Police Warn of Released Former El Dorado County School Bus Driver & Sex Offender Michael Pitts
Yuba City police took the unusual step last week of alerting a neighborhood to the presence of a recently paroled sex offender whose information has not been placed on the Megan's Law registry.
Michael Conan Pitts was paroled after serving time in federal and state prisons for the attempted kidnapping of a 9-year-old girl in 2003 and possession of child pornography in 2002, authorities said.
Officers knocked on doors and passed out fliers with photographs of Pitts and the vehicle he drives to neighbors in the 700 block of Scirocco Drive.
Police spokeswoman Shawna Pavey acknowledged the move was uncommon for a police department.
"Given the nature of his offenses, we felt it was in the best interest of public safety," Pavey said.
Pitts, 35, declined to comment Saturday to the Appeal-Democrat.
A former El Dorado County resident, Pitts tried to kidnap a girl off a street in 2003 in Pollock Pines. Pitts attempted to force the girl into the trunk of his car, according to a 2006 ruling from the 3rd District Court of Appeal published online. The child escaped and was not hurt.
Pitts was convicted of attempted kidnapping in 2005 and sentenced to state prison. He was also convicted on an unrelated elder abuse case involving embezzlement from 2002, according to state prison records.
Pitts was transferred to a federal prison in 2009 on a child pornography possession conviction, authorities said. Investigators found more than 1,000 images of child pornography on five computers connected to Pitts, according to the appellate court opinion.
His release date from federal prison was not available. Phone calls to the US Probation Office were not returned.
Brenda Sanchez was also grateful for the information, but said she was uncomfortable with Pitts living in the area.
"I have a teenage daughter, and there's lots of small children that live around here," Sanchez said. "I definitely have an issue with him living around here. I don't think he should be allowed to live around children."
It remains unclear if and when Pitts' information may be placed the Megan's Law registry.
The state Department of Justice did not ...
UR Staff Writer, Folsom CA
October 5, 2003
Saturday morning, the El Dorado County Sheriff's Department had arrested a former school bus driver, 26-year-old Michael Conan Pitts, in connection with the kidnapping attempt. ... With help from the FBI, El Dorado sheriff's deputies arrested Pitts late Friday at his home in Pollock Pines, where he lives with his parents.
Authorities say Pitts formerly worked as a bus driver for both the Camino Union and Gold Oak Union school districts, neither of which includes the school the 9-year-old attended.
Pitts was a substitute driver for Camino Union about a year ago, said Rob Schamberg, a former superintendent of the school district. Before that, Pitts worked as a full-time school bus driver for the Gold Oak Union School District in the Pleasant Valley area, Schamberg said.
Read the court opinion:
Filed 4/28/06 P. v. Pitts CA3
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
Plaintiff and Respondent,
MICHAEL CONAN PITTS,
Defendant and Appellant.
(Super. Ct. No. P03CRF0549)
A jury convicted defendant Michael Conan Pitts of kidnapping a child under 14 years of age. (Pen. Code, §§ 207, subd. (a), 208, subd. (b).) The trial court sentenced him to an 11 year prison term to run consecutive to an unrelated federal case.
The defendant dragged the victim 16 feet in plain view from a bus stop to his car where he attempted to place her into the trunk of his car. He was unable to do so and the victim escaped. For this reason defendant argues the evidence of asportation was insufficient to support the kidnapping conviction. Defendant also argues the trial court improperly excluded evidence of third party culpability, improperly admitted evidence of prior bad acts, improperly instructed the jury regarding admissions, and improperly instructed the jury regarding the standard of proof for finding he had committed other crimes.
We shall conclude that defendant’s movement of the victim a distance of 16 feet in plain view from a bus stop to his car was not a substantial distance (see Cotton v. Superior Court (1961) 56 Cal.2d 459 [15 feet]), and, because his attempt to place the victim in the trunk of his car failed, the movement did not increase the victim’s risk of harm, decrease the defendant’s chance of detection, or enhance his opportunity to commit additional crimes. Accordingly, the totality of the circumstances show the asportation was not substantial in character, and for that reason the conduct constituted an attempted kidnapping.
We therefore will reverse the judgment of conviction for the kidnapping of a person under the age of 14 and direct that the trial court enter a judgment for the attempted kidnapping of a person under the age of 14 and modify the sentence accordingly. In all other respects we will affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Nine-year-old Mesha G. was waiting alone for her school bus to arrive at its stop in Pollock Pines when she saw a white Ford four-door car drive up and park nearby next to a beauty salon. It was September 30, 2003, around 7:40 a.m. A man with blond or light brown hair and glasses, wearing a large silver watch and blue jeans and a white Tshirt, got out of the car and partially opened his trunk. He went over to the beauty salon and looked in the window. He asked Mesha what time the salon opened, and she told him she did not know. He then went back to his car, opened the trunk all the way, walked back to Mesha, looked both ways up and down the street, then put one hand over Mesha’s mouth, the other under her arm, and began pulling and dragging her over to his car. He tried to force her into the trunk. Mesha noticed the trunk had nothing in it, and the car smelled clean and new. He told her, “[i]f you want to live through this, you’d better be quiet.”
Mesha fought and screamed for help. Her foot hit something, and she managed to slide underneath the car. The man ran to the driver’s side and started the car. Mesha scrambled out from under the car and ran toward her grandmother’s house, which was down the street. She saw the car drive away.
A forensic artist drew a sketch based on Mesha’s description. A sergeant with the sheriff’s department saw the sketch and thought it looked like defendant. The authorities were also interested in defendant as a suspect because he had previously been arrested for possession of child pornography. Mesha said the man who kidnapped her seemed weaker on one side of his body. Defendant cut his left hand off with a band saw when he was younger, requiring several surgeries to reattach the hand. He was unable to lift heavy objects with his left arm. Mesha picked defendant as her kidnapper out of a lineup. As soon as defendant walked into the room in which the lineup was conducted, Mesha focused on him to the exclusion of the other participants. She was visibly shaken and her breath shortened. She said defendant looked just like the kidnapper, and as she was leaving the observation room she told her mother, “Mom, they‘ve got him.”
FBI agent Ken Hittmeier interviewed defendant two days after the incident. Defendant told Hittmeier he left his house around 8:20 a.m. on September 30, and drove to Crystal View, a gas station in Pollock Pines. He arrived at Crystal View around 8:30 a.m., and stayed just long enough to get milk and a newspaper. From there he went to Sacramento to meet his friend, Kurt Lehn. Defendant told Hittmeier he had made prior plans to meet Lehn, but Lehn told Hittmeier he had no prior plans to meet with defendant that day. None of the Crystal View’s 16 surveillance cameras showed defendant or any of his vehicles on September 29 or 30, 2003. It would not be possible for someone to walk into the store, buy something, and drive away without being picked up by one or more of the cameras.
Security videotapes showed defendant using the ATM machine at Western Sierra Bank in Placerville at 8:33 a.m. on September 30, 2003. When Hittmeier interviewed defendant two days after the incident, defendant did not tell Hittmeier he had stopped at the bank. Aside from being recorded on the ATM machine’s video, defendant’s ATM card was confiscated that morning because of a problem with his account.
Defendant owned a 2000 white Ford Taurus. When the car was examined, there was a shoe and a fabric impression on the bumper. The fabric impression was consistent with the impression left by a pair of jeans. The shoe impression was consistent with the size and pattern on the bottom of Mesha’s shoes. There was a white nylon rope in the front center console. The only things recovered from the trunk were two white towels and a gray dashboard cover. Defendant had made plans with David Draganovski to go to Los Angeles on the morning of September 30, 2003. However, defendant never
contacted Draganovski that day. Draganovski attempted to reach defendant by telephone that day, but did not reach him until October 2. When Draganovski asked defendant what had happened, defendant replied, “[w]e have a situation up here. I don’t know if you’ve heard. There was a kidnapping of some girl, and that happened to be my niece[.]” Defendant said he was helping search for the suspect.
Defendant also had an appointment to meet with Terry Scher at Scher’s home on September 30, 2003, between 7:00 and 8:00 a.m. Defendant never showed up. Defendant left a message at 7:00 a.m. on Scher’s answering machine saying he would not be able to meet. Scher spoke with defendant around 8:30 a.m., and defendant told him he was in Sacramento, and had been out on business since 5:00 a.m. Scher testified defendant was not usually home after 7:00 a.m.
Veronica Garcia, who was 18 at the time of trial, testified she lived at a group home where defendant was a counselor when she was 11. Once when she was in the basement of the home wearing her pajamas, defendant told her he would take his pants down if she would do the same. When she refused, he told her he was just joking. On another occasion he asked her to take a shower with him when they were on a camping trip. She said no, and he left. In November 2002, police took three of defendant’s computers into custody. The computers all contained images of child pornography. In late 2003, authorities examined two more computers belonging to defendant. One of the computers had 800 to 1,000 files containing child pornography. There were many images of young girls, aged eight to thirteen, engaged in sexual activity with adults. One video file appeared to involve a young child who was subjected to forcible sexual acts by an adult. On October 5, 2004, defendant pled guilty to three counts of possessing images depicting minors engaged in sexually explicit conduct.
Defendant argues there was insufficient evidence of the asportation element of kidnapping. We agree. A person who forcibly takes another person in this state and carries that person into another country, state, or county, or into another part of the same county is guilty of kidnapping. (§ 207, subd. (a).) The crime of kidnapping requires the prosecution to prove: “(1) a person was unlawfully moved by the use of physical force or fear; (2) the movement was without the person's consent; and (3) the movement of the person was for a substantial distance.” (People v. Jones (2003) 108 Cal.App.4th 455, 462.) Additionally, relevant to this action, section 208, subdivision (b) provides for an increased sentence “[i]f the person kidnapped is under 14 years of age at the time of the commission of the crime[.]” Defendant claims there was insufficient evidence of the third element, i.e., that the movement or asportation was for a substantial distance. The asportation standard applicable to an aggravated kidnapping pursuant to section 208, subdivision (b) as alleged, is the same as the asportation required for simple kidnapping. (People v. Martinez (Martinez) (1999) 20 Cal.4th 225, 232.) Although distance was once the critical
consideration in determining whether the asportation was substantial in character for purposes of simple kidnapping, the Supreme Court has declared that a trier of fact may consider more than the actual distance moved in determining whether the movement was substantial in character if the distance itself is not substantial. (Martinez, supra, at pp. 233, 235-236.) The trier of fact may consider the “totality of the circumstances,” which includes “not only the actual distance the victim is moved, but also such factors as whether that movement increased the risk of harm above that which existed prior to the asportation, decreased the likelihood of detection, and increased both the danger inherent in a victim’s foreseeable attempts to escape and the attacker’s enhanced opportunity to commit additional crimes.” (Id. at p. 237, fn. omitted.) If the asportation did not involve an increased risk of harm or any of the other contextual factors listed above, but the distance the victim was moved alone was substantial in character, the defendant may still be convicted of simple kidnapping. (Martinez, supra, 20 Cal.4th at p. 237.) Conversely, the presence of one or more of the contextual factors is not sufficient to satisfy the asportation requirement where the movement was “only a very short distance.” (Ibid.) Thus, where the actual distance the victim is moved is substantial, the trier of fact is not required to consider any other factors, and where the actual distance is very short, the trier of fact may not consider any other factors. This case falls near the very short end of the spectrum, 16 feet as compared to 15 feet in Cotton v. Superior Court, supra, and at most in between substantial and very short, requiring the trier of fact to look to the totality of the circumstances to determine whether the asportation was substantial in character.
Aggravated kidnapping cases are instructive, because section 209, subdivision (b)(2) requires the movement of the victim to be beyond that which is incidental to the commission of the underlying crime, and which increases the risk of harm to the victim. The factors the jury considers in determining whether there is an increased risk of harm are the same “contextual factors” cited in Martinez, supra. (See People v. Shadden (2001) 93 Cal.App.4th 164, 168 [determination of increased risk of harm requires consideration of whether the movement decreased the likelihood of detection and enhanced the defendant’s opportunity to commit additional crimes]; Martinez, supra, 20 Cal.4th at p. 237.)
Thus, in People v. Shadden, supra, the defendant was convicted of kidnapping to commit rape. (93 Cal.App.4th at p. 167.) The court held that a movement of nine feet from the front counter of a video store to a back room was substantial because it constituted a change in environment. (Ibid.) It held the movement increased the risk of harm to the victim because she was moved from a public area to a place out of public view, which decreased the odds of detection and increased the defendant’s opportunity to injure her. (Id. at pp. 169-170.) Likewise, in People v. Salazar (1995) 33 Cal.App.4th 341, 346, the jury found the defendant guilty of kidnapping for sexual purposes where he dragged the victim 29 feet from a motel hallway through a motel room and into the room’s bathroom. The court compared the victim’s physical location before and after the asportation, noting that before the asportation the victim was on an exterior walkway overlooking a parking lot and a city street. (Id. at p. 348.) The court concluded the victim’s location after the asportation resulted in an increased risk of harm because before she was moved she was potentially visible to and within hearing distance of others, whereas after the asportation the likelihood of anyone detecting her kidnapper decreased dramatically. (Ibid.) She became more vulnerable because the defendant had an opportunity to commit additional crimes. (Ibid.)
In People v. Jones (1999) 75 Cal.App.4th 616, 628-629, the defendant was convicted of kidnapping for robbery (§ 209, subd. (b)) when he forced the victim to walk about 40 feet entirely within a high school parking lot. The defendant then forced the victim inside her car. (Id. at p. 622.) When the defendant followed the victim into the car on the driver’s side, the victim was able to move to the passenger side of the car, open the door, and escape. (Ibid.) The defendant argued the evidence was insufficient to support a finding his movement of the victim satisfied the asportation requirements of kidnapping for robbery. (People v. Jones, supra, 75 Cal.App.4th at p. 628.) The defendant argued none of the factors cited in Martinez, supra, were present because the victim was moved only 40 feet entirely within a parking lot, which movement actually made the victim’s escape possible, and which did not give the defendant the opportunity to commit additional crimes. (Id. at p. 629.)
The court disagreed. It stated that even if the movement itself did not substantially increase the risk of harm to the victim, the “critical factor which substantially increased the risk of harm” was that once the defendant pushed the victim into the car, she was no longer in public view as she had been when she was in plain sight in the parking lot. (People v. Jones, supra, 75 Cal.App.4th at pp. 629-630.)
In this case, the record showed defendant dragged Mesha from the bus stop to his car, a distance of about 16 feet. The character of Mesha’s environment before and after the asportation did not change. There was no evidence defendant’s car was in a more secluded location, or that it was hidden from view. Unlike People v. Jones, supra, 75 Cal.App.4th 616, defendant was never able to take Mesha from public view because she was successful in escaping before he could hide her in the trunk of his car. Defendant made an attempt to kidnap Mesha, but was unsuccessful. The People argue defendant’s calculated timing, willingness to use force, and positioning of his body while dragging Mesha increased the risk of harm to her. However, neither the defendant’s timing, use of force, nor positioning is material in determining what constitutes a substantial distance. Instead, we look to whether the victim’s environment was changed by the asportation. (Martinez, supra, 20 Cal.4th at p. 236.) There was no change in environment here. The People also claim Mesha was less visible while underneath the car, but defendant did not put Mesha under the car, thus this was not part of the asportation. She went under the car of her own volition in order to escape defendant. Even if she was less visible under the car, her relative safety was greater under the car where defendant was unable to reach her, as evidenced by the fact that she was able to escape after she went under the car.
Our conclusion that the asportation was insufficient for the crime of kidnapping does not eliminate the crime of attempted kidnapping. (§§ 664, 207.) The jury was instructed on the elements of attempted kidnapping as a lesser included crime to kidnapping. Section 1181, subdivision 6 authorizes this court to reduce a conviction to a lesser included offense where the evidence shows the defendant is not guilty of the greater offense, but is guilty of the lesser offense.
We shall modify the judgment of conviction to reflect the offense of attempted kidnapping, and shall modify the sentence accordingly.
Third Party Culpability Evidence
Defendant sought to introduce evidence that a third party was culpable of the crime. He sought to introduce evidence that Kevin Hurtado, a section 290 registrant, was last registered as living in close proximity to the crime scene. In the opinion of defense counsel, Mr. Hurtado resembled the forensic sketch of Mesha’s abductor. Defendant also sought to introduce the testimony of Julie Isherwood, a Pollock Pines resident who contacted law enforcement four days prior to the instant offense, to complain that a white male had been watching her four-year-old daughter as she played in her yard. Isherwood was asked to participate in the same lineup conducted for Mesha, but did not identify defendant. The trial court denied defendant’s motion to introduce evidence a third party was responsible for the crime. “‘To be admissible, the third-party evidence need not show “substantial proof of a probability” that the third person committed the act; it need only be capable of raising a reasonable doubt of defendant’s guilt. At the same time, we do not require that any evidence, however remote, must be admitted to show a third party’s possible culpability. . . . [E]vidence of mere motive or opportunity to commit the crime in another person, without more, will not suffice to raise a reasonable doubt about a defendant’s guilt: there must be direct or circumstantial evidence linking the third person to the actual perpetration of the crime.’ [Citation.]” (People v. Lewis (2001) 26 Cal.4th 334, 372-373.) In this case, there was no “direct or circumstantial evidence linking the third person to the actual perpetration of the crime.” There was no evidence Hurtado was in Pollock Pines on the date of the crime, or that he in fact still lived in Pollock Pines. The person Isherwood saw watching her daughter never actually committed any crime. Although the person Isherwood saw, like defendant, was a clean-shaven white male approximately 35 to 40 years old, wearing a white t-shirt, this description is fairly generic. The evidence was insufficient to raise a reasonable doubt about defendant’s guilt.
Defendant argues it was an abuse of discretion for the trial court to exclude the evidence because its probative value was not outweighed by the risk of undue delay, prejudice, or confusion. (Evid. Code, § 352.) We disagree. “‘[C]ourts should simply treat third-party culpability evidence like any other evidence: if relevant it is admissible ([Evid. Code,] § 350) unless its probative value is substantially outweighed by the risk of undue delay, prejudice, or confusion ([Evid. Code,] § 352).’ [Citation.] A trial court’s discretionary ruling under Evidence Code section 352 will not be disturbed on appeal absent an abuse of discretion. [Citation.]” (People v. Lewis, supra, 26 Cal.4th at pp. 372-373.) Even though the evidence of third party culpability was relevant to defendant’s defense that someone besides he committed the crime, it was not particularly probative, since there was no evidence linking the third persons to the actual perpetration of the crime. On the other hand, the evidence against defendant was substantial. The victim identified him and his car, and remembered her attacker was weaker on one side of his body, which was consistent with defendant’s weakness because of an earlier accident. A shoe print consistent with the size and pattern of the shoes Mesha was wearing the day of the attack was found on the bumper of defendant’s car.
The trial court reasonably found that inclusion of defendant’s third party culpability evidence and any evidence the prosecution would introduce in rebuttal, would consume undue time and confuse the jury. Given the weak probative nature of the evidence, the trial court did not abuse its discretion in excluding it.
Prior Bad Acts
Defendant argues the trial court erred in allowing the jury to hear evidence of his conviction for possession of child pornography and his suggestive comments to Veronica Garcia. Defendant argues the prior incidents did not have the requisite similarity to be introduced as evidence of identity or intent, and the evidence was highly prejudicial. He claims the tendency of the evidence to prove motive was insufficient because of the potential for prejudice. Evidence Code section 1101 provides that evidence of specific instances of a person’s conduct are inadmissible if offered to prove that person’s conduct on a specified occasion. However, such evidence is admissible to prove some fact other than the person’s disposition to commit a crime or other act. For example, such evidence is admissible to prove “motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, or whether a defendant in a prosecution for an unlawful sexual act or attempted unlawful sexual act did not reasonably and in good faith believe that the victim consented[.]” (Evid. Code, § 1101, subd. (b).)
In this case, the trial court admitted the evidence because of its tendency to prove the defendant’s motive, which the court found circumstantially proved the issue of identity. The court found, “the jury may be asking themselves why would your client do this in the face of your claim, . . . that he wasn’t the one that did it, that he has an alibi or the like. And . . . the jury is going to want to know why would he do this. [¶] And the evidence of his abnormal preoccupation with child pornography and engaging in lewd conduct with this other young lady about the same age is evidence that would explain why he may have kidnapped the victim in this case. [¶] That, in turn, would go to show his identity. You’re willing to claim this wasn’t the man that did it. And this evidence showing that he did have a motive for doing this, . . . would be admissible in my view on the issue of motive and identity in this case.”
The trial court did not allow the prosecutor to put any of the pornography photographs recovered from defendant’s computer into evidence, stating: “If those come in, then we might as well not have a trial here, because the jury will convict your client, Mr. Clark [defense counsel], based upon those photos alone. And it is just extremely prejudicial.” Defendant argues the evidence was admitted for the purpose of proving identity and intent. Citing People v. Ewoldt (1994) 7 Cal.4th 380, he claims the evidence was not sufficiently similar. Ewoldt, supra, stated that where other crimes evidence is admitted to prove identity, “the uncharged misconduct and the charged offense must share common features that are sufficiently distinctive so as to support the inference that the same person committed both acts. [Citation.] ‘The pattern and characteristics of the crimes must be so unusual and distinctive as to be like a signature.’ [Citation.]” (Ewoldt, supra, at p. 403.) “In order to be admissible to prove intent, the uncharged misconduct must be sufficiently similar to support the inference that the defendant ‘“probably harbor[ed] the same intent in each instance.” [Citations.]’ [Citation.]” (Ewoldt, supra, 7 Cal.4th at p. 402.)
However, when the prior acts evidence is used to show motive, the misconduct need not be similar. For example, in People v. Barnett (1998) 17 Cal.4th 1044, 1070, 1073-1075, 1117-1118, the Supreme Court approved the admission of evidence in a torture and murder by stabbing case that the defendant had previously threatened the murder victim’s friend with a rifle and punched her in the face. Because the defendant’s attack on the friend precipitated the breakdown of the defendant’s relationship with the murder victim, the court held the prior misconduct was admissible to prove motive. (Id. at pp. 1118-1119.) Also, in People v. Kelley (1997) 52 Cal.App.4th 568, the court held it was appropriate to admit evidence the defendant had been convicted of lewd conduct with a child, in a case where the defendant was accused of stalking the same victim when she was an adult. The court held Evidence Code section 1101 allows other acts evidence to show motive, and the prior conviction, though not similar to the stalking, was relevant to show defendant’s motive for placing the victim in fear. (Id. at p. 579.) In addition, the court pointed out that the evidence was not prejudicial precisely because the two cases involved different types of conduct. (Ibid.)
Finally, in a trial for the commission of robbery and murder, this court held evidence was admissible that the defendant had been writing bad checks, because it was relevant to prove the motive for robbery. (People v. Chapman (1968) 261 Cal.App.2d 149, 177.) In none of these cases were the prior bad acts similar to the conduct for which the defendants were being tried, but in all cases the prior acts were probative of the defendants’ motive. We disagree with defendant’s contention the trial court should have excluded the evidence because its probative value was outweighed by its potential for prejudice. Neither the possession of child pornography nor the making of inappropriate suggestions was necessarily more inflammatory than the kidnapping charge for which defendant was being tried. The jury did not see any of the pornography, nor were the pictures described in any detail. The trial court did not abuse its discretion in allowing the evidence.
CALJIC No. 2.71
CALJIC No. 2.71 was given to the jury as follows:
“An admission is a statement made by a defendant which does not by itself acknowledge his guilt of the crimes for which the defendant is on trial, but which statement tends to prove his guilt when considered with the rest of the evidence.
You are the exclusive judges as to whether the defendant made an admission, and if so, whether that statement is true in whole or in part.”
For reasons unknown, the trial court omitted from the instruction the final portion of CALJIC No. 2.71, which provides: “Evidence of an oral admission of [a] [the] defendant not made in court should be viewed with caution.” Citing three statements he claims could have been admissions, defendant argues the trial court’s failure to give the cautionary part of the instruction was prejudicial error. The alleged admissions are defendant’s statements: (1) during his taped interview that he stopped at the Crystal View Station the morning of the crime; (2) to Scher that he was in Sacramento shortly after the attempted kidnapping; and (3) to Draganovski that he had been searching for his kidnapped niece. We shall conclude that any error was harmless.
A trial court is required to instruct sua sponte that evidence of oral admissions must be viewed with caution. (People v. Beagle (1972) 6 Cal.3d 441, 455, superseded by statute on a different point.) However, the cautionary instruction is inapplicable to tape recorded statements. (People v. Hines (1964) 61 Cal.2d 164, 173 [disapproved on another ground in People v. Murtishaw (1981) 29 Cal.3d 733, 774, fn. 40, itself superseded by statute on another ground].) Thus, there was no error as to defendant’s taped interview statement that he was at the Crystal View Station the morning of the attempted kidnapping.
Omission of the cautionary instruction is not reversible error, “if upon a reweighing of the evidence it does not appear reasonably probable that a result more favorable to defendant would have been reached in the absence of the error.” (People v. Beagle, supra, 6 Cal.3d at p. 455.) “The purpose of the cautionary instruction is to assist the jury in determining if the statement was in fact made.” (Id. at p. 456.) Defendant admitted on the stand that he talked to Scher on the morning of the kidnapping and told him he “was headed into Sacratomato.” There was no doubt defendant told Scher he could not meet with him the morning of the attempted kidnapping because he had business in Sacramento. The only issue was whether defendant told Scher he was in Sacramento when Scher spoke to him at 8:30 a.m., or whether he told Scher he was going to Sacramento. In the case of either statement, the instruction as read was not prejudicial, because defendant’s lies had other purposes than to cover up his guilt in the attempted kidnapping. The jury could have reasonably assumed that when defendant spoke to Draganovski on October 2, he had already been interviewed by the authorities and had his car searched. Draganovski testified he could not remember what time he spoke with defendant. The jury could have reasonably concluded the reason for defendant’s lie was that he did not want to admit to Draganovski that he might be implicated in a child’s kidnapping. Defendant owed Scher money, and was meeting Scher on the morning of September 30 for the purpose of paying Scher what he owed him. Scher lived in Pollock Pines. If defendant had told Scher he was in Pollock Pines when he was on the phone with him, Scher might have insisted defendant pay him immediately. The jury may have concluded defendant did not have the money to pay Scher (especially in light of the testimony his ATM card was confiscated that day because of problems with his account) and was merely buying time by telling Scher he was out of town.
Defendant’s statements were not prejudicial because they did not necessarily implicate him in the attempted kidnapping. Considering the nature and strength of the evidence against defendant, and the likelihood the jury would not have believed defendant lied to Scher and Draganovski because he was guilty of the attempted kidnapping, it is not reasonably probable that the result would have been more favorable to defendant had the jury been instructed to view the two statements with caution.
CALJIC No. 2.50.1
Defendant argues the trial court erred by instructing the jury pursuant to CALJIC No. 2.50.1 that the prosecution’s burden of proving the prior crimes was by a preponderance of the evidence. Defendant claims the instruction “allowed the jury to find facts constituting an element of the charged offense by using a standard of proof lower than the beyond-a-reasonable-doubt standard, [thus] the instruction violated [defendant’s] right to due process of law.” Defendant concedes the Supreme Court has rejected this argument. (See People v. Reliford (2003) 29 Cal.4th 1007, 1015-1016; People v. Carter (2005) 36 Cal.4th 1114, 1188; People v. Medina (1995) 11 Cal.4th 694, 763- 764; People v. Carpenter (1997) 15 Cal.4th 312, 383. As defendant also recognizes, this authority is binding on this court. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
Defendant argues the judgment must be reversed because the evidence was close as to whether defendant was the perpetrator, so that any substantial error must be deemed prejudicial, and because the verdict was influenced by the cumulative effect of several errors. We disagree with defendant’s characterization that the evidence of his guilt was “close.” We find the evidence substantial and convincing that defendant was the perpetrator. As to defendant’s argument that cumulative errors influenced the verdict, we have not found the trial so infected with error that it could have influenced the verdict. We are correcting the error in convicting defendant of kidnapping, rather than attempted kidnapping. The only other error was in omitting language from CALJIC No. 2.71, an error that was harmless by any measure.
The judgment of conviction of kidnapping in violation of Penal Code sections 207, subdivision (a) and 208, subdivision (b) is reversed and the trial court is ordered to enter a judgment of attempted kidnapping in violation of Penal Code sections 664/207 and 208. The trial court is instructed to modify the abstract of judgment to reflect a sentence of five years and six months for the violation of Penal Code sections 664/207, subdivision (a) and 208, subdivision (b) (one-half the upper term of 11 years) to run consecutive to an unrelated federal case. In all other respects the judgment is affirmed.
BLEASE , Acting P. J.
MORRISON , J.