People v. Barker

Opinion

The defendant appeals from a conviction in the Stanislaus County Superior Court of burglary (Pen. Code, § 459), robbery (Pen. Code, § 211), and mayhem (Pen. Code, § 203). Each count alleged that the defendant inflicted great bodily injury within the meaning of Penal Code section 12022.7 which was found true by the jury. Also, the information alleged two prior serious felony convictions within the meaning of Penal Code section 667, and a prior prison term within the meaning of Penal Code section 667.5, subdivision (b), which the defendant admitted prior to trial.

Appellant was originally sentenced to thirteen years, four months and remanded back to court approximately five weeks later on order of the superior court for resentencing on the ground that appellant had previously been incorrectly sentenced. He was resentenced to the term of twenty years, computed as follows: six years (the upper base term for burglary), three years (enhancement for great bodily injury), five years (prior robbery conviction), one year (prior prison term), and five years (prior burglary conviction), all to run consecutively. The previously imposed sentences with respect to counts II and III, together with their respective enhancements, were confirmed by the court and stayed, such stay to become permanent upon appellant’s successful completion of the principal term. The trial court also imposed a restitution order of $6,650 and a “fine” of $1,000 under Government Code section 13967.

Appellant alleges error both during the trial and at sentencing.

Statement of the Case

On August 10, 1983, appellant, his girlfriend Vicki, Leland Nicholson (Nicholson), and appellant’s sister Marilyn Lozano (Lozano) went to Grandma’s Bar on Herndon Road in Modesto. There they drank and played pool for approximately 45 minutes. Appellant, Vicki and Lozano left the bar for about five minutes while Lozano was taken to the scene of the crime and dropped off. Appellant and Vicki returned to the bar. Prior to leaving them, Lozano stated she was going to “turn a trick.” About 20 to 30 minutes after returning to the bar, appellant received a phone call and after taking

Lozano had previously called and asked to spend some time at Ralph Taylor’s house. Taylor was an 80-year-old widower and acquaintance of Lozano’s. During the six months he had known her she had visited his home on numerous occasions. After being dropped off at Taylor’s by appellant and Vicki, Lozano proceeded to engage Taylor in activities calculated to facilitate the crime. Moving to a bedroom to watch a better television set, Lozano raised the volume even over Taylor’s protests; the air conditioner was turned on, and the front door opened (although Taylor insisted the night chain be fastened). With the house now less than secure and under cover of the noise level, Lozano left to make sure the front door was opened and returned within 5 to 10 minutes. Lozano then enticed Taylor into some form of sexual activity which resulted in him being tied up, hands and feet together, and lying on the bed.

With the 80-year-old victim helpless, appellant entered the home by climbing through a window over the sink. Taylor testified to being brutally beaten, kicked and struck with a beer bottle.

Shortly after appellant had entered Taylor’s home, Lozano came running out the front door screaming for Nicholson. Following Lozano into the house, Nicholson heard an old man screaming and, upon entering the bedroom, observed appellant kicking Taylor as he lay on the floor. The only light on in the bedroom was the television, and appellant was shouting that he wanted Taylor’s wallet. Appellant was also holding a gun against Taylor. When Nicholson asked appellant what was going on, appellant stated he wanted the combination to the safe. Lozano showed Nicholson where Taylor’s safe was, and Nicholson picked it up and carried it out to the car which Lozano had backed up to the house. While appellant was kicking and striking Taylor, Taylor was lying on the floor moaning and saying, “Give me a minute”; and “Let me think where the wallet is at.” Nicholson came back into the bedroom and said to appellant, “Leave him alone”; and “Let’s go.” After Nicholson told appellant he had the safe and said “Let’s get out of here,” appellant continued to kick Taylor in the face. Lozano, Nicholson and appellant then left the house and drove off with Vicki in Lozano’s car. As they were driving away, appellant swore angrily at Lozano and told her she was stupid and questioned why she had failed to open the front door.

The portable safe taken from Taylor’s home contained, in addition to various papers, some $300 to $400 cash. Taylor had kept the safe in the second bedroom of his house. The lock on this bedroom door, which Taylor ordinarily kept locked, had been pried loose.

The crime scene investigation corroborated Taylor’s version of the attack and turned up appellant’s right index fingerprint on the neck of a broken beer bottle. After being admitted to the hospital and still in pain, Taylor attempted to identify those responsible. He was unable to identify a photograph of Lozano and incorrectly identified Kathy Buchanan, Lozano’s sister, as Lozano’s mother. Taylor did describe Lozano, who he knew as Marilyn, as a female Caucasian, approximately 30 years, 5 feet 7 inches to 5 feet 9 inches, 125-135 pounds, and with blond hair. Lozano, who is a blond Caucasian, described herself as 5 feet 6 inches tall and weighing 130 pounds. Taylor correctly identified Lozano out of a photographic lineup on August 24, 1983.

Neighbors supplied other details of the crime and clues to the identity of Taylor’s attackers.

On September 8,1983, appellant, in custody in Shasta County for robbery and kidnapping, was interviewed by Detective Mac Reece (Reece), and after a waiver of Miranda rights, confessed to his role in the beating and robbery of Taylor.

Appellant’s defense essentially claimed he was innocent but had confessed due to threats and pressure made indirectly by Nicholson and out of concern for his sister (Lozano) and Vicki.

The issues raised on appeal are (1) whether the appellant’s confession was voluntary; (2) whether the trial court committed reversible error in instructing the jury on aiding and abetting; and (3) whether the appellant was properly sentenced, including the imposition of a restitution order of $6,650 and a “fine” of $1,000.

The Voluntariness of Appellant’s Confession

On September 8, 1983, Stanislaus County Sheriff’s Detective Reece and Redding Police Detective Craig Wooden (Wooden) interviewed appellant at the Shasta County Sheriff’s Department in Redding, California. Appellant was in custody for a kidnapping and robbery in Shasta County.

Appellant contends it is the function of this court to “determine independently whether the confession was voluntary, recognizing that the burden is on the state to prove, beyond a reasonable doubt, that the confession was given freely without any previous inducement, intimidation or threat.” (Citing People v. Jimenez, supra, 21 Cal.3d at pp. 600, 609.) In fact, the duty of the reviewing court, as explained by the Supreme Court in Jimenez, is: . .to examine the uncontradicted facts to determine independently whether the trial court’s conclusion of voluntariness was properly found. ... In exercising this function the court recognizes that the burden is on the prosecution to show that a confession was voluntarily given without previous inducement, intimidation or threat.... [Citations.]” . . .’ With respect to conflicting testimony, of course, ‘. . . we accept that version of events which is most favorable to the People, to the extent that it is supported by the record.’ [Citations.]” (Id. at p. 609.)

Whether a confession is voluntary and therefore admissible into evidence is a matter to be determined by the trial court outside the presence of the jury, as provided in Evidence Code section 405. (People v. Jimenez, supra, 21 Cal.3d at p. 604.)

The trial court below, after listening to the conflicting testimony of appellant and Detective Reece, and after reading the transcript of appellant’s confession and listening to the tape recording, decided to accept the testimony of Detective Reece that there were no promises or discussions had with appellant prior to the tape recorded statement and confession. Furthermore, the trial court determined that the evidence established that appellant initiated the proposed agreement to confess to the charges in the instant case if no charges would be filed against his girlfriend. The court expressly stated that the prosecution had established the voluntariness of the statement “beyond a reasonable doubt.”

We have previously stated that “[i]n determining the question of the voluntariness of appellant’s statements, this court must consider the entire record below.” (People v. Adams (1983) 143 Cal.App.3d 970 , 984

In the case in bar, the testimony of Detective Reece was contradicted by the testimony of appellant during the Evidence Code section 402 hearing. We must accept the trial court’s determination to believe the testimony of Detective Reece that no promises were made or deals offered to appellant prior to his tape recorded statement. The record does not contain evidence “so improbable as to be entirely unworthy of belief.” (People v. Jimenez, supra, 21 Cal.3d at p. 607.)

With respect to the evidence of appellant’s tape-recorded statement of confession to Detectives Reece and Wooden, appellant suggests that promises or agreements made with respect to whether charges would be filed against appellant’s girlfriend render appellant’s confession invalid. “A threat by police to arrest or punish a close relative, or a promise to free the relative in exchange for a confession, may render an admission invalid.” (People v. Steger (1976) 16 Cal.3d 539 , 550 [ 128 Cal.Rptr. 161 , 546 P.2d 665 , 83 A.L.R.3d 1206 ]; People v. Trout (I960) 54 Cal.2d 576 , 584-585 [ 6 Cal.Rptr. 759 , 354 P.2d 231 , 80 A.L.R.2d 1418 ].) In the instant case, Detective Reece informed appellant that he did not yet have a warrant on appellant’s girlfriend and did not have sufficient evidence to place her at the scene of the crime and thereby implicate her. Although appellant suggests the failure of Detective Reece to expressly tell appellant that he did not intend to charge appellant’s girlfriend constitutes an implied threat to so charge her, a review of the record indicates that such a construction in this context is improbable. Detective Reece testified he did not tell appellant he would arrest appellant’s girlfriend if appellant did not cooperate.

Appellant also relies on United States v. McShane (9th Cir. 1972) 462 F.2d 5 in which the defendant was convicted of various firearms possession charges. The defendant contended the authorities coerced his confession by playing upon defendant’s emotional attachment to his girlfriend. Defendant was arrested at his girlfriend’s apartment and the authorities took defendant’s girlfriend to the police station for questioning. The authorities questioned

The instant case simply does not rise to the level of the hypothetical facts contained in the McShane dicta. Nor is it susceptible to the interpretation that Detectives Reece and Wooden bargained with appellant to obtain his confession in exchange for appellant’s girlfriend’s release. Detective Reece made clear the fact that he had no warrant for Vicki’s arrest and did not even have sufficient evidence to implicate her in the crime.

It is true that Detective Reece did agree to avoid charging appellant’s girlfriend in exchange for appellant’s truthful testimony, after appellant had initiated the subject of leniency. However, such an agreement does not necessarily render a subsequent confession inadmissible where the subject of leniency for friends or relatives was initiated by the suspect rather than the authorities. (See People v. Kendrick (1961) 56 Cal.2d 71 , 84-85 [ 14 Cal.Rptr. 13 , 363 P.2d 13 ] [court determined no previous inducement by detectives and no promises “other than to carry the matter of possible release of defendant’s friends to higher authorities”].) “The fact, alone, that the principal motive for a confession is that it will probably result in the exoneration of another person who is suspected of complicity in the offense does not render the confession involuntary.” (People v. Abbott (1958) 156 Cal.App.2d 601 , 605 [ 319 P.2d 664 ].)

Appellant also relies on appellant’s mental condition at the time of the interrogation. Among the circumstances to be considered as part of the “totality of the circumstances” are the mental capacity and intelligence

With respect to the contention that appellant was in “severe pain” from his bullet wound, assuming that the statements by appellant to Detectives Reece and Wooden are uncontradicted, an independent examination simply does not lead to the conclusion that appellant was suffering from pain severe enough to impair appellant’s ability to make a voluntary confession. Furthermore, the record contains arguably contradictory evidence in the testimony of Detective Reece that the wound appeared “healed over.”

It is altogether clear that the trial court applied the proper standard to the facts and correctly found the confession voluntary.

Beeman Error and the Standard of Prejudice

Since the evidence suggested that Lozano bound Taylor before appellant entered the house and either personally or in concert with Nicholson committed the robbery and mayhem, the prosecution asked that the jury be instructed concerning appellant’s liability as an aider and abettor. To this end, the trial court instructed the jury pursuant to CALJIC Nos. 3.00, 3.01 and 3.02. These instructions have been held to inadequately inform the jury of the need to establish the aider/abettor’s intent in addition to knowledge and aid. (People v. Beeman (1984) 35 Cal.3d 547 [ 199 Cal.Rptr. 60 , 674 P.2d 1318 ].)

In People v. Beeman, supra, the Supreme Court was faced with the issue of whether the standard California Jury Instructions, CALJIC Nos. 3.00 and 3.01, adequately informed the jury in that case of the criminal intent required to convict a defendant as an aider and abettor of the crimes of, inter alia, robbery, burglary and assault with intent to commit a felony. (35 Cal.3d at pp. 550-551.) On the issue of intent, the Supreme Court concluded: “. . . 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 of either committing, or of encouraging or facilitating commission of, the offense. [Citations omitted.]

Assuming that the jury understood and followed the aforementioned instructions , it is clear that the jury specifically found that appellant personally and intentionally inflicted great bodily injury upon victim Taylor during the commission of the burglary, robbery and mayhem charged. We find that no juror could reasonably have concluded appellant personally and intentionally inflicted great bodily injury upon Taylor without also concluding that appellant personally intended to facilitate the burglary, robbery and mayhem.

In People v. Sedeno (1974) 10 Cal.3d 703 , at page 721 [ 112 Cal.Rptr. 1 , 518 P.2d 913 ], the case from which Garcia derived its third exception, the Supreme Court stated: “Thus, in some circumstances it is possible to determine that although an instruction on a lesser included offense was erroneously omitted, the factual question posed by the omitted instruction was necessarily resolved adversely to the defendant under other, properly given instructions.”

In the instant case, the defendant was convicted of burglary, robbery and mayhem. To find him guilty, even given the improper instruction on intent, the jury must necessarily have concluded that the defendant knew of these crimes in advance or at least while he assisted in their commission. It is nearly impossible that the jury could have determined that appellant had knowledge of the criminal purpose of Lozano and/or Nicholson, as well as the specific intent to personally inflict great bodily injury on Taylor, but also lacked the intent to further their criminal purpose.

The Beeman error in this case may also be deemed harmless by applying the fourth Garcia exception. The trial court in Leach committed Beeman error by instructing the jury on aiding and abetting in the language of former CALJIC No. 3.01. The Supreme Court adopted, as the standard of prejudice, the Garcia reversal per se standard, subject to the four Garcia exceptions. However, the Supreme Court modified the fourth exception, stating: “ ‘[t]his difference [between Carlos error and Beeman error] justifies an adaptation, in the Beeman context, of the Cantrell-Thornton exception retained in Garcia: the parties at least recognize that defendant’s state of

The court in Leach relied specifically on the fact the jury made a special finding that the defendant had personally used a deadly or dangerous weapon in the commission of the robbery. In the view of the Supreme Court, this fact made it clear that the jury must have rejected the defendant’s version of the incident. (41 Cal.3d at p. 105.)

The modified Cantrell-Thornton exception applied by Leach to Beeman error is no more than the application of a two-part test, requiring that the requisite intent be established as a matter of law and that there be no evidence worthy of consideration to the contrary, together with an assumption that the defendant has presented evidence and made a record equal to that which he would have made had he known the more precise Beeman instruction should be given. (People v. Cantrell (1973) 8 Cal.3d 672 , 685 [ 105 Cal.Rptr. 792 , 504 P.2d 1256 ]; People v. Thornton (1974) 11 Cal.3d 738 , 768-769 [ 114 Cal.Rptr. 467 , 523 P.2d 267 ]; People v. Leach, supra, 41 Cal.3d at p. 105.)

The evidence presented by the prosecution in the instant case pointed strongly to appellant’s role as the principal perpetrator of the robbery and violent attack on Taylor. Appellant’s fingerprint was found on the broken neck of a beer bottle which was likely the instrument used to attack Taylor. Nicholson testified of the fact that appellant savagely beat Taylor. Appellant gave a statement to the authorities confessing his responsibility in the crimes. Appellant’s defense consisted primarily of attempts to impeach Nicholson and to establish the involuntary character of appellant’s confession. Appellant also alibied that he had spent the evening of August 10, 1983, with his wife at another location in Merced, and denied any responsibility for the crimes committed against Taylor, The fact that the jury made the specific finding that appellant had personally inflicted great bodily injury on Taylor during the events in question, together with the fact that the jury necessarily resolved adversely to appellant the issue of appellant’s knowledge of the criminal purpose of his cohorts by finding him guilty of burglary and robbery, amply supports the conclusion that “this is a case in which the Beeman

Therefore, by sound application of either the third or fourth Garcia exceptions to Beeman error in this case, our conclusion is that such error is harmless and does not require reversal.

Sentencing Errors

Appellant’s final contention concerns allegations of various sentencing errors. As previously stated, the court sentenced appellant to prison for twenty years by adding to the aggravated upper base term of six years for burglary, three years for the great bodily injury enhancement, five years each for separate prior burglary and robbery felony convictions, and one year for a prior forgery (Pen. Code, § 475) felony conviction, all added consecutively.

In imposing its original sentence the court set forth the following reasons:

“[The Court]: All right. The Court finds that the base term on Count I, a violation of Section 459 of the Penal Code, burglary of the first degree, shall be the upper term of six years because of the fact, as stated under Rule 421(a)(3), Mr. Taylor was a particularly vulnerable victim. Under 421(a)(5), Mr. Barker occupied a position of leadership in the offense. Under 421(a)(8), the evidence indicated that the offenses were committed with planning and premeditation. Under 421(a)(12), Mr. Barker took advantage of a position of trust, that being Mr. Taylor’s trust in the co-Defendant Marilyn Lozano. Under 421 (b)(1), Mr. Barker’s pattern of violent conduct indicates that he’s a danger to society, and in that the Court relates— refers to the prior robbery conviction suffered by Mr. Barker, also a prior what the Court believes is a kidnapping and robbery conviction within the last year in Shasta County, and also because under 421(b)(3)—strike that. The Court finds that under Rule 423 there are no mitigating factors in this matter.

“The Court finds that under 12022.7 of the California Penal Code, an enhancement of three years shall be added because of the fact that Mr.

Unlike the situation in Hurley, the trial court in the instant case relied upon the fact of appellant’s prior robbery conviction both to justify application of the aggravating circumstance of appellant’s pattern of violent conduct and to enhance for a prior felony conviction under Penal Code section 667. In People v. Roberson (1978) 81 Cal.App.3d 890 [ 146 Cal.Rptr. 777 ], the defendant was sentenced to the upper base term in part because of defendant’s prior convictions indicating excessive criminality and a pattern of violent conduct. Two of the prior convictions were used as sentence enhancements. The court concluded, however, that the “remaining three [prior convictions] were sufficient to show a pattern of violent conduct and excessive criminality in support of an aggravated sentence” and therefore the sentencing court did not impermissibly make dual use of facts. (81 Cal.App.3d at p. 894.) Unlike the instant case, the sentencing court in Roberson did not specify which prior conviction it was relying upon to find excessive criminality and a pattern of violent conduct. By inference, the opinion in Roberson supports the view that reliance by a sentencing court on a specific prior conviction to find a circumstance in aggravation, while also relying on the same prior conviction to impose a sentence enhancement, is improper dual use of facts.

Appellant’s next contention is that the trial court erred in failing to strike the separate enhancements for personal infliction of great bodily injury with respect to counts II and III, pursuant to Penal Code section 654. Because the enhancements resulted from the infliction of injury to one victim during a single course of conduct, appellant contends the court should have stricken rather than merely stayed the enhancements.

Penal Code section 654 provides: “An act or omission which is made punishable in different ways by different provisions of this code may be punished under either of such provisions, but in no case can it be punished under more than one; ...”

Unless the act constituted a crime against more than one person, Penal Code section 654 prohibits multiple punishment for the same act. (People v. Miller (1977) 18 Cal.3d 873 , 885, 887 [ 135 Cal.Rptr. 654 , 558 P.2d 552 ].) This principle has been applied to prohibit the imposition of multiple enhancements for a single act of infliction of great bodily injury upon one victim. (People v. Moringlane (1982) 127 Cal.App.3d 811 , 817 [ 179 Cal.Rptr. 726 ].)

In each of the cases cited by appellant in support of the view that the enhancements in violation of Penal Code section 654 must be stricken, the trial court had not stayed any of the improper additional enhancements. (See In re Culbreth (1976) 17 Cal.3d 330 [ 130 Cal.Rptr. 719 , 551 P.2d 23 ]; People v. Moringlane, supra, 127 Cal.App.3d 811 ; see also People v. Hopkins (1985) 167 Cal.App.3d 110 [ 212 Cal.Rptr. 888 ].) It must be remembered that the purpose of Penal Code section 654 is to prohibit double

The judgment and prison sentence are affirmed, and the restitution fine order is vacated and remanded to the trial court for an appropriate determination, consistent with the views expressed herein, under the former version of section 13967 of the Government Code.

Franson, Acting P. J., and Martin, J., concurred.