only the defendant could have testified to the existence of Paco, thereby giving him that necessary color and character confirming that he really existed, had the funds to loan as well as the motive to execute the kidnapping scheme without the knowledge of my client.   The way it turned out, Paco existed in the minds of the jurors as a phantom.”

2.   Penal Code section 1324 provides:“In any felony proceeding or in any investigation or proceeding before a grand jury for any felony offense if a person refuses to answer a question or produce evidence of any other kind on the ground that he may be incriminated thereby, and if the district attorney of the county in writing requests the superior court in and for that county to order that person to answer the question or produce the evidence, a judge of the superior court shall set a time for hearing and order the person to appear before the court and show cause, if any, why the question should not be answered or the evidence produced, and the court shall order the question answered or the evidence produced unless it finds that to do so would be clearly contrary to the public interest, or could subject the witness to a criminal prosecution in another jurisdiction, and that person shall comply with the order.   After complying, and if, but for this section, he would have been privileged to withhold the answer given or the evidence produced by him, that person shall not be prosecuted or subjected to penalty or forfeiture for or on account of any fact or act concerning which, in accordance with the order, he was required to answer or produce evidence.   But he may nevertheless be prosecuted or subjected to penalty or forfeiture for any perjury, false swearing or contempt committed in answering, or failing to answer, or in producing, or failing to produce, evidence in accordance with the order.”  (Emphasis added.)

3.   Even the prosecutor was not overly impressed with the veracity of his witnesses.   In his closing argument he commented:“Now, it would, of course, be refreshing if Brother Paul and Ed Mecchella, Jr., would get up here with their grants of immunity and tell us the truth.   That would be really nice, you know, if they'd get up here and admit what they did and admit what they did was wrong, and that they got their father into the soup because of that.   But that seems to be just a little too much filial devotion and courage to expect from men like Paul and Eddie Mecchella.”

4.   In the event of retrial, we caution both the People and the court below to meticulously adhere to the statutory procedure governing use immunity.   We will add, moreover, that the trial testimony of Edward Mecchella, Jr. has been sufficiently tainted by defects in the present proceedings as to render it valueless on retrial in the event of his unavailability.   This noted, the disposition we reach above renders unnecessary any discussion of the other claims of error raised by appellant.

NEWSOM, Associate Justice.

RACANELLI, P.J., concurs.