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The People v. Jordan Isiah Kidd

January 26, 2012

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
JORDAN ISIAH KIDD, DEFENDANT AND APPELLANT. THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
ZACHARY TYLER ET AL., DEFENDANTS AND APPELLANTS.



(Super. Ct. No. 07F01299)

The opinion of the court was delivered by: Hull , Acting P. J.

P. v. Kidd

CA3

NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Super. Ct. No. 07F01299)

Following a home invasion that escalated into a kidnapping, sexual assault and attempted murder, defendants Zachary Tyler, David Griffin, Jordan Kidd, Lashea Merritt and Kimberly Knorr, all of whom were either members or associates of a criminal street gang named the 29th Street Crips, were variously convicted of the following crimes: robbery in concert, burglary, kidnapping, oral copulation in concert, participation in a criminal street gang, conspiracy to commit murder, attempted murder, unlawful possession of a firearm, and unlawful possession of ammunition. Many of the offenses were also found to have been committed for the benefit of a criminal street gang.

All five defendants appeal various aspects of their convictions and/or sentences, and we have consolidated those appeals for argument and decision. We conclude there is insufficient evidence to support Knorr's robbery conviction, and the gang enhancement imposed on the burglary count for all defendants must be reduced from 10 years to five because it was not alleged the burglary was a violent felony within the meaning of Penal code section 667.5, subdivision (c). (Further undesignated section references are to the Penal Code.) We also conclude a fine imposed pursuant to section 667.6 must be stricken and various corrections must be made to the abstracts of judgment. We further conclude the sentence imposed on Merritt, who was only 15 years old at the time of the offenses and who will not be eligible for parole until she is over 100 years old, constitutes cruel and unusual punishment. Finally, we conclude the determinate portion of the sentence imposed on Kidd violates section 1170.1 and shall remand for resentencing. In all other respects, we affirm the judgments.

Facts and Proceedings

At all times relevant to this matter, defendants Zachary Tyler, David Griffin and Lashea Merritt were members of a criminal street gang called the 29th Street Crips, which is based in South Sacramento. Tyler's gang name was "Smash," Merritt was called "Lady Smash," and Griffin went by the name of "Baby Attitude." Defendant Jordan Kidd was a member of the Valley High Crips, which is an "ally" of the 29th Street Crips. His gang name was "Five." Defendant Kimberly Knorr was an "associate" of the 29th Street Crips who was in a dating relationship with Kidd. Her gang name was "Lady Five."

In January 2007, Destiny Doe and Knorr were living at the residence of Nate E. in Sacramento. Doe worked as an assistant preschool teacher while also moonlighting as a prostitute for Nate's "escort" service. Knorr also worked for Nate. While they lived together, Knorr often bragged to Doe about things she and her "Crip homies" did together.

On the evening of January 22, 2007, Doe and Knorr were returning home in Doe's car when Doe received a call from Nate telling her Knorr had been kicked out of the residence and not to bring her to Nate's house. Doe dropped Knorr off at a gas station on the corner of Fruitridge and Franklin Boulevard.

Knorr's sister, B.K., was dating Tyler at around this time and, on the evening of January 22, was with him at the home of A.S., who was Merritt's mother and was known by the gang name of "Mama Solo." Also present were A.S., Griffin, Kidd, Merritt, and Merritt's brother, L.M., who is known as "Baby Solo."

After Knorr was dropped off, she called B.K. and told her she had argued with Nate and was moving out of his residence. Knorr said she had been dropped off by Doe and needed a ride to pick up her things. Tyler drove to Knorr's location and brought her back to the A.S. residence.

When Knorr arrived, she was upset and said Nate had insulted the gang. In particular, Knorr told them Nate had said, "fuck them--fuck Smash and them. They're not no 29th Street Garden Block Crips." Garden Block Crips is another name for the 29th Street Crips.

The others in the room jumped up and "started talking shit to one another about--about it." Tyler said, "fuck that nigga, let's go smoke him." In gang culture, to "smoke" means to kill. Tyler also said they should rob Nate. Tyler, Kidd, Griffin, Knorr, Merritt and L.M. departed in two cars, a white and a blue Buick.

Meanwhile, Doe had returned to Nate's residence and was resting in her room. Nate was also present. Later, Doe heard a disturbance in front of the residence caused by a prior girlfriend of Nate named Mia. When Doe first moved into the house, Knorr and Mia were also living there, but Mia had since moved out. On this evening, Mia was banging on the window and trying to get Nate to come outside and talk with her. Doe got up and moved to what had been Knorr's bedroom, which was toward the back of the residence. She fell asleep on Knorr's bed.

Some time later, Doe awoke and saw a silhouette outside the bedroom window. She then saw four or five people wearing bandanas enter the bedroom through the window. They pointed guns at her and told her not to say anything. Doe was held at gunpoint while others searched the residence for Nate, who had fled upon seeing what was happening. Doe was told to get dressed and was taken into the living room. Meanwhile, the intruders took off their bandanas and rummaged through the house looking for things to steal. Doe heard the names Smash and Five mentioned and saw the intruders put clothes and a stereo inside a sheet which they later took with them.

When the intruders departed, they took Doe as well. She got into the blue Buick with three of them, and they followed the white Buick away from the scene. Doe later identified the three in the car with her as the one called Five along with Griffin and Merritt.

They all stopped at an apartment complex on 29th Street that had been the birthplace of the gang. Tyler took Doe aside and said to her that "you're with us now and I'll take care of you, and why don't you work for me?" They later got back in the cars and drove away, telling Doe they are the "mob" and this is the "mob life" and "you're with the mob now."

They eventually arrived at the home of A.S., where Doe was taken inside. She saw Knorr, B.K., A.S., another woman and a young boy, as well as the others from the home invasion. Doe was taken to a bedroom, where Tyler, Kidd and Griffin talked about "running a train" on her and forcing her to perform oral sex. Tyler yelled at Doe, "you're gonna suck up all my homies," and Kidd and Merritt ordered her to orally copulate "Little Homie." Merritt further said, "give my little homie some head, you're a ho anyway." Tyler told Doe she was going to go out and start making money for him.

Doe was eventually told she had to orally copulate L.M. and was left alone in the room with him. She did as directed and, after eight minutes or so, L.M. departed. Tyler then came in the room and forced Doe to orally copulate him as well.

Later that evening, Doe was again placed in the white Buick and departed with Tyler, Kidd, Griffin, and Knorr. It is unclear whether Merritt accompanied them on this trip. Kidd and Griffin were both armed with handguns. Before leaving, B.K. overheard Kidd and Tyler say, "If somethin' is gonna be done, the bitch has gotta be iced." She also heard Tyler say something to A.S. like, "we brought the bitch here so she couldn't tell."

After stopping at another residence for 15 or 20 minutes, they drove to an area near railroad tracks and an empty field. Doe was told to get out of the car and to start walking through the field. She did as directed. After a while, Doe started hearing gunshots. She began walking faster and then running and continued to hear gunshots. She also saw bullets hit the ground around her. One of the shots hit Doe in the back just below the shoulder blade.

Doe ran toward the light of a house and eventually reached the house, where she yelled for help. A man came outside, saw Doe and carried her onto the porch. He called 9-1-1 for help. Doe told the man the 29th Street Crips had shot her.

According to the prosecution's gang expert, all of the foregoing actions of the defendants were for the benefit of the 29th Street Crips.

On February 3, 2007, police officers contacted Tyler and Merritt in a hotel room. They found a handgun and ammunition in the room. On February 13, police officers found Griffin in a residence along with a gun and ammunition. On February 28, police officers discovered Kidd in a residence with a handgun and ammunition.

All five defendants were charged with robbery in concert, burglary, aggravated kidnapping, conspiracy to commit murder, and attempted murder. On each offense, they were further charged with enhancements for firearm use and committing the offenses for the benefit of a criminal street gang. They were also charged with a separate offense for active participation in a criminal street gang.

Tyler and Merritt were additionally charged with two counts of oral copulation in concert along with street gang enhancements. Tyler and Kidd were charged with unlawful possession of a firearm and ammunition. Kidd was also charged with battery of the mother of his child stemming from a separate incident. However, that charge was later dismissed.

The case was tried to two juries, one for Kidd alone and the other for the remaining defendants. After his arrest, Kidd had been interviewed by police, and the videotape of that interview was played to his jury alone. In that interview, Kidd first denied any involvement in the matter. However, he eventually admitted he went to Nate's house, but only to steal something and not to kidnap or shoot anyone. He denied kidnapping or shooting anyone. He also denied having a gun and claimed that he departed with Knorr before the others came out of the house and did not know Doe had been taken with them. He denied accompanying the others to the home of A.S.

Tyler was the only defendant to testify at trial. He acknowledged that he went with Knorr to Nate's residence that night, but claimed he went there only to allow Knorr to pick up her things. Tyler claimed he waited in the car while Knorr went inside and that Doe came out with Knorr and departed with them voluntarily. Tyler asserted that, when they left, Doe asked to be taken to a school where she met up with some of her "homeboys." Doe got out and spoke with four men. Tyler overheard her say "fuck Nate" and told the guys they could go to his house and take whatever they wanted because she left the front door unlocked. Tyler then drove them to the residence of A.S. and hung out there for a while. Later, Tyler took Doe to meet up with a "date" she had that evening. According to Tyler, that was the last time he saw Doe.

Tyler, Griffin and Kidd were convicted on all charges, and all enhancements were found true.

Knorr was found not guilty of aggravated kidnapping but guilty of the lesser offense of simple kidnapping. She was also acquitted of attempted murder. The jury was unable to reach a verdict on the charge of conspiracy to commit murder, and the court declared a mistrial on that charge. Knorr was convicted on all other charges and all other enhancements were found true. The People later dismissed the conspiracy charge.

Merritt too was acquitted of attempted murder. The jury was not able to reach a verdict on one count of oral copulation, for which a mistrial was declared. Merritt was convicted on all other charges and all other enhancements were found true. The People later dismissed the oral copulation charge on which the jury could not reach a verdict.

Tyler was sentenced on the burglary charge to the upper term of six years plus 10 years and one year respectively for the gang and firearm use enhancements. On the two oral copulation counts, he received full consecutive terms of seven years, plus 10-year gang enhancements. Sentence on the substantive gang offense was stayed. Tyler received a one-third middle term of eight months on the firearm possession count and the same sentence on the ammunition count, with the latter stayed. He also received sentences of two years eight months, and one year on two unrelated charges. Finally, Tyler received an indeterminate term of 25 years to life plus an enhancement of 25 years to life for conspiracy to commit murder, a consecutive term of 15 years to life for aggravated kidnapping, and indeterminate terms for robbery in concert and attempted murder, with the latter two stayed. In all, Tyler was sentenced to 55 years four months, plus 65 years to life.

Griffin was sentenced on the burglary count to the upper term of six years, plus 10 years for the gang enhancement and one year for the firearm enhancement. On an unrelated attempted murder charge on which he had been convicted earlier, Griffin received a consecutive, one-third middle term of two years four months, plus four months for firearm use. On the separate gang charge, Griffin received a one-third middle term of eight months, stayed pursuant to section 654. For conspiracy to commit murder, Griffin received an indeterminate term of 25 years to life, plus a separate term of 25 years to life for the firearm enhancement. On the aggravated kidnapping charge, Griffin received a consecutive, indeterminate term of 15 years to life. Finally, on the charges of attempted murder and robbery in concert, Griffin received further indeterminate terms that were stayed pursuant to section 654. The total sentence imposed on Griffin was 19 years 8 months, plus 65 years to life.

Kidd was sentenced on the conspiracy to commit murder charge to an indeterminate term of 25 years to life, plus a consecutive enhancement of 25 years to life for the firearm use. On the aggravated kidnapping charge, he received a consecutive, indeterminate term of 15 years to life, with a 10-year enhancement for firearm use. On the robbery in concert charge, the court imposed but stayed an indeterminate term of 15 years to life. On the attempted murder, the court imposed an indeterminate term of 15 years to life plus an enhancement of 25 years to life for firearm use, but stayed these terms as well. On the burglary charge, the court imposed a one-third middle term of one year four months, with gang and firearm enhancements of two years. On the firearm possession charge, Kidd received a consecutive, one-third middle term of eight months. On the gang charge and possession of ammunition charge, he received stayed, one-third middle terms of eight months. The total sentence imposed on Kidd was four years plus 75 years to life.

Knorr was sentenced on the burglary count to the middle term of four years, plus 10 years and one year respectively for the gang and firearm use enhancements. For simple kidnapping, she received a consecutive one-third middle term of one year eight months, plus three years four months for the firearm use enhancement. Sentence on the separate gang charge was stayed. On the robbery in concert count, Knorr received an indeterminate term of 15 years to life, for a total sentence of 20 years plus 15 years to life.

Merritt was sentenced on the burglary count to the middle term of four years, plus 10 years and one year respectively for the gang and firearm use enhancements. On the one charge of oral copulation in concert, she received a full consecutive term of five years plus a 10-year gang enhancement. Sentence was stayed on the separate gang charge. On the robbery in concert charge, Merritt received a consecutive, indeterminate term of 15 years to life. She also received an indeterminate term of 25 years to life for conspiracy to commit murder, plus an enhancement of 25 years to life for the firearm use. Finally, sentence on the kidnapping charge was stayed. The total sentence imposed on Merritt was 30 years plus 65 years to life.

All five defendants appeal.

Discussion

Each defendant has filed a brief raising various arguments, only a few of which overlap. Nevertheless, each defendant has joined in all arguments raised by the others. We shall address the arguments of each defendant in turn. While we identify each argument as that of the party raising it, we acknowledge the joinder of the others.

I

Kimberly Knorr

Knorr raises the following contentions on appeal: (1) there is insufficient evidence she participated in the robbery; (2) she received inadequate notice of the nature of the robbery charge; (3) because Knorr was a resident of Nate's house, she cannot be convicted of burglarizing her own home; (4) there is insufficient evidence of kidnapping; (5) there is insufficient evidence supporting the gang conviction and enhancements; (6) the sentence on the burglary count must be stayed; (7) the trial court erred in excluding testimony from B.K. regarding Knorr's state of mind; and (8) Knorr was denied due process when she was handcuffed in front of the jury. We find merit in the first contention only.

A

Sufficiency of the Evidence--Robbery

Knorr contends there is insufficient evidence under either an aider and abettor or conspiracy theory to support her conviction for robbery. According to Knorr, there is no evidence she intended that the others rob either Doe or Nate. On the contrary, she argues, "[w]hen someone suggested that they rob Nate, [Knorr] said no, she just wanted to get her stuff." Knorr argues her presence at the scene, without more, is insufficient to convict her as an aider and abettor. As for conspiracy, Knorr argues there is no evidence that she agreed with the others to commit a robbery.

In reviewing the sufficiency of the evidence supporting a conviction, we view the evidence in the light most favorable to the prosecution and determine if a rational trier of fact could have found the elements of the offense beyond a reasonable doubt. (People v. Davis (1995) 10 Cal.4th 463, 509.) In making this determination, we consider the record as a whole, not isolated bits of evidence. (People v. Johnson (1980) 26 Cal.3d 557, 577-578.) Reversal on the basis of insufficient evidence is not warranted unless it appears "that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction]." (People v. Redmond (1969) 71 Cal.2d 745, 755.)

The People disagree there is insufficient evidence to support the robbery conviction. According to the People, Knorr was angry at Nate and told the others Nate had disrespected the gang. She also told them Nate had a Mercedes SUV in his garage. When the defendants left for Nate's residence, some were armed, and it is reasonable to infer Knorr knew it. Knorr led the others to the residence in order "to get Nate and her belongings." According to the People: "It is reasonable to infer that Knorr agreed with going to Nate's house, doing a home invasion, and robbing Nate. She did not just want her clothes back. She was upset at being kicked out and at having her gang, which included her boyfriend Kidd ('Five'), disrespected. Like everyone, she went back to Nate's seeking revenge. She knew her group would take whatever valuables they could find, and she knew that [Doe] and Nate would likely be in the house." According to the People, "[f]rom this evidence and reasonable inferences, the jury could reasonably conclude that Knorr intended to facilitate the home invasion and robbery of [Doe]."

We have difficulty following the People's leap of logic. Knorr and the others were charged with the robbery of Doe, not Nate. The People argue that, because there is evidence suggesting Knorr intended that the others rob Nate, she also intended that they rob Doe. But there is no evidence Knorr was angry at Doe or sought revenge against her. She did not inform the others that Doe had disrespected the gang. She did not mention that Doe had a Mercedes at the residence.

The People argue that, "[s]ince the invaders asked [Doe] about specific items, they most likely got that information from Knorr who had lived there." However, the only items the intruders asked Doe about were the location of a safe, the money and the keys to Nate's truck. There is no reason to believe any of these items were the property of Doe. The People further argue defendants brought two cars "to carry everyone and the loot." Again, however, there is nothing to suggest the anticipated loot was that of Doe.

Knorr did not enter the residence and therefore was not involved in the actions of the others in taking items belonging to Doe. There is no evidence in this record from which it may be inferred Knorr conspired with the others in advance to rob Doe.

As for Knorr's liability under an aider and abettor theory, such liability requires proof the defendant acted "with knowledge of the criminal purpose of the perpetrator and with an intent or purpose either of committing, or of encouraging or facilitating commission of, the offense." (People v. Beeman (1984) 35 Cal.3d 547, 560.) In this instance, there is no evidence Knorr intended that the others rob Doe, as opposed to Nate, and the jury was not instructed on a theory of natural and probable consequences, i.e., that Knorr could be convicted of robbing Doe if this was a natural and probable consequence of the home invasion.

On the record before us, we agree there is no substantial evidence to support Knorr's conviction for the robbery of Doe. And since Knorr was not charged with robbing Nate, her robbery conviction must be reversed.

B

Due Process--Robbery Charge

Knorr contends she did not receive adequate notice of the robbery charge because, while the charge itself alleged robbery of Doe, the prosecution argued robbery of Nate, and the verdict form did not identify the victim. Hence, she argues, the jury may well have convicted her on the robbery count on a finding that she aided and abetted or conspired in the robbery of Nate, not Doe, in violation of her due process rights. However, having concluded Knorr's conviction for robbery must be reversed, this contention is moot.

C

Sufficiency of the Evidence--Burglary

Knorr contends her burglary conviction must be reversed for two reasons. First, she argues she retained a possessory interest in Nate's residence and, therefore, cannot be guilty of burglarizing her own residence. She further argues the evidence is undisputed that her intention in going to Nate's residence was to retrieve her own property, not to commit any crime. We reject both arguments.

In People v. Gauze (1975) 15 Cal.3d 709, our Supreme Court held that one cannot be guilty of burglarizing his or her own home. According to the court, burglary is "an entry which invades a possessory right in a building" and "must be committed by a person who has no right to be in the building." (Id. at p. 714.) In People v. Salemme (1992) 2 Cal.App.4th 775, this court expanded on Gauze in concluding that "a person who enters a structure enumerated in section 459 with the intent to commit a felony is guilty of burglary except when he or she (1) has an unconditional possessory right to enter as the occupant of that structure or (2) is invited in by the occupant who knows of and endorses the felonious intent." (Id. at p. 781, second italics added.) Thus, in People v. Smith (2006) 142 Cal.App.4th 923, the defendant husband's burglary conviction was upheld where he broke into the family residence with felonious intent sometime after his wife had obtained a restraining order removing him from the home. (Id. at pp. 927, 931.)

In this instance, the evidence before the jury was that, prior to the entry by Tyler and the others, Nate had kicked Knorr out of his residence. There was no evidence that Knorr had any ownership or leasehold interest in the residence. Thus, even though some of her belongings remained inside, Knorr did not have an unconditional possessory right to the premises.

Knorr argues there is insufficient evidence she shared the others' criminal intent when they entered the residence. According to Knorr, "[i]t has been the law for more than a century that the mere fact one person is with another who enters a dwelling house and steals therefrom, and sees the other steal without interference on his part to prevent it, does not render him guilty of the crime . . . ." Knorr cites as support People v. Ah Ping (1865) 27 Cal. 489 (Ah Ping), where Ah You and Ah Ping were seen entering another's cabin and putting items of food into two sacks, after which Ah You alone carried them off. At the trial of Ah Ping, Au You testified that he alone committed the crime and that Ah Ping was an innocent stranger whom he had met earlier. (Id. at pp. 489-490.) Ah Ping was convicted, but the Supreme Court reversed the conviction. (Id. at pp. 490-491.) The court explained: "The appellant may have been in the house with one who was, himself, there, with felonious intent; he may have seen the latter in the act of committing a felony and have made no attempt to interfere, and still be entirely innocent. These facts, if found, would not necessarily have established the defendant's guilt . . . ." (Id. at p. 491.)

Knorr argues, she "was not even in the house with the perpetrators of the crimes therein, and thus even more removed than Ah Ping. She was sitting in her sister's white Buick some distance away from the house. She had rejected [Tyler's] idea to go there to smoke and rob Nate, which was the only evidence offered to prove that [Knorr] acted as an aider and abettor, and with criminal intent. Without more, it is sheer speculation to believe that [Knorr] intended to commit burglary, or any other crime. The evidence showed only that she wanted to go there in order to get her belongings--as Nate had said she should. [Citation.] Analogizing to Ah Ping, she was in the position of Mr. Ping watching while Ah You carried off the goods."

Knorr's reliance on Ah Ping is misplaced. The issue there was not, as here, whether there was sufficient evidence to convict Ah Ping of burglary. Clearly there was. In Ah Ping, the jury had been instructed that if the evidence showed the defendant "was with the one who did steal as charged" and "saw him steal without interference on [the] defendant's part to prevent it," then the defendant had the burden of proving his innocence. (Ah Ping, supra, 27 Cal. at p. 490.) The high court reversed the conviction because of this clearly erroneous instruction that placed the burden on the defendant to prove his innocence.

In the present matter, the issue is the sufficiency of the evidence. While Knorr may not have shared the intent of the others to rob Doe, there is sufficient evidence to support a jury finding that she shared their intent to commit either robbery or murder, or both, against Nate. Knorr's claim that her only intent in going to Nate's residence was to retrieve her property is belied by the fact that, when the intruders arrived at the residence, Knorr did not accompany them inside to point out her belongings, and by the fact that the others did not simply knock at the front door to gain entry but chose instead to sneak in through a window. Knorr relies on her sister's testimony that Knorr told the others before they departed for Nate's residence that she did not want to rob anyone but just wanted to get her own things. However, the jury was free to reject this testimony on the basis of bias.

We conclude substantial evidence supports Knorr's burglary conviction.

D

Sufficiency of the Evidence--Kidnapping

Knorr contends there is insufficient evidence to support her conviction for kidnapping. Knorr argues there is no evidence she knew Doe would be in her bedroom that night or that the others would kidnap her.

But even assuming Knorr had no reason to believe Doe would be in the residence or that the others would kidnap her, it may nevertheless be inferred she saw the others bring Doe out of the residence with them when they departed. Her continued participation with them, first by leading them to the apartment complex on 29th Street and then to the home of A.S., and then accompanying the others to the field where they attempted to kill Doe, makes Knorr liable as an aider and abettor of the kidnapping.

Knorr's intent to aid and abet the kidnapping need not precede the initial movement against the victim's will. "[T]he crime of kidnapping continues until such time as the kidnapper releases or otherwise disposes of the victim and has reached a place of temporary safety . . . ." (People v. Barnett (1998) 17 Cal.4th 1044, 1159.) In order to be guilty as an aider and abettor of the kidnapping, Knorr need not assist the entire kidnapping. Assistance given during any portion of the offense will suffice. So while Knorr may not have intended that Doe be taken from the residence, she fully participated in the kidnapping thereafter. Her kidnapping conviction is therefore supported by substantial evidence.

E

Sufficiency of the Evidence--Gang Participation

Knorr challenges her conviction under section 186.22, subdivision (a), which makes it a crime to knowingly and actively participate in a criminal street gang.

Section 186.22 defines "criminal street gang" as "any ongoing organization, association, or group of three or more persons, whether formal or informal, having as one of its primary activities the commission of one or more of the criminal acts enumerated in paragraphs (1) to (25), inclusive, or (31) to (33), inclusive, of subdivision (e), having a common name or common identifying sign or symbol, and whose members individually or collectively engage in or have engaged in a pattern of criminal gang activity." (§ 186.22, subd. (f).) The term "pattern of criminal gang activity" is defined as "the commission of, attempted commission of, conspiracy to commit, or solicitation of, sustained juvenile petition for, or conviction of two or more of the following offenses, provided at least one of these offenses occurred after the effective date of this chapter and the last of those offenses occurred within three years after a prior offense, and the offenses were committed on separate occasions, or by two or more persons: [33 offenses are identified]." (§ 186.22, subd. (e).)

Knorr contends her conviction for participating in a criminal street gang must be reversed both because there is insufficient evidence she aided and abetted the others in any of their crimes and because there is insufficient evidence the criminal conduct was gang-related. However, we have already rejected Knorr's contention regarding the sufficiency of the evidence that she aided and abetted the others, at least as to the burglary and kidnapping. Contrary to Knorr's arguments, the jury could reasonably have concluded she intended that the others commit a burglary and actively participated in the kidnapping after it began.

As for Knorr's contention that there is insufficient evidence the offenses were gang-related, she spends considerable time explaining why the law requires that the offenses be gang-related but fails to explain why the specific crimes in this matter are not. She argues simply that there is insufficient evidence of a nexus between her status as an "associate" of the 29th Street Crips and the charged offenses. Where a point is raised in an appellate brief without argument or legal support, "it is deemed to be without foundation and requires no discussion by the reviewing court." (Atchley v. City of Fresno (1984) 151 Cal.App.3d 635, 647.)

At any rate, as discussed later in connection with arguments raised by the other defendants, there was sufficient evidence that all the crimes were gang-related.

F

Stay of the Sentence for Burglary

Knorr contends section 654 precludes her punishment for both burglary and robbery and, therefore, the sentence on the burglary count must therefore be stayed. However, we have concluded Knorr's conviction on the robbery must be reversed for lack of substantial evidence. Therefore, her section 654 claim is moot.

G

State of Mind Evidence

During cross-examination of Knorr's sister, B.K., Knorr's counsel asked whether B.K. recalled going to Knorr while they were at the home of A.S. and telling Knorr that Doe wanted to go home. B.K. answered yes. Counsel then asked: "And you recall [Knorr] saying that she was --." At that point, the prosecutor interposed a hearsay objection and Knorr's counsel argued the question fell within the state of mind exception to the hearsay rule. Knorr's counsel asserted B.K. would answer that Knorr "told her that she [Knorr] was afraid to do anything because they were going to beat her ass." The trial court ruled B.K.'s anticipated answer was relevant to the case and may well fall within the state of mind exception to the hearsay rule. However, the court excluded it as otherwise untrustworthy.

Knorr contends the trial court abused its discretion in excluding the proffered evidence. She argues her state of mind was central to the charges against her and this evidence demonstrated she was acting out of fear of the others. She further argues there was nothing untrustworthy in the evidence and the trial court should have weighed the probative value of the evidence against its prejudicial effect under Evidence Code section 352 and concluded the probative value far outweighed any possible prejudice to the prosecution. She further argues exclusion of the evidence amounted to a denial of her right to present a defense.

Evidence Code section 1250 states: "(a) Subject to Section 1252, evidence of a statement of the declarant's then existing state of mind, emotion, or physical sensation (including a statement of intent, plan, motive, design, mental feeling, pain, or bodily health) is not made inadmissible by the hearsay rule when: [¶] (1) The evidence is offered to prove the declarant's state of mind, emotion, or physical sensation at that time or at any other time when it is itself an issue in the action; or [¶] (2) The evidence is offered to prove or explain acts or conduct of the declarant. . . ."

Evidence Code section 1252 in turn provides: "Evidence of a statement is inadmissible under this article if the statement was made under circumstances such as to indicate its lack of trustworthiness." To be admissible under this section, "statements must be made in a natural manner, and not under circumstances of suspicion, so that they carry the probability of trustworthiness. Such declarations are admissible only when they are '"made at a time when there was no motive to deceive."' [Citations.]" (People v. Edwards (1991) 54 Cal.3d 787, 820.) A determination under Evidence Code section 1252 "'requires the court to apply to the peculiar facts of the individual case a broad and deep acquaintance with the ways human beings actually conduct themselves in the circumstances material under the exception. Such an endeavor allows, in fact demands, the exercise of discretion.' [Citation.] A reviewing court may overturn the trial court's finding regarding trustworthiness only if there is an abuse of discretion. [Citations.]" (Edwards, at pp. 819-820.)

The People contend the trial court correctly concluded Knorr's statement to her sister was not trustworthy because "Knorr had strong motives to misrepresent her involvement in the crime spree to her sister." According to the People, Knorr "did not want her sister to think badly of her" and "her sister could later claim that Knorr was an unwilling participant and provide [Knorr] with a defense." The People further argue the law does not require the court to conduct an Evidence Code section 352 analysis and, in any event, the probative value of the testimony was minimal in light of other evidence demonstrating Knorr's active participation in the crime spree. Finally, the People point out that, by the time Knorr purportedly made the statement to her sister, the robbery, burglary and kidnapping had already taken place, and Knorr was not convicted of any of the offenses that occurred thereafter.

The People place unwarranted emphasis on the fact the offenses for which Knorr was convicted all occurred before her purported statement to her sister. To the extent Knorr's statement was probative of her state of mind at the time it was made, it was also probative of her state of mind both before and after the statement.

At any rate, assuming the trial court erred in excluding the evidence, we conclude such error was harmless. "A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous exclusion of evidence unless the court which passes upon the effect of the error or errors is of the opinion that the error or errors complained of resulted in a miscarriage of justice . . . ." (Evid. Code, § 354.) A miscarriage of justice should be found only where it is reasonably probable a result more favorable to the appealing party would have been reached in the absence of error. (O'Hearn v. Hillcrest Gym & Fitness Center, Inc. (2004) 115 Cal.App.4th 491, 500.)

In this instance, the evidence showed that while Knorr may not have been a gang member, she was heavily involved with the gang. One of the participants in the home invasion was her boyfriend Kidd. She is also the one who first told the others that Nate had disrespected the gang, a clear trigger for gang violence, and that Nate had a Mercedes SUV in his garage. And, as discussed earlier, Knorr readily participated in the kidnapping of Doe after it commenced. She was the one who led the others to the apartment complex and then to the home of A.S.

Knorr was convicted of burglary and kidnapping, both of which occurred before the purported statement about being afraid of the gang. She was not convicted of any of the offenses that occurred thereafter. Since the excluded testimony was coming from Knorr's sister, whom the jury could reasonably view as biased in her favor, it is not reasonably likely a more favorable outcome would have been reached had the evidence come in.

H

Handcuffs

After a lunch break, while Doe was still on the stand, Knorr's attorney moved for a mistrial. As the basis for the motion, he asserted: At the commencement of the lunch break, "first thing I heard was the very distinctive metallic loud clicking sounds of the handcuffs. [A guard] began handcuffing Ms. Knorr.

"I immediately upon hearing that reached over, put my hands on top of his hand and said whoa, whoa, whoa, to try to stop the situation. He did stop. But when I looked over and put my hands up there, I definitely saw that the cuffs were out. They were about waist high, and that would have been on his right side, which is exposed to the Knorr jury, exposed to both juries. All the jurors were here. I do not--I did not look over at the jury because I was so focused on hearing that sound and protecting Ms. Knorr. So I do not know for sure, I cannot say that which [sic] jurors saw this, except to say that these jurors here in Mr. Kidd's jury, they were leaving, there were some in the hallway close by."

The court found the guard's action inappropriate and asked if the defense wanted an admonition to the jury. Counsel declined. Instead, counsel for Knorr asked for a mistrial. The court denied the motion.

"[A] defendant cannot be subjected to physical restraints of any kind in the courtroom while in the jury's presence, unless there is a showing of a manifest need for such restraints." (People v. Duran (1976) 16 Cal.3d 282, 290-291.) "When a defendant is charged with any crime, and particularly if he is accused of a violent crime, his appearance before the jury in shackles is likely to lead the jurors to infer that he is a violent person disposed to commit crimes of the type alleged. [Citations.] The removal of physical restraints is also desirable to assure that 'every defendant is . . . brought before the court with the appearance, dignity, and self-respect of a free and innocent man.' [Citations.] Finally, the United States Supreme Court has acknowledged that physical restraints should be used as a last resort not only because of the prejudice created in the jurors' minds, but also because 'the use of this technique is itself something of an affront to the very dignity and decorum of judicial proceedings that the judge is seeking to uphold.'" (Id. at p. 290.) "[I]n any case where physical restraints are used those restraints should be as unobtrusive as possible, although as effective as necessary under the circumstances." (Id. at p. 291.)

Knorr cites several cases where the courts have said shackling of a defendant in open court is not authorized absent a showing of manifest need. However, the present matter does not involve court authorization to maintain Knorr in shackles before the jury. Rather, Knorr's claim is that, on one occasion, a deputy inadvertently began placing handcuffs on her before the jury departed from the courtroom. Thus, the question whether there was a showing of manifest need is a red herring.

The People contend there was no prejudice to Knorr, because there is no evidence the jury actually saw the incident in question. We agree. (See People v. Majors (1998) 18 Cal.4th 385, 406.) Furthermore, even assuming one or more members of the jury saw it, there is nothing in the record to suggest Knorr was adversely impacted thereby. On the contrary, Knorr was convicted on fewer charges than any of the other defendants, despite the fact she initiated everything and appeared to be the one calling the shots, at least initially. The evidence of Knorr's involvement in the various offenses for which she was convicted was uncontradicted. Thus, any error in the deputy's inadvertent actions was harmless beyond a reasonable doubt.

II

Lashea Merritt

Merritt raises the following contentions on appeal: (1) the trial court erred in failing to instruct on mistake of fact as a defense to conspiracy to commit murder; (2) the court gave erroneous instructions on conspiracy; (3) the court gave erroneous instructions on aggravated kidnapping; (4) sentence on the burglary count must be stayed pursuant to section 654; (5) the sentence for the gang enhancement on the burglary charge must be reduced because the offense was not charged as a violent felony; (6) the fine imposed under section 667.6 must be stricken; (7) the overall sentence imposed constitutes cruel and unusual punishment; and (8) the abstract of judgment must be corrected on the firearm enhancement for the conspiracy offense. We agree the gang enhancement on the burglary charge must be reduced, the section 667.6 fine must be stricken and the abstract must be corrected. We also conclude the overall sentence imposed on Merritt, which amounts to a life sentence without any meaningful opportunity for parole, constitutes cruel and unusual punishment.

A

Mistake of Fact Instruction

Merritt contends the trial court erred in failing to instruct on mistake of fact as a defense to the charge of conspiracy to commit murder. The jury was instructed on conspiracy and the defense of withdrawal, which requires that the defendant affirmatively announced to the others her intention to withdraw. Merritt argues there was evidence the defendants entered into a conspiracy to murder Doe but, before following through, they made statements which led Merritt to believe they had abandoned the conspiracy. Thus, she argues, there was no occasion for her to announce her abandonment of the plan as well. According to Merritt, a defendant "who honestly but mistakenly believes that a conspiracy has terminated by abandonment, prior to the commission of any overt acts, does not have the mental state required for conviction of conspiracy."

Merritt did not request a mistake of fact instruction. Nevertheless, the trial court has a duty to instruct on general principles of law relevant to the issues raised by the evidence. (People v. Kimble (1988) 44 Cal.3d 480, 503.) The court in fact has a sua sponte duty to instruct on a particular defense "if it appears that the defendant is relying on such a defense, or if there is substantial evidence supportive of such a defense and the defense is not inconsistent with the defendant's theory of the case." (People v. Sedeno (1974) 10 Cal.3d 703, 716, overruled on other grounds in People v. Flannel (1979) 25 Cal.3d 668, 684, fn. 12.)

Merritt acknowledges she did not rely on a mistake of fact defense at trial. On the contrary, her counsel argued to the jury that Merritt was not even present at the time of the offenses. Counsel relied on the testimony by Tyler that he left Merritt behind at his motel room and evidence that Merritt had a cast on her hand at the time but Doe made no mention of anyone in the group having a cast. In other words, Merritt's counsel took an all or nothing approach to the case.

Any argument that Merritt mistakenly thought the others had abandoned their plan to murder Doe would have presupposed that Merritt was present at the time. In other words, a mistake defense would have been inconsistent with Merritt's theory of ...


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