People v. Rotkin CA1/5 ( 2021 )

Filed 5/27/21 P. v. Rotkin CA1/5
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE,
Plaintiff and Respondent,
v. A158747
ALEKSANDR ROTKIN,
Defendant and Appellant.
(San Francisco County
Super. Ct. Nos. 231502,
19007576)
Aleksandr Rotkin appeals from his conviction for attempted kidnapping
of his girlfriend, Y.H., and their son, Adam R. (Pen. Code, §§ 664, 207, subd.
(a))1 and false imprisonment of Y.H. and Y.H.’s mother, B.L. (§ 236). Rotkin
seeks reversal on the grounds that: (1) the trial court erred in admitting 911
calls and related trial testimony from witnesses expressing speculative
opinions; (2) the trial court improperly instructed on the asportation element
for the attempted kidnapping of Adam R.; (3) there was insufficient evidence
that Rotkin attempted to move either Y.H. or Adam R. a substantial distance
to support his attempted kidnapping convictions; (4) there was insufficient
evidence of two other elements to support his attempted kidnapping
1 Undesignated statutory references are to the Penal Code.
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conviction of Adam R.; and (5) the jury did not decide the necessary elements
for the attempted kidnapping of Adam R.
We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The following is a brief summary of some of the factual and procedural
background in this case, which we set out to provide context to the issues
raised on appeal. Additional facts are included in our legal discussion.
Rotkin was charged by information with two counts of attempted
kidnapping (§§ 664, 207, subd. (a)); one count of felony false imprisonment
(§ 236); one count of misdemeanor false imprisonment (§ 236); one count of
child endangerment (§ 273a); and two counts of obstructing an officer (§ 69,
subd. (a)).
At trial, the prosecution presented surveillance video, witness
testimony, and footage from the body-worn cameras of police officers
responding to an incident on a residential street in San Francisco.
Surveillance video from a neighboring house showed that, around 10:55 a.m.
on May 15, 2019, Y.H. came out of her mother’s house and ran into the street
to flag down a passing white van. A neighbor’s son, Jesus A., testified that
Y.H. then ran across the street into their garage, seeming “very frightened”
and “scared.” Y.H. asked if she could hide there, but Jesus A. said no because
he did not know what was going on. The surveillance video showed Y.H.
returning to her mother’s house.
The surveillance video showed that, around 11:03 a.m., Y.H. came back
out of the house, this time holding Adam R. on the sidewalk and walking
towards an adjacent neighbor’s house. Rotkin also came out of B.L.’s house,
walked to Y.H., and appeared to hold and push Y.H. down the street and
away from B.L.’s house. At one point, B.L. exited her house and Rotkin
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appeared to grab B.L. while also holding Y.H. Police officers arrived a few
minutes later.
San Francisco Police Officers Richard Trujillo, Maria Peregrina, and
Roderick Suguitan responded to the scene and testified at trial. The body-
worn camera footage from Officer Trujillo was admitted into evidence and
played for the jury. The footage showed that, when Officer Trujillo asked
Rotkin and Y.H. to move out of the street and onto the sidewalk, Rotkin
responded: “My car is that way.” The body-worn camera footage from Officer
Peregrina was also admitted into evidence and played for the jury. It
depicted Rotkin holding a car key. Officer Peregrina testified that she
believed Rotkin “had his car keys or keys or someone’s keys in his hands.”
Officer Suguitan testified that he located Rotkin’s vehicle down the street,
and measured the distance to be approximately 189 feet from B.L.’s house.
He also testified that he measured the distance between B.L.’s house and the
adjacent neighbor’s house to be approximately 33 feet.
Rotkin testified on his own behalf as follows. Rotkin and Y.H. had been
dating for approximately two years at the time of trial, and their son Adam R.
was born in March 2018. Y.H. moved to her mother’s house after Adam R.
was born so that her mother could help with the baby. On the morning of the
incident, he and Y.H. were arguing about Adam R. Y.H. then ran into the
street and almost got hit by a car, which worried him. When Y.H. went
outside again, this time with Adam R., he was afraid she would run out onto
the street and tried to get her to come back inside B.L.’s house. When he
went outside to get Y.H., he took her keys and cell phone with him. On cross-
examination, Rotkin testified that he was not sure whether the car key he
was holding when the police arrived was his car key, or Y.H.’s car key.
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The jury found Rotkin guilty on both counts of attempted kidnapping
and both counts of false imprisonment. The jury found Rotkin not guilty of
child endangerment or obstructing an officer. On the attempted kidnapping
and felony false imprisonment counts, the court sentenced Rotkin to five
years of formal probation, with imposition of sentence suspended, and one
day of county jail, with credit of one day already served. On the
misdemeanor false imprisonment count, the court sentenced Rotkin to 297
days in county jail, with credits of 297 days already served.
DISCUSSION
Rotkin makes five primary arguments in this appeal. First, Rotkin
argues the court made evidentiary errors in admitting 911 calls and related
trial testimony that expressed speculative opinions from neighbor witnesses.
Second, Rotkin argues the court made an instructional error on the
asportation element for the attempted kidnapping of Adam R. Third, Rotkin
argues there was insufficient evidence that he attempted to move either Y.H.
or Adam R. a substantial distance to support his attempted kidnapping
convictions. Fourth, Rotkin argues there was insufficient evidence of two
other necessary elements for his attempted kidnapping conviction of Adam R.
Fifth, Rotkin argues the jury did not decide these two necessary elements for
the attempted kidnapping of Adam R. We address each argument in turn.
I.
Evidentiary Error Argument
Rotkin argues the court made evidentiary errors in admitting certain
911 calls and related testimony at trial because they expressed speculative
opinions from neighbor witnesses Christina M., Hai Bin F., and Jesus A. We
review the court’s evidentiary decisions for abuse of discretion. (People v.
Seumanu (2015) 61 Cal.4th 1293, 1311.) If a party establishes an abuse of
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discretion, we then determine whether he or she suffered any possible
prejudice. (People v. Wallace (2008) 44 Cal.4th 1032, 1058.)
A. Additional Facts
Prior to trial, Rotkin moved in limine to exclude, among other things,
(1) any opinion testimony regarding Rotkin’s guilt, whether he committed
any of the offenses charged, or the definitions of those offenses; (2) all
mentions of “ ‘kidnap’ ” or “kidnapping” in 911 calls related to the incident;
and (3) all speculative statements made by Jesus A. in his 911 call. The court
granted the motion as to any opinion testimony regarding Rotkin’s guilt or
innocence. The court allowed the 911 calls to be played as is, but with an
instruction to the jury that the term “kidnap” was being used colloquially, not
in accordance with its legal definition. The court granted the motion as to
Jesus A. in part, stating that Jesus A. could testify as to what he observed,
but striking any statement from the 911 call where Jesus A. speculated as to
“future activity.”
At trial, Christina M. testified that she lived two houses down from
B.L.’s house. As Christina M. was leaving her house, Y.H. approached her
and asked her to call 911. Christina M.’s 911 call was admitted into evidence
without objection, and played for the jury. During the 911 call, Christina M.
stated: “My neighbor needs help. Her husband or her partner is harassing
her and yelling at her here outside and she asked me to call the police.
[¶] . . . [¶] And she has a baby with her.” When the dispatcher asked if the
man was “trying to take the baby,” Christina M. responded: “Yeah. I don’t
know. They’re having an argument. I don’t know what’s going on. I just
walked out of my house.”
Hai Bin F. testified that she also lived on the same street as B.L.’s
house and called 911 when she saw a man struggling with a woman holding a
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baby. Hai Bin F.’s 911 call was admitted into evidence without objection, and
played for the jury. When the dispatcher asked what the man was doing, Hai
Bin F. responded: “Try to grab the baby and the—the lady just hold the
baby.” When the dispatcher later asked what the man was doing to the
woman, Hai Bin F. responded: “He grab—he—he try to grab the baby but
the—the lady just hold the baby.”
When the prosecutor asked Hai Bin F. what she saw while on the
phone with 911, Hai Bin F. testified that she saw “the man trying to grab the
baby from the female.” Defense counsel did not object. When the prosecutor
asked Hai Bin F. to describe what the man was doing to the woman, Hai Bin
F. testified that she saw the man “[g]rabbed baby and also hold onto the
woman.” Defense counsel objected to this testimony as speculative, but the
court overruled the objection as “a lay description of what [Hai Bin F.]
observed.” On cross-examination, the defense counsel then asked Hai Bin F.
a series of questions as to whether she assumed the man was a “bad” person
because the woman was crying. Hai Bin F. responded that she did.
Jesus A. testified that he called 911 after Y.H. asked him to hide her.
Jesus A.’s 911 call was admitted into evidence without objection, and played
for the jury. When the dispatcher asked what Jesus A. was seeing, he
responded: “Well, they’re playing a tug-of-war with a little child. A tug-of-
war. And I’m afraid it could escalate to—to ah, bigger thing.” Jesus A. stated
that the man calmed down because another neighbor was calling 911, and
that “if there wasn’t any—anybody pressing, it could have been escalation
probably.” Jesus A. then stated that the man was “really getting very ah,
aggressive.” When the dispatcher asked what was happening, Jesus A.
responded: “Oh man. I think he’s trying to kidnap her or something.” When
the dispatcher asked if he saw any weapons, Jesus A. responded: “No
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weapons. No, he’s trying to take her to—no, he’s trying to take her to his
car.” Jesus A. stated that the man was “[d]ragging” both the woman and
child “against their will.” After the 911 call was played, the court instructed
the jury that Jesus A. was using the word “kidnap” in the “everyday ordinary
meaning” and not in the “legal definition of the word.”
When the prosecutor asked Jesus A. why he thought the man was
trying to kidnap the woman, he responded: “Well, because I did observe—
during all this scenario, I did observe him and say, ‘Come with me. It’s my
baby. Come with me to my vehicle.’ He was trying—not drag them, but
physically taking the female and the baby to his vehicle. At that time, I
didn’t know what vehicle it was.” Defense counsel did not object. On cross-
examination, Jesus A. testified that the man used the word “car” or “vehicle,”
but could not remember exactly which word. Jesus A. stated: “Car or
vehicle, to me, is the same thing.”
B. Analysis
Rotkin argues that admission of the 911 calls from Christina M., Hai
Bin F., and Jesus A., as well as related trial testimony from Hai Bin F. and
Jesus A., was improper because it expressed the witnesses’ speculative
opinions. The People contend first that Rotkin forfeited these evidentiary
objections by not raising them below, but that the arguments nonetheless fail
on the merits.
As to the 911 calls from Christina M. and Hai Bin F., and Hai Bin F.’s
testimony regarding her assumption that the man was “bad” because he
made the woman cry, we agree that Rotkin’s arguments have been forfeited.
“ ‘A party desiring to preserve for appeal a challenge to the admission of
evidence must comply with the provisions of Evidence Code section 353,
which precludes reversal for erroneous admission of evidence unless: “There
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appears of record an objection to or a motion to exclude or to strike the
evidence that was timely made and so stated to make clear the specific
ground of the objection or motion.” ’ ” (People v. Ramos (1997) 15 Cal.4th
1133, 1171.) Defense counsel did not object to the admission of Christina M.
and Hai Bin F.’s 911 calls, and did not move to exclude or strike Hai Bin F.’s
testimony on cross-examination regarding her assumption. None of this
evidence was covered by Rotkin’s motions in limine, as it did not include the
terms “kidnap” or “kidnapping,” and did not involve any opinion as to
Rotkin’s guilt, commission of the charged offenses, or definitions of those
offenses.
Rotkin argues that even if forfeited, these issues are properly presented
on appeal as an ineffective assistance of counsel claim. The test for
ineffective assistance of counsel requires a criminal defendant to establish
both that his or her counsel’s performance was deficient and that he or she
suffered prejudice. (Strickland v. Washington (1984) 466 U.S. 668, 687.) “[I]f
the record sheds no light on why counsel acted or failed to act in the
challenged manner, we must reject the claim on appeal unless counsel was
asked for an explanation and failed to provide one, or there could be no
satisfactory explanation for counsel’s performance.” (People v. Castillo (1997)
16 Cal.4th 1009, 1015.) As the record here sheds no such light, and defense
counsel’s decision not to object to this evidence as speculative may have
resulted from a choice within range of reasonable competence, we reject
Rotkin’s ineffective assistance of counsel claim.
As to the 911 call and related testimony from Jesus A., as well as Hai
Bin F.’s testimony that defendant had grabbed Adam R., we address the
merits of Rotkin’s arguments because they were preserved through the
motions in limine and objection at trial. Rotkin argues that this evidence
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should have been excluded because it included improper lay opinion
testimony from Jesus A. and Hai Bin F. regarding Rotkin’s intent to kidnap,
as well as improper lay opinion testimony from Jesus A. regarding whether
Rotkin had committed the crime of kidnapping.
A lay witness may express an opinion, but only where (1) rationally
based on his or her perception; and (2) helpful to a clear understanding of his
or her testimony. (Evid. Code, § 800.) Such circumstances may arise when a
witness’s impression of what he or she observes regarding the demeanor of
another person rests on “subtle or complex interactions” involving that
person. (People v. Hinton (2006) 37 Cal.4th 839, 889.) While a lay witness
generally may not give an opinion about another person’s state of mind, he or
she “may testify about objective behavior and describe behavior as being
consistent with a state of mind.” (People v. Chatman (2006) 38 Cal.4th 344,
397.) A witness may not, however, express an opinion as to the guilt or
innocence of the defendant, or whether a crime has been committed. (People
v. Torres (1995) 33 Cal.App.4th 37, 47.) Such opinions are inadmissible
because they are of no assistance to the trier of fact: the trier of fact is just as
competent as the witness to draw those conclusions. (Ibid.)
Here, Jesus A. stated in his 911 call that he saw a man engaged in a
“tug-of-war” with a woman and was trying to take her to his car, and later
testified that he heard the man direct the woman to his vehicle. He stated
that he was afraid of the incident escalating, but that Rotkin appeared
temporarily calmer when another neighbor called 911. Hai Bin F. testified
that the man “[g]rabbed baby and also hold onto the woman.” These
statements were permissible because they were rationally based on Jesus A.
and Hai Bin F.’s observations, and described Rotkin’s objective behavior.
(People v. Chatman, supra, 38 Cal.4th at p. 397.)
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Jesus A. also stated in his 911 call that he thought the man was
“trying to kidnap her or something,” while observing that the man was
dragging a woman and child to his vehicle. This statement was permissible
because it tied a state of mind (trying to kidnap Y.H.) with an objective
behavior (moving Y.H. and Adam R. toward a vehicle). (People v. Chatman,
supra, 38 Cal.4th at p. 397.) Even if admission of this portion of the 911 call
was in error, any such error was harmless. (People v. Watson (1956)
46 Cal.2d 818, 836.) After playing the 911 call, the court instructed the jury
that Jesus A.’s use of the term “kidnap” was colloquial, not legal. The
instruction adequately addressed any concern that this testimony constituted
an improper lay opinion on whether the crime of kidnapping had been
committed. (See People v. Thompson (2010) 49 Cal.4th 79, 130 [determining
that jury admonishment regarding lay opinion testimony addressed concerns
about speculative comments by witness].)
In sum, we conclude that the court did not abuse its discretion in
admitting the 911 call and related testimony from Jesus A., or the testimony
from Hai Bin F.
II.
Instructional Error Argument
Rotkin argues that the court made an instructional error for the
attempted kidnapping of Adam R. by omitting a necessary instruction on the
element of “asportation,” i.e., that defendant moved the victim a substantial
distance. “We review challenges to the propriety of jury instructions in
correctly stating the relevant law under the de novo standard of review.”
(Collins v. Navistar, Inc. (2013) 214 Cal.App.4th 1486, 1500.) The initial step
of our inquiry is to determine whether the omission was instructional error.
(Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 573.) If we determine
10
there was an instructional error, we must then assess whether the erroneous
instruction was prejudicial and thus warrants reversal. (Id. at p. 574.)
A. Additional Facts
For the attempted kidnapping of Adam R., the court instructed the
jury with CALCRIM Nos. 460 and 1201. Pursuant to CALCRIM No. 460,
attempted kidnapping requires the prosecution to prove that defendant
(1) took a direct but ineffective step toward committing kidnapping; and
(2) intended to commit kidnapping. The court directed the jury to CALCRIM
No. 1201 to decide whether Rotkin intended to commit kidnapping of Adam
R.
Pursuant to CALCRIM No. 1201, kidnapping of a child requires the
prosecution to prove that defendant (1) used physical force to take and carry
away an unresisting child; (2) moved the child a substantial distance (the
“asportation” element); and (3) moved the child with an illegal intent or for
an illegal purpose. As given, CALCRIM No. 1201’s definition of “substantial
distance” instructed the jury that it may consider other factors beyond actual
distance, including “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.” The prosecutor requested a pinpoint
instruction for the definition of “illegal purpose or with an illegal intent,” that
the crime in question “need not be directed at the kidnapping victim.” The
court provided the pinpoint instruction over defense counsel’s objection.
B. Analysis
Rotkin contends that the court had a sua sponte duty to modify the
standard CALCRIM No. 1201 instruction. Specifically, Rotkin argues that
the definition of “substantial distance” should have instructed the jury that,
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in addition to the considerations set forth in the standard CALCRIM No.
1201 instruction, it may also consider whether the distance Adam R. was
moved was “beyond that merely incidental to the commission of” an
associated crime. The People first contend that Rotkin forfeited this
challenge by failing to raise it during the discussion on jury instructions, but
that the court’s instruction on the attempted kidnapping of Adam R. was
nonetheless proper. We address the merits of Rotkin’s argument, as it goes
to whether the court’s instruction was a complete and correct statement of
the law. (People v. Singh (2019) 42 Cal.App.5th 175, 183–184, fn. 3.)
A court has a sua sponte duty to instruct the jury on the essential
elements of a charged offense. (People v. Merritt (2017) 2 Cal.5th 819, 824.)
As the definition of “substantial distance” goes to the asportation element of
kidnapping, we must decide whether that element was “essential” to Rotkin’s
charge for attempted kidnapping of Adam R. (Ibid.)
This question was squarely addressed in People v. Cole (1985)
165 Cal.App.3d 41 (Cole). In Cole, the defendant was convicted of attempted
kidnapping where he entered a home, walked into the bedroom of the victim,
put a knife to her neck, led her downstairs directly to the front door, and then
fled. (Id. at pp. 46–48.) Cole concluded that there was substantial evidence
to support the conviction. (Id. at p. 50.) It explained: “An attempt to commit
a crime consists of (1) the specific intent to commit the crime, and (2) a direct
but ineffectual act done toward its commission.” (Id. at pp. 47–48.) It
determined that the jury reasonably found defendant’s forcing of the victim
directly to the front door to show the defendant’s intent to kidnap her, as well
as a direct, unequivocal act toward kidnapping her. (Id. at pp. 49–50.)
Importantly, Cole distinguished these elements of attempted kidnapping
from the elements of completed kidnapping. For completed kidnapping, the
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victim’s movement must be substantial. (Id. at p. 50.) But for attempted
kidnapping, the distance the victim was moved “is immaterial.” (Ibid.)
“[A]sportation simply is not an element of the offense.” (Ibid.)
Similarly, in People v. Fields (1976) 56 Cal.App.3d 954, 956 (Fields), the
defendant was convicted of attempted kidnapping after stopping his car
beside the victim, grabbing her by the head and hair, and telling her to get
into his vehicle. When the girl refused, the defendant drove off. (Ibid.) The
defendant argued that his attempted kidnapping conviction should be
reversed because his actions amounted to no more than battery. (Ibid.)
Fields rejected the argument, again relying on the distinction between
completed and attempted kidnapping. (Id. at p. 957.) In a completed
kidnapping, “where asportation has been accomplished, the requisite
movement for more than a slight distance can be measured with some
precision.” (Ibid.) But in an attempted kidnaping, “to require the
prosecution to show more than a forcible attempt to move the victim in order
to prove intent to move the victim a substantial distance, would be to read
the crime of attempted kidnaping out of the law.” (Ibid.)
Since Cole and Fields, it is well settled that asportation is not an
element of attempted kidnapping. (4 Witkin, Cal. Criminal Law (4th ed.
2021) Crimes Against the Person, § 316 [“Asportation is not required”];
Levenson & Ricciardulli, Cal. Criminal Law: Crimes Against the Security of
the Person (The Rutter Group 2020–2021) ¶ 6:60 [“Asportation is not element
of attempted kidnapping”].) We thus conclude that modification to the
instruction regarding what circumstances a jury may consider in determining
asportation was unnecessary because asportation is not an element of
attempted kidnapping.
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Rotkin’s argument to the contrary is unpersuasive because he only cites
authority on jury instructions for completed kidnapping, not attempted
kidnapping. For example, in People v. Martinez (1999) 20 Cal.4th 225, 237,
the California Supreme Court concluded that for a completed kidnapping case
involving an associated crime, “the jury should be instructed to consider
whether the distance a victim was moved was incidental to the commission of
that crime in determining the movement’s substantiality.” This direction
from Martinez regarding the jury instructions for completed kidnapping is
not applicable to the attempted kidnapping instructions in this case. In fact,
Martinez supports the distinction that asportation is a required element of
completed kidnapping, but not of attempted kidnapping. Upon determining
that the facts of the case did not satisfy the asportation standard, Martinez
modified the defendant’s completed kidnapping conviction to attempted
kidnapping. (Id. at p. 241.) Other courts have similarly modified convictions
from completed to attempted kidnapping where the evidence of asportation is
legally insufficient. (E.g., People v. Daly (1992) 8 Cal.App.4th 47, 57.)
In sum, we conclude that the court did not err in instructing the jury
with the standard CALCRIM Nos. 460 and 1201 instructions for the
attempted kidnapping of Adam R.2
III.
Insufficient Evidence Arguments
Rotkin makes two arguments regarding the sufficiency of evidence for
necessary elements of his attempted kidnapping convictions. First, as to both
Y.H. and Adam R., Rotkin argues that there was insufficient evidence that he
attempted to move them a substantial distance. Second, as to Adam R.,
2Having determined no error, we need not address Rotkin’s argument
that he suffered prejudice.
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Rotkin argues that there was insufficient evidence that he (1) attempted to
move Adam R. for an illegal purpose or intent; or (2) attempted to take Adam
R. away.
“To assess the evidence’s sufficiency, we review the whole record to
determine whether any rational trier of fact could have found the essential
elements of the crime . . . beyond a reasonable doubt.” (People v. Zamudio
(2008) 43 Cal.4th 327, 357.) “The record must disclose substantial evidence
to support the verdict—i.e., evidence that is reasonable, credible, and of solid
value—such that a reasonable trier of fact could find the defendant guilty
beyond a reasonable doubt.” (Ibid.) “In applying this test, we review the
evidence in the light most favorable to the prosecution and presume in
support of the judgment the existence of every fact the jury could reasonably
have deduced from the evidence.” (Ibid.) Reversal for insufficient evidence
“is unwarranted unless it appears ‘that upon no hypothesis whatever is there
sufficient substantial evidence to support [the conviction].’ ” (People v. Bolin
(1998) 18 Cal.4th 297, 331.)
A. Additional Facts
The surveillance video showed that, around 11:03 a.m., Y.H. came out
of B.L.’s house, holding Adam R. and walking towards an adjacent neighbor’s
house. Rotkin also came out of B.L.’s house, walked to Y.H., and appeared to
hold and push her down the street and away from B.L.’s house. Y.H. tried to
walk back towards the house, at which point Rotkin appeared to hold Y.H. in
place and then push her again away from the house. When B.L. came
outside, Rotkin and Y.H. moved back toward the house. When B.L. went
inside, Rotkin appeared to be holding Y.H.’s hand, pulling her away from the
house, and pointing in the direction away from the house. When B.L. exited
her house again, Rotkin grabbed B.L. B.L. broke free and went back inside
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her house, at which point Rotkin and Y.H. moved back toward the house.
Once B.L. was inside, Rotkin appeared to push Y.H. onto the street and away
from the house. Rotkin and Y.H. returned to the sidewalk and Rotkin
appeared to be pushing Y.H. away from the house. Rotkin and Y.H. moved
back into the street and Rotkin appeared to continue pushing Y.H. away from
the house while Y.H. signaled to an oncoming vehicle.
B. Analysis on Attempted Kidnapping of Y.H. and Adam R.
To support his position that there was insufficient evidence for the
attempted kidnapping of either Y.H. or Adam R., Rotkin relies primarily on
a juror letter and juror testimony presented at Rotkin’s sentencing hearing,
which detail the jurors’ deliberation and thought processes on the attempted
kidnapping charges. Statements from jurors that are submitted as proof of
their subjective reasoning process, which can be neither corroborated nor
disproved, are inadmissible to impeach a verdict under Evidence Code section
1150, subdivision (a). (English v. Lin (1994) 26 Cal.App.4th 1358, 1364,
1366.) As the juror letter and testimony was submitted by Rotkin as proof of
their reasoning processes on the attempted kidnapping charges, it is
inadmissible evidence that we do not consider here.
Beyond this inadmissible evidence, Rotkin again relies on authority
involving completed kidnapping convictions to argue that there was
insufficient evidence that he attempted to move Y.H. or Adam R. a
substantial distance. For example, Rotkin cites to In re Crumpton (1973)
9 Cal.3d 463, 466 for its conclusion that the asportation element for
aggravated kidnapping under section 209 was not met where the defendant
robbed a service station and forced the attendant to walk around that station.
These cases do not bear on the question of whether there was sufficient
16
evidence that Rotkin attempted to move either Y.H. or Adam R. a substantial
distance.
We again find Cole and Fields on point. In Cole, this court concluded
that substantial evidence supported the attempted kidnapping conviction
where the defendant entered a home, walked into the bedroom of the victim,
put a knife to her neck, led her downstairs directly to the front door, and then
fled. (Cole, supra, 165 Cal.App.3d at pp. 46–48.) In Fields, the appellate
court affirmed the attempted kidnapping conviction because “[w]here, as
here, a strange man seizes the person of a young girl on a residential street
and orders her to get into a vehicle whose motor is running, the specific
intent and the affirmative act required to constitute the crime of attempted
kidnapping are adequately manifested.” (Fields, supra, 56 Cal.App.3d at
p. 956.)
Here, the surveillance video showed Rotkin making several attempts to
push Y.H. and Adam R. down the street and away from B.L.’s house, by
holding Y.H. around the waist or pulling her by the hand. These attempts
included not only pushing her down the sidewalk, but pushing her onto the
street. The surveillance video showed Rotkin pushing Y.H. and Adam R. at
least to the adjacent neighbor’s house, which Officer Suguitan testified to be
approximately 33 feet from B.L.’s house. We thus conclude that there was
sufficient evidence to support a reasonable determination by the jury that
Rotkin attempted to move Y.H. and Adam R. a substantial distance.
C. Analysis on Attempted Kidnapping of Adam R.
Rotkin also argues there was insufficient evidence on two other
necessary elements for the attempted kidnapping of Adam R. under section
207, subdivision (e): (1) an attempt to move Adam R. “for an illegal purpose
or . . . intent;” and (2) an attempt to take Adam R. “away.”
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Rotkin contends that neither element is satisfied here because he was
trying to move Adam R. to safety, back inside B.L.’s house. But this is not
the only reasonable deduction that the jury could have made. As described
above, the surveillance video showed Rotkin making several attempts to push
Y.H. (while holding Adam R.) down the street and away from B.L.’s house.
Officer Suguitan testified that he located Rotkin’s vehicle down the street.
Officer Trujillo’s body-worn camera footage showed that, when asked to move
out of the street while still holding onto Y.H., Rotkin responded: “My car is
that way.” Officer Peregrina’s body-worn camera footage showed Rotkin
holding a car key. From this evidence, the jury could have reasonably
deduced that Rotkin attempted to move Adam R. to kidnap him (and Y.H.),
and attempted to take Adam R. (and Y.H.) away in his car.
Rotkin also argues that the “illegal purpose or intent” element was not
satisfied because Rotkin did not act with any illegal purpose or intent
specifically towards Adam R. As explained above, we conclude that the
evidence was sufficient to determine otherwise. But even if the evidence was
only sufficient as to the attempted kidnapping of Y.H., it would still satisfy
the “illegal purpose or intent” element as to Adam R. In People v. Hill (2000)
23 Cal.4th 853, 858, the California Supreme Court made clear that this
element of child kidnapping is satisfied by “the intent to commit a crime,”
even if that crime is not directed at the child. We reject Rotkin’s argument
that Hill should no longer be deemed good law based on the statutory
language in section 207. Hill is entirely consistent with that language, which
requires an amount of force “to take and carry the child away a substantial
distance for an illegal purpose or with an illegal intent.” (§ 207, subd. (e),
italics added.) It does not specify the crime associated with that purpose or
intent. (Ibid.)
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In sum, we conclude that there was sufficient evidence to support a
reasonable determination by the jury that Rotkin attempted to move Adam
R. for an “illegal purpose or intent” and attempted to take Adam R. “away,”
pursuant to section 207, subdivision (e).
IV.
Decision on Necessary Elements Argument
Lastly, Rotkin argues that his conviction for attempted kidnapping of
Adam R. should be reversed because the jury did not decide the elements of
(1) attempting to move Adam R. for an “illegal purpose or intent” or
(2) attempting to take Adam R. “away.” Rotkin contends that instead of
deciding these necessary elements as required for due process, the jury
improperly relied on its determination that Rotkin was guilty of the
attempted kidnapping of Y.H.
Defendant’s argument is premised entirely on the juror letter and
testimony detailing the jurors’ deliberation and thought processes on the
attempted kidnapping charges. We do not consider this inadmissible
evidence, for the reasons stated above.3 With no proper support for his
contention, and given that we must presume the jury followed their
instructions in the absence of contrary evidence (People v. Harris (2005)
37 Cal.4th 310, 350), we reject the argument.4
DISPOSITION
The judgment is affirmed.
3Having determined no error, we need not address Rotkin’s argument
that he suffered prejudice.
4Having concluded that Rotkin’s specific challenges yield no error, we
need not address Rotkin’s argument that his convictions should be reversed
for cumulative error.
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_________________________
Seligman, J.*
WE CONCUR:
_________________________
Simons, Acting P. J.
_________________________
Needham, J.
A158747
* Judge of the Superior Court of Alameda County, assigned by the Chief
Justice pursuant to article VI, section 6 of the California Constitution.
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