IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (El Dorado)
August 8, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
JOSHUA ERAIN BARBER, DEFENDANT AND APPELLANT.
(Super. Ct. No. 09CRF0284)
The opinion of the court was delivered by: Murray , J.
P. v. Barber CA3
Received for posting on 8/16/11
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Defendant Joshua Erain Barber was convicted after a jury trial of torture (count I; Pen. Code, § 206),*fn1 assault by means of force likely to produce great bodily injury (count II; § 245, subd. (a)(1)) with a great bodily injury enhancement (§ 12022.7, subd. (a)), kidnapping (count III; § 207, subd. (a)), and making criminal threats (count IV; § 422). The trial court sentenced defendant to an indeterminate term of seven years to life on count I, along with determinate terms as follows: the upper term of eight years on count III, which the court designated as the principal term; one-third the midterm, or one year, for count II; one-third the midterm, or eight months, for count IV, and three years for the section 12022.7 enhancement, all to be served consecutively.
Defendant appeals. He contends there is no substantial evidence to support his conviction for torture. He also contends, and the People concede, that his sentence for assault by means of force likely to produce great bodily injury must be stayed pursuant to section 654 and the trial court erroneously failed to limit defendant's sentence on the great bodily injury enhancement to one-third the term and to stay the sentence on that enhancement. Lastly, defendant contends that the abstract of judgment should be corrected. We conclude that the torture conviction is supported by substantial evidence and that the abstract needs only a minor correction. We modify the judgment in accordance with the conceded issues and otherwise affirm.
Defendant was a pimp. He and his prostitute, Amanda Johnson, began a working and dating relationship in the spring of 2008. During their relationship, defendant had been violent toward Johnson. For example, on one occasion, defendant found out Johnson had been in contact with a former boyfriend. He woke her up, made her stand up, and punched her in the mouth, knocking her unconscious. He then woke her two additional times and made her stand up to be punched again each time. Johnson suffered a shattered jaw and broken teeth. On another occasion, he severely beat her after she showed emotion over a friend who had died.
On the evening of November 21, 2008, defendant and Johnson were at Harrah's casino in South Lake Tahoe. Defendant was drinking with a friend while Johnson was in a different bar looking for customers. While Johnson was in the bar, Margaret Garza, the victim here, approached Johnson. Garza talked to Johnson about the escort service for which Garza was working. Garza was intoxicated and irritated Johnson. Johnson told Garza she was not interested. Garza made a lewd comment to Johnson in front of the bartender, and the bartender told Garza to leave the bar. Garza was new to the escort business and had not met Johnson before that night.
In the early morning hours of November 22, 2008, Johnson reconnected with defendant. Johnson was intoxicated and became very upset that defendant was hanging out with two men, Miami and Reuben, because she thought they might introduce defendant to other women. Defendant slapped Johnson and left her in the car.
Johnson eventually joined defendant, Miami, and Reuben in the Lakeside Inn and Casino. The four of them drove to the Cedar Lodge, where they were staying. Johnson became angry again because defendant planned to go back out with Miami and Reuben. She then saw Garza across the parking lot and told defendant that Garza was the woman who had made comments to her at the bar and had tried to "knock" her (which is slang for recruit her to work for another pimp). Defendant walked across the parking lot to speak with Garza. Defendant testified he was going to try to recruit Garza.
Garza testified that she and defendant had a friendly conversation but that near the end of the conversation, she said something mean to defendant about being from Sacramento. The next thing Garza remembered was being in a car.
Johnson saw defendant and Garza talking and laughing. Angry and jealous, Johnson took off her shoes and crossed the parking lot. According to Johnson, she heard Garza say something disrespectful to defendant and Johnson told her she needed to "get out of my man's face." Johnson then jumped over defendant and smashed a glass on Garza's head, cutting Garza's head open. Defendant then punched Garza in the face, knocking her to the ground. Garza was motionless. Defendant hit Garza several more times. Johnson grabbed Garza's purse and dumped it out to see if there was anything she wanted. As Johnson took Garza's wallet and perfume, defendant repeatedly punched and kicked Garza, yelling things like, "Talk back now, Bitch, you can't say nothing now."
Johnson did not want to leave Garza's motionless body in the parking lot where police would see her. Johnson and defendant grabbed Garza by the hair and shirt and dragged Garza across the parking lot to their car. Defendant asked a group of people standing around "Whose bitch is this?" but no one assisted Garza. Defendant, Johnson, and Reuben put Garza in the backseat of the car between Reuben and Miami, and they left, with Johnson driving. As they left the motel, defendant repeatedly slapped Garza and said, "Bitch, call me Daddy." Johnson intended to drive far out toward the north shore and leave Garza "far from civilization."
At some point, Garza regained consciousness. She started to say that she recognized Johnson but defendant turned around from the front passenger seat, punched her in the face and said, "You don't remember shit, bitch." Defendant repeatedly punched Garza as they drove, and periodically held the steering wheel so Johnson could punch Garza as well. Both defendant and Johnson told Garza they were going to kill her. When Garza pleaded that she had a daughter, they told her they did not care. Johnson said, "how does it feel to know that your daughter is not going to have a mom?" and defendant just smirked or smiled. Garza asked what she had done and Johnson said that "she liked to talk shit." Because Garza believed she was going to be killed, she began smearing her blood all over the car.
Johnson pulled off the road near Camp Richardson and told the men to get Garza out of the car. Johnson pulled Garza out of the car; as she did so, Garza came out of her shirt and Johnson threw it into the trees. Johnson removed all of Garza's clothing and jewelry and then hit and kicked Garza as she lay on the ground. Defendant kicked her at least once as well. They then left Garza naked by the side of the highway and drove off. The temperature was cold.
Garza gathered the only clothing left behind, her shoes and light knit cardigan. She put the cardigan on, and then ran from the immediate area. She was eventually able to flag down the driver of a Caltrans truck. She suffered numerous injuries including a fractured nose, several broken teeth, multiple facial contusions and lacerations, and a laceration to the back of her head that required a surgical staple.
Substantial Evidence of Torture
Defendant contends there was no substantial evidence to support his conviction for torture. We disagree.
"Every person who, with the intent to cause cruel or extreme pain and suffering for the purpose of revenge, extortion, persuasion, or for any sadistic purpose, inflicts great bodily injury as defined in Section 12022.7 upon the person of another, is guilty of torture." (§ 206.)
"The intent with which a person acts is rarely susceptible of direct proof and usually must be inferred from facts and circumstances surrounding the offense. [Citations.] In reviewing a jury's determination, we view the whole record in a light most favorable to the verdict, drawing all reasonable inferences and resolving all conflicts in support of the jury's verdict. [Citation.] We must uphold the verdict unless it clearly appears that upon no hypothesis whatever is there sufficient evidence to support it. [Citation.]" (People v. Massie (2006) 142 Cal.App.4th 365, 371.)
Defendant admits the evidence established he inflicted great bodily injury on Garza. He punched her in the face with such force as to render her unconscious, continued to hit and kick her after she fell to the ground, helped drag her by her hair across the parking lot, put her in a car where he continued to punch her and taunt her, and then left her naked and beaten in the cold in a remote area. Garza suffered a broken nose, several fractured teeth, lacerations, and extensive bruising as a result of the attack. This conduct is more than sufficient to show "the intent to cause cruel or extreme pain and suffering."
As for the purpose element of torture, defendant insists that it is unknown what triggered him to beat Garza. We conclude that the evidence satisfied at least two of the alternative purpose elements of torture -- revenge and sadistic purpose.
There is substantial evidence that defendant's vicious assault on Garza was for the purpose of revenge. Johnson pointed Garza out to defendant and reported she was the woman who tried to "knock" her at the bar. Defendant then went to talk to Garza, allegedly to try to recruit her to be his prostitute. Whether she laughed at him, declined, was rude, or was interrupted by Johnson's attack, the jury could reasonably have found defendant beat and taunted Garza to punish her for bothering Johnson, for trying to recruit Johnson away from him, for refusing his offer to be her pimp, for embarrassing him in the parking lot, or for all of these reasons. In fact, defendant even yelled at Garza, "talk back now, Bitch, you can't say nothing now" while he kicked and punched her.
There is substantial evidence that defendant's assault on Garza was also for a sadistic purpose. The evidence suggests that defendant gratuitously and severely beat and taunted her for his own entertainment -- because his "bitch went crazy," as he described it, and he just decided to join in the fray. As the prosecutor pointed out, "defendant didn't have any reason, he had the opportunity to beat somebody, so he did it." The evidence suggests he did it for the fun of it -- which is why he made her believe she was going to be killed and smirked when Johnson told her that her daughter would be left without a mother. The evidence also suggests he did it for the feeling of machismo -- calling Garza "bitch" and demanding she call him "daddy."
The jury was appropriately instructed that "someone acts with sadistic purpose if he or she intends to inflict pain on someone else in order to experience pleasure himself or herself." (CALCRIM No. 810.) It is readily apparent to us that a reasonable jury could have concluded that the gratuitous and repeated acts of brutality against Garza were committed for the sadistic purpose of providing defendant pleasure, whether for the feeling of machismo or simply a perverted enjoyment of causing the victim to suffer.
Finally, we reject defendant's attempt to separate the comments he made to Garza in the car, which he admits "certainly showed a sadistic bent," from his brutal physical attack. As defendant subsequently argues in connection with his contention that his sentence must be stayed, his actions consisted of one ongoing, indivisible course of criminal conduct. Moreover, he uttered those words as he continued to punch Garza. Substantial evidence supports defendant's conviction for torture.
Stay of Sentence for Assault
Defendant next contends, and the People concede, that his sentence for assault by means of force likely to produce great bodily injury must be stayed pursuant to section 654, as the assault was incident to the same criminal objective as the torture.
Section 654 provides in pertinent part: "An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision." (§ 654, subd. (a), italics added.) Section 654 was "intended to ensure that defendant is punished 'commensurate with his culpability'." (People v. Harrison (1989) 48 Cal.3d 321, 335.) A course of conduct that constitutes an indivisible transaction violating more than a single statute cannot be subjected to multiple punishment. (People v. Butler (1996) 43 Cal.App.4th 1224, 1248.) "If all the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one." (People v. Perez (1979) 23 Cal.3d 545, 551.) If, on the other hand, the defendant "entertained multiple criminal objectives which were independent of and not merely incidental to each other, he may be punished for independent violations committed in pursuit of each objective even though the violations shared common acts or were parts of an otherwise indivisible course of conduct." (People v. Beamon (1973) 8 Cal.3d 625, 639.)
Whether multiple convictions were part of an indivisible transaction is a question of fact for the trial court, and the trial court's finding will be upheld on appeal if it is supported by substantial evidence. (People v. Avalos (1996) 47 Cal.App.4th 1569, 1583.) Consequently, "[w]e review under the substantial-evidence standard the court's factual finding, implicit or explicit, of whether there was a single criminal act or a course of conduct with a single criminal objective." (People v. Moseley (2008) 164 Cal.App.4th 1598, 1603.)
Here, although the trial court implicitly found separate criminal objectives for the assault and the torture, it did not explain its reasoning on the record and we are unable to discern independent criminal objectives. As the jury found, defendant's objective in torturing Garza was to cause her extreme pain for the purpose of punishment, revenge, or simply his own sadistic entertainment. As the People now concede, his intent in injuring her during the assault appears to have been merely a means to that end. Thus, the criminal objective of the assault was the same, or at least incidental to, his objective for torturing Garza. Accordingly, his sentence for the offense of assault by means of force likely to produce great bodily injury must be stayed pursuant to section 654.
Additionally, because defendant's sentence for assault must be stayed, so must the attendant great bodily injury enhancement. When the base term of an offense is stayed pursuant to section 654, the attendant enhancements must also be stayed. (People v. Guilford (1984) 151 Cal.App.3d 406, 411.)
Great Bodily Injury Enhancement
Defendant also contends the trial court erroneously imposed the full three year term for the great bodily injury enhancement attached to the subordinate assault term. The People concede this point, and we agree.
Section 1170.1 provides in pertinent part: "The subordinate term for each consecutive offense shall consist of one-third of the middle term of imprisonment prescribed for each other felony conviction for which a consecutive term of imprisonment is imposed, and shall include one-third of the term imposed for any specific enhancements applicable to those subordinate offenses." (People v. Moody (2002) 96 Cal.App.4th 987, 990-993.) Thus, the trial court could lawfully impose only one-third the enhancement term, or one year, consecutive to the subordinate term imposed for assault by means of force likely to produce great bodily injury.
If a trial court imposes a sentence unauthorized by law, a reviewing court may correct that sentence whenever the error is called to the court's attention. (People v. Serrato (1973) 9 Cal.3d 753, 763, disapproved on another ground in People v. Fosselman (1983) 33 Cal.3d 572, 583, fn. 1.) Under our inherent authority to correct an unauthorized sentence (Serrato, supra, 9 Cal.3d at p. 763), we modify the judgment to change the great bodily injury enhancement on count II from three years to one year. As noted in part II., ante, the term for the enhancement is also stayed pursuant to section 654.
Life Sentence on the Abstract of Judgment
Finally, defendant contends that the abstract of judgment that sets forth his indeterminate term is confusing because it indicates that he was sentenced to life with the possibility of parole on count I, and that he was sentenced to seven years to life on count I. Defendant contends that these notations could be read to indicate that he was given two life terms. The Attorney General does not object to the correction suggested by defendant, but suggests the correction is not necessary. We partially agree with the Attorney General. Only a minor correction is necessary.
The abstract of judgment in this case consists of two Judicial Council forms. One form (CR-292) sets forth defendant's indeterminate term and the other (CR-290) sets forth defendant's determinate term. On form CR-292, both boxes 5. and 6. have been checked. Box 5. indicates that defendant was sentenced to "LIFE WITH THE POSSIBILITY OF PAROLE on counts 1." Box 6. on form CR-292 provides alternative boxes to reflect the minimum term for the various indeterminate sentences in the Penal Code. The clerk checked box 6.c., and filled in the blank for the minimum term by typing the number "7," so that the form reads "7 years to Life on counts 1."
During the sentencing hearing, the trial court imposed an indeterminate term of seven years to life on count I. Section 206.1 provides that torture (§ 206) is "punishable by imprisonment in the state prison for a term of life." However, if there exists no other minimum term established by law for a life term, section 3046, subdivision (a)(1) provides that the minimum parole eligibility for a life term is seven years. Thus, under section 3046, subdivision (a)(1), the minimum term to which the trial court could sentence defendant for the torture conviction was seven years. (See People v. Jefferson (1999) 21 Cal.4th 86 [minimum term for indeterminate term of life imprisonment for a violation of sections 664, subdivision (a), 187, 189 (attempted deliberate and premeditated murder) is seven years as provided in section 3046, subdivision (a)(1)].) As our high court has noted, it is appropriate for the trial court "to include, as part of a defendant's [indeterminate term] sentence, the minimum term of confinement the defendant must serve before becoming eligible for parole. . . . By including the minimum term of imprisonment in its sentence, a trial court gives guidance to the Board of Prison Terms regarding the appropriate minimum term to apply, and it informs victims attending the sentencing hearing of the minimum period the defendant will have to serve before becoming eligible for parole." (Jefferson, supra, 21 Cal.4th at p. 102, fn 3.)
Defendant's confusion appears grounded in the mistaken belief there is a provision in the Penal Code for a sentence of life with the possibility of parole with no minimum term, in which case only box 5 would be checked. There is no such life term sentence. If not otherwise stated in the sentencing statute, the minimum term for a sentence of life with the possibility of parole is forth in section 3046. Therefore, both box 5. and one of the alternatives qset forth in box 6. must be checked for all sentences in which the trial court has sentenced a defendant to life with the possibility of parole.
Thus, the abstract here correctly reflects the sentence imposed by the trial court. Defendant was sentenced to a term of life with the possibility of parole on count I, torture (as opposed to "LIFE WITHOUT THE POSSIBILITY OF PAROLE," which is indicated in box 4.). The minimum term to which defendant was sentenced is reflected in box 6.c. by the notation "7 years to life on counts 1." The abstract accurately informs California Department of Corrections and Rehabilitation classification personnel and the Board of Prison Terms of the trial court's sentence on count I.
Judicial Council form CR-292 is slightly confusing in one respect. In its current form, a blank must be filled in for boxes 4., 5., and the alternatives in box 6. following the words "on counts" to indicate the count for which a sentence has been imposed. There is no way to choose the singular word "count" on this standardized form. As a consequence, the abstract here reads on box 5., "LIFE WITH THE POSSIBILITY OF PAROLE on counts 1" and "7 years to life on counts 1." To avoid confusion, we direct the clerk to cross out the letter "s" in the word "counts" in boxes 5. and 6.c. to reflect the singular, "count 1" instead of the plural, "counts 1."
The judgment is modified to stay the sentence on count II, assault by means of force likely to produce great bodily injury, and the attendant great bodily injury enhancement, pursuant to section 654. The judgment is further modified to reflect that the stayed enhancement on count II is one-third the term, making the term one year. Also, the abstract of judgment must be corrected to reference "count 1" instead of "counts 1" in boxes 5. and 6.c." The trial court is directed to prepare an amended abstract of judgment reflecting these modifications and to forward a certified copy of the amended abstract to the Department of Corrections and Rehabilitation.
We concur: RAYE , P. J. BLEASE , J.