(Super. Ct. No. 09CRF0284)
The opinion of the court was delivered by: Murray , J.
Received for posting on 8/16/11
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 ...