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Name: People v. Delgado
Case #: B220174
Court: CA Court of Appeal
District 2 DCA
Division: 1
Opinion Date: 03/29/2011
Subsequent History: 6/29/11 rev. granted

The instruction on a charge of kidnapping to commit robbery required instructions on aiding and abetting because Delgado was not the one who drove the car which transported the kidnapping victim. Delgado ushered the victim to a car where the driver endorsed his invitation to go drinking or to accept their ride. The driver locked the doors to keep the victim from escaping and continued driving while the victim was stabbed, robbed, and then pushed from the car. Since Delgado could not be convicted of kidnapping as the perpetrator, he could have been found guilty on a theory of aiding and abetting. The failure to instruct was error which was harmless beyond a reasonable doubt.
There was no error in failing to instruct on false imprisonment as a lesser included offense. The only element of kidnapping that is not required for false imprisonment is the asportation of the victim. There was substantial evidence that the victim was driven a substantial distance and there was no evidence from which the jury could conclude that Delgado restrained the victim without also finding that it constituted kidnapping. Also, the trial court raised the issue of the lesser offense instruction and the defense counsel agreed no such instruction was in order.